State v. Metheny, 20-0546

CourtSupreme Court of West Virginia
Writing for the CourtARMSTEAD, Justice
Citation245 W.Va. 719,865 S.E.2d 461
Parties STATE of West Virginia, Respondent v. Jamie Lynn METHENY, Petitioner
Docket NumberNo. 20-0546,20-0546
Decision Date05 November 2021

245 W.Va. 719
865 S.E.2d 461

STATE of West Virginia, Respondent
v.
Jamie Lynn METHENY, Petitioner

No. 20-0546

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2021
Filed: November 5, 2021


Ryan C. Shreve, Esq., Shreve Law Firm, Morgantown, West Virginia, Counsel for Petitioner.

Patrick Morrisey, Esq., Attorney General, Gordon L. Mowen, II, Esq., Assistant Attorney General, Lara K. Bissett, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent.

ARMSTEAD, Justice:

865 S.E.2d 463

Petitioner Jamie Lynn Metheny ("Petitioner") pled guilty to a felony offense and was sentenced to two years of incarceration in 2015. The circuit court suspended her sentence and placed her on supervised probation for five years. When the court entered its order, W. Va. Code § 62-12-11 ("2015 probation statute") permitted a probation period of up to five years. This statute was amended in 2017. The 2017 version of W. Va. Code § 62-12-11 ("2017 probation statute") permits a probation period of up to seven years. Petitioner committed a probation violation in 2020. The circuit court determined that the 2017 probation statute applied to Petitioner's 2020 probation violation and entered an order extending Petitioner's probation period past five years.

On appeal, Petitioner contends that when she was placed on probation in 2015, the statutory term of her probation could not exceed five years. While that statute was amended in 2017 to permit a probation period of up to seven years, Petitioner argues that the 2017 probation statute cannot be applied to her under ex post facto principles.

After review, we find no error with the circuit court's order. Petitioner's 2020 probation violation, not her 2015 felony conviction, triggered the application of the 2017 probation statute. Therefore, we find no ex post facto violation and affirm the circuit court's July 10, 2020, order.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Petitioner was indicted on seventeen felony counts involving the fraudulent use of an access device in violation of W. Va. Code § 61-3C-13 (1989). Petitioner entered a guilty plea to the first count of the indictment in exchange for the dismissal of the remaining sixteen counts. The circuit court accepted Petitioner's guilty plea and sentenced her to two years of incarceration. However, the circuit court suspended the sentence and placed Petitioner on supervised probation for five years. When the court entered its order in August of 2015, the 2015 probation statute1 permitted a probation period of up to five years. The effective start date of Petitioner's probation period was August 11, 2015.

865 S.E.2d 464

Between 2015 and 2020, four petitions to revoke Petitioner's probation were filed. The instant appeal involves the circuit court's ruling on the fourth petition to revoke Petitioner's probation, which the State filed in June of 2020. The circuit court entered an order on July 10, 2020, finding that Petitioner violated the terms of her probation—she left West Virginia and was living in Pennsylvania without informing her probation officer. Petitioner admitted to this violation. The circuit court did not revoke Petitioner's probation and order that she be incarcerated for the remainder of her sentence. Instead, noting that W. Va. Code § 62-12-1 had been amended in 20172 to permit a probation period of up to seven years, the circuit court ordered that Petitioner's probation period would be extended through August 21, 2021. After entry of the circuit court's order, Petitioner filed the instant appeal.

II. STANDARD OF REVIEW

Our standard of review is as follows: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M v. Charlie A.L. , 194 W. Va. 138, 459 S.E.2d 415 (1995).

III. ANALYSIS

On appeal, Petitioner argues that the circuit court erred "by violating ex post facto principles in ruling [that] it had the authority to extend Petitioner's sentence to a probationary period beyond five years." Petitioner asserts that the extension of her probation period increased her punishment, lengthened her sentence, and operated to her detriment in violation of this Court's prohibition against ex post facto punishment contained in Adkins v. Bordenkircher , 164 W. Va. 292, 262 S.E.2d 885 (1980).3

The State has confessed error. According to the State, the circuit court did not have the authority to extend Petitioner's probation term beyond five years under the plain language of the 2015 probation statute. The State argues that this matter should be decided purely on a statutory basis and that this Court should find that under the 2015 probation statute, Petitioner's probation period could not exceed five years. Further, the State asserts that it is unnecessary for the Court to analyze this issue pursuant to our ex post facto jurisprudence. However, the State provides that if the Court considers Petitioner's ex post facto challenge, it should determine that the circuit court's reliance on the 2017 probation statute did not violate ex post facto principles because, for the limited purpose of an ex post facto analysis, probation is an act of leniency rather than a punitive part of Petitioner's sentence.

As an initial matter, we do not accept the State's confession of error. We have held that "[t]his Court is not obligated to accept the State's confession of error in a criminal case. We will do so when, after a proper analysis, we believe error occurred." Syl. Pt. 8, State v. Julius , 185 W. Va. 422, 408 S.E.2d 1 (1991). Stated another way, "confessions of error do not automatically entitle a party to a reversal[;] reversal is required when it can be ascertained that the errors confessed are

865 S.E.2d 465

supported by law." State v. Berrill , 196 W. Va. 578, 587, 474 S.E.2d 508, 517 (1996) (internal quotations and citations omitted). We disagree with the State's contention that this case can be decided without addressing Petitioner's ex post facto argument. The issue in this matter is whether the 2015 or 2017 probation statute applied to Petitioner's 2020 probation violation. To resolve that question, we must examine whether the circuit court's reliance on the 2017 probation statute was permissible under our ex post facto jurisprudence. Therefore, we reject the State's confession of error and proceed to examine Petitioner's ex post facto argument.

Petitioner asserts that the circuit court's extension of her probation period beyond five years was impermissible under our ex post facto jurisprudence. In reviewing Petitioner's argument, we begin by noting that the United States Supreme Court addressed the Ex Post Facto Clause in Beazell v. Ohio , 269 U.S. 167, 169-170, 46 S.Ct. 68, 70 L.Ed. 216 (1925) :

It is settled ... that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with [a] crime of any defense available according to law at the time when the act committed, is prohibited as ex post facto.

Determining whether a law violates the Ex Post Facto Clause has two components, "a law must be retrospective—that is, it must apply to events occurring before its enactment—and it must disadvantage the offender affected by it ... by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis , 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997) (internal citation and quotation omitted). One of the main purposes of ex post facto prohibition is to ensure that individuals have "fair warning" about the effect of criminal statutes. Landgraf v. USI Film Products , 511 U.S. 244, 267, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). This Court has held that "[u]nder Ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him." Syl. Pt. 1, Adkins v. Bordenkircher , 164 W. Va. 292, 262 S.E.2d 885.

While this Court has had numerous occasions to address ex post facto challenges, we have not examined the precise situation presented in the instant appeal in which a circuit court applied the 2017 probation statute to a defendant who was originally placed on probation pursuant to our 2015 probation statute, but who committed a probation violation after the 2017 statute was enacted. Courts from outside of our jurisdiction have considered ex post facto challenges under similar circumstances.

One legal treatise addressing this issue provides that "[a]s a general rule, the law in effect at the time of a defendant's commission of a criminal offense or conviction ordinarily remains the law that governs questions relating to the defendant's parole or probation." Neil P. Cohen, Law of Probation & Parole , § 18:9 (2020). However, this treatise notes an exception to the general rule:

If a person is convicted and sentenced to serve a term of
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