State v. Rose
| Decision Date | 18 December 1972 |
| Docket Number | No. 12987,12987 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Samuel Blaine ROSE. |
Syllabus by the Court
1. Probation is a matter of grace and not a matter of right.
2. Where a probationer leaves the county and state in violation of the conditions of his probation, such action constitutes grounds for the revocation of the probation.
3. The refusal to allow a report of a probation officer to be furnished to the probationer's counsel during a hearing to revoke probation is not a violation of due process.
Wilson, Frame & Rowe, Clark B. Frame, Morgantown, for plaintiff in error.
Chanuncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, for defendant in error.
BERRY, Acting President:
The appellant, Samuel Blaine Rose, appeals from a final order of the Circuit Court of Monongalia County entered on June 9, 1970 which revoked the appellant's probation and remanded him to the penitentiary to serve his previously imposed sentence of two to five years as a result of his conviction for possession of marihuana.
The appellant, while a freshman at West Virginia University, was arrested for speeding and reckless driving as he was driving from one campus to the other between classes and was taken by the state police officer to a justice of the peace who fined the appellant fifty dollars. However, appellant was unable to pay the fine and was taken to jail where he was searched by the jailer who found four or five grams of marihuana in appellant's possession. The appellant was subsequently indicted by the Grand Jury of Monongalia County in January, 1969 for possession of marihuana and he pleaded guilty on January 16, 1969. On February 13, 1969 appellant was sentenced to two to five years in the West Virginia State Penitentiary. However, the sentence was suspended and appellant was placed on probation for three years.
One of the conditions of appellant's probation was that he could not leave the state without the Circuit Court's consent.
Another condition was that he could not leave the county or the state without the written permission of his probation officer.
On January 12, 1970 the appellant was arrested in Oakland, Maryland, for conspiring to violate the Maryland narcotics laws. Although the charges against him were subsequently dropped, the appellant was returned to Monongalia County and a hearing was held on June 9, 1970 to determine whether appellant's probation should be revoked for his unauthorized departure from the State of West Virginia.
The appellant testified that shortly before noon on the day in question he decided to visit a close friend of his, David Boggess, who lived in Aurora, Preston County, West Virginia. Appellant stated that he attempted to telephone his probation officer but there was no answer. Appellant then decided that he could go to Preston County without contacting his probation officer because his probation officer had previously given him general permission to visit Coopers Rock, a rugged mountainous area which was partly in Preston County. Appellant stated that since there was snow on the ground, he decided not to take the most direct road on which he would have stayed in West Virginia the entire way, because that road crossed the mountains. Instead, he took a road which crossed into Maryland for seven or eight miles. The appellant testified that he picked up a hitchhiker, Kenneth Leopold, whom he had not previously known. Leopold stated to appellant that he was going to Oakland, Maryland. However, at Oakland, Leopold could not find the person whom he was supposed to meet so he continued on to Aurora with the appellant. The appellant testified that they spent about forty-five minutes in Aurora visiting with his friend and then started back. Upon arriving in Oakland, the hitchhiker again wanted to search for his friend, and appellant, while waiting in the car for the hitchhiker to return, was arrested after the hitchhiker had apparently attempted to have a forged prescription filled in a drug store.
During the hearing to revoke appellant's probation, the appellant's maternal grandmother and a family friend testified on appellant's behalf that the appellant had never been in any trouble at school or with the police prior to his conviction for possession of marihuana and that he was an intelligent student and an asset to the community. The probation officer testified that he had cerefully explained to the appellant each condition of his probation and that the appellant had asked and had received permission on one occasion to leave West Virginia temporarily on a motorcycle trip into western Virginia.
The trial court, at the conclusion of the hearing, revoked appellant's probation and remanded him to the penitentiary to serve his sentence.
The appellant contends the trial court abused its discretion in revoking his probation under the circumstances involved in this case and that it erred in not allowing counsel for appellant to examine the probation officer's written report to the court.
It is crystal clear from the testimony of the witnesses who testified at the hearing to revoke the appellant's probation that he violated the conditions of his probation. The appellant admits this fact in his own testimony. Two of the specific conditions upon which the appellant was granted probation provided that he could not leave Monongalia County without written consent of the county probation officer, and could not leave the state without the consent of the circuit court. Both of these conditions were violated. The appellant made no attempt whatsoever to obtain the consent of the court to leave the state, and left the county without obtaining either oral or written consent from the county probation officer. The appellant stated that he called the probation officer shortly before noon but nobody answered the telephone so he left without obtaining permission. The appellant and his witnesses testified that the probation officer had allowed him to go to Coopers Rock which is located in both Monongalia and Preston Counties and indicated that he had continuing permission to do so, but this was denied by the probation officer. However, on the trip in question, he went to Aurora to see a friend and not to Coopers Rock. He drove to his friend's home in another county and picked up a hitchhiker on the way. The hitchhiker was arrested for attempting to obtain durgs with a forged prescription for which he was subsequently convicted. The charges against the appellant were dismissed after which he was returned to the custody of the officials in Monongalia County. The Monongalia County probation officer reported the violation of the probation conditions to the Circuit Court of Monongalia County, resulting in the hearing and revocation of the appellant's probation and the execution of the sentence of from two to five years previously imposed.
This Court has held on many occasions, as well as the courts of other states, that probation is a matter of grace and not a matter of right. State v. Loy, 146 W.Va. 308, 119 S.E.2d 826; State ex rel. Render v. Wood, 152 W.Va. 484, 165 S.E.2d 102; State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90; State ex rel. Riffle v. Thorn, 153 W.Va. 76, 168 S.E.2d 810.
It has been held in other jurisdictions that where the probationer leaves the county, or the state, in violation of the conditions of his probation, such action constitutes grounds for the revocation of the probation. See Hilts v. State, (Tex.Cr.App.), 476 S.W.2d 283 and Bailey v. State, (Okl.Cr.App.), 494 P.2d 1252.
The statute governing the revocation of probation, Code, 62--12--10, as amended, provides that if there is reason to believe that the probationer has violated any condition of his probation he may be arrested, with or without an order or warrant, and brought before the court which placed him on probation for a prompt and summary hearing, and if at the hearing it shall appear to the satisfaction of the court that any condition of the probation has been violated the court may revoke the suspension of the execution of the sentence. It appears from the facts in the case at bar that there was a violation of the conditions of probation and consequently the trial judge did not abuse his discretion in revoking the probation of the appellant.
It is also the appellant's contention that the trial court erred in refusing to allow his counsel the opportunity to see the probation officer's report, and that such refusal was a denial of due process. This contention is not well taken.
It would appear that the refusal to allow a pre-sentence report to be furnished the defendant's counsel is not a violation of due process. See Baker v. United States, 4 Cir., 388 F.2d 931; Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed....
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...and on certain conditions.’ ") (quoting State v. Loy , 146 W.Va. 308, 318, 119 S.E.2d 826, 832 (1961) ); Syl. pt. 1, State v. Rose , 156 W.Va. 342, 192 S.E.2d 884 (1972) ("Probation is a matter of grace and not a matter of right."); State ex rel. Riffle v. Thorn , 153 W.Va. 76, 81, 168 S.E.......
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