State v. White

• Decision Date: 31 October 2022
• Docket Number: 21-0472
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Michael Lee White, Defendant Below, Petitioner
• Court: Supreme Court of West Virginia

State of West Virginia, Plaintiff Below, Respondent v. Michael Lee White, Defendant Below, Petitioner

No. 21-0472

Supreme Court of Appeals of West Virginia

October 31, 2022

Berkeley County CC-02-2019-F-334

MEMORANDUM DECISION

Petitioner Michael White ^[1] appeals the May 24, 2021, order of the Circuit Court of Berkeley County revoking petitioner's home incarceration and sentencing him to an indeterminate five-to-twenty-five-year term of incarceration. Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R.A.P. 21.

In October of 2019, petitioner was indicted on six counts of distribution of a controlled substance (fentanyl) and one count of distribution of a controlled substance (heroin). In January of 2021, petitioner was placed on home incarceration as a condition of pretrial bond and agreed to its terms and conditions. In February of 2021, the parties entered into a plea agreement by which petitioner agreed to plead guilty to two counts of distribution of a controlled substance (fentanyl), and the State agreed to dismiss the remaining counts. In April of 2021, petitioner pled guilty, and the circuit court sentenced him to two-to-ten years of incarceration for one count and three-to-fifteen years of incarceration for the other. The court ordered that these sentences run consecutively, resulting in an aggregate sentence of five-to-twenty-five years of incarceration. The court further ordered that petitioner serve his sentence on home incarceration "under standard terms and conditions as well as any other term deemed necessary by the supervising officer to meet [petitioner's] needs."

On May 5, 2021, the State filed a motion to revoke home incarceration, alleging that petitioner violated the terms and conditions seventeen times. The first nine of the listed violations occurred prior to petitioner's sentencing date, between January 8, 2021, and March 21, 2021, and the remaining seven occurred after sentencing. In general, petitioner was alleged to have used alcohol once (in January of 2021) "depart[ed] his residence and/or [made] unauthorized stops" twelve times, allowed his GPS monitor to shut off due to lack of power (twice prior to sentencing), and failed to report for drug treatment at the day report center as directed. The motion indicated that petitioner "was direct[ed] to contact [the case manager at the day report center] for treatment due to his failed [alcohol] screen and has refused treatment." According to the motion petitioner signed voluntary admission forms for each listed violation.

The circuit court held a home incarceration revocation hearing on May 20, 2021. Petitioner challenged the admissibility of all seventeen violations based on the fact that some of the violations occurred prior to his sentencing. Ultimately, the circuit court ruled that, in determining whether a violation had occurred, it would consider only the violations that were alleged to have occurred after sentencing. However, if it determined that a violation had occurred, it would consider the totality of the violations at disposition.

The home incarceration officer testified that the rules of home incarceration delineated authorized and unauthorized locations but gave the option for incarcerated individuals to text their home incarceration officer for permission to travel to unauthorized locations. The officer testified that petitioner committed numerous violations between April 30, 2021, and May 2, 2021, including making four unauthorized stops when he was otherwise required to be at home; traveling to a store without permission during a two-hour round trip; traveling to a clothing store without prior permission; and allowing the battery in his GPS monitor to die.^[2]

The home incarceration officer also testified that he referred petitioner to the day report center on March 22, 2021, prior to the sentencing date, after petitioner tested position for alcohol on January 8, 2021. However, petitioner never reported to the center. According to the officer, his policy was to refer every individual who tested positive for alcohol or controlled substances to the day report center for alcohol or drug treatment/counseling. The officer explained that petitioner was initially supervised by a different officer in January of 2021, which was why the referral was not made until March.

The officer clarified that petitioner did not have a set schedule for work or other responsibilities. Petitioner would meet with the officer on Fridays to discuss his weekend schedule, but there was no other schedule provided. The officer explained that the text messaging system was the best way to receive approval to travel out of the home. The evidence showed that petitioner was aware of these terms and messaged the officer seeking approval for travel multiple times, and, in some instances, the officer did not respond to his requests.

Ultimately, the circuit court found that petitioner violated the terms and conditions of home incarceration. It determined that petitioner traveled without authorization to multiple locations between April 30, 2021, and May 2, 2021. The court also found that petitioner allowed his GPS monitor battery to die, which was especially concerning considering that petitioner was provided with a car charger for the monitor, which facilitated keeping the device charged. Regarding petitioner's attempts to seek authorization, the circuit court found that petitioner left his home regardless of whether he was granted authorization, which was in clear violation of the terms of his home incarceration. The circuit court proceeded to disposition and imposed petitioner's underlying sentence, relying on his extensive criminal history and his failure to comply with the requirements of his home incarceration. The circuit court's May 24, 2021, order memorialized its decision. Petitioner now appeals that order.

On appeal, petitioner asserts that the circuit court erred in failing to include a set schedule in the order sentencing him to home incarceration and abused its discretion in finding that he failed to report to the day report center as required by his home incarceration officer.^[3] Our home incarceration statute provides:

If, at any time during the period of home incarceration, there is reasonable cause to believe that a participant sentenced to home incarceration by the circuit court has violated the terms and conditions of the circuit court's order of home incarceration and the participant's participation was imposed as an alternative sentence to another form of incarceration, the participant is subject to the same procedures involving confinement and revocation as would a probationer charged with a violation of the order of home incarceration.

W.Va. Code § 62-11B-9(b), in part. We, therefore, review the questions before us in the same manner we would review the revocation of probationary home incarceration.

"When reviewing the findings of fact and conclusions of law of a circuit court sentencing a defendant following a revocation of probation, we apply a three-pronged standard of review. We review the decision on the probation revocation motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review." Syllabus Point 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997).

Syl. Pt. 1, State v. Hosby, 220 W.Va. 560, 648 S.E.2d 66 (2007).

In this case, there is no meaningful dispute that petitioner violated the terms and conditions of his home incarceration. Petitioner acknowledged the terms and conditions of his home incarceration and signed voluntary admission forms for each violation. We find petitioner's argument that the lack of a predetermined schedule prejudiced him unavailing. In the circuit court's words, "while a texting system is certainly not optimal, it is the system with which [petitioner] was told to follow, and he essentially disregarded the system that was put in place." The circuit court found that petitioner traveled without authorization on multiple occasions and allowed his GPS monitoring system to lose power, which were clear violations of his terms of home incarceration.

Finally petitioner argues that he was not afforded due process in the modification of the terms of his home incarceration, in accordance with this Court's holding in Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976). However, petitioner failed...