Opinion
No. 20-0546
11-05-2021
STATE of West Virginia, Respondent v. Jamie Lynn METHENY, Petitioner
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.
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: 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 statute permitted a probation period of up to five years. The effective start date of Petitioner's probation period was August 11, 2015. 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 2017 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.
The version of W. Va. Code § 62-12-11 in effect in 2015 provided as follows:
The period of probation together with any extension thereof shall not exceed five years. Upon the termination of the probation period, the probation officer shall report to the court the conduct of the probationer during the period of his probation, and the court may thereupon discharge the probationer or extend the probation period. Whenever, before the end of the probation period the probationer has satisfactorily complied with all the conditions of his probation and it appears to the court that it is no longer necessary to continue his supervision, the court may discharge him. All orders extending the probation period and all orders of discharge shall be entered in the records of the court, and a copy of all such orders shall be sent by the clerk of the court to the board within five days after the making of the order.
The 2017 version of W. Va. Code § 62-12-11 provides as follows:
The period of probation together with any extension thereof shall not exceed seven years. Upon the termination of the probation period, the probation officer shall report to the court the conduct of the probationer during the period of his or her probation, and the court may thereupon discharge the probationer or extend the probation period. Whenever, before the end of the probation period, the probationer has satisfactorily complied with all the conditions of his or her probation and it appears to the court that it is no longer necessary to continue his or her supervision, the court may discharge him or her. All orders extending the probation period and all orders of discharge shall be entered in the records of the court, and a copy of all such orders shall be sent by the clerk of the court to the board within five days after the making of the order.
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).
Petitioner also asserts that the circuit court's order violated the prohibition against ex post facto punishment as set forth in Article III, Section 4 of the West Virginia Constitution : "No bill of attainder, ex post facto law, or law impairing the obligation of a contract shall be passed." Ex post facto prohibition is also contained in Article I, Section 10, clause 1 of the United States Constitution : "No State shall ... pass any Bill of Attainder, ex post facto law, or law impairing the Obligation of Contracts."
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 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 probation, and a statute is subsequently passed that adversely affects probation rights in general, it cannot be applied to the original conviction , but it can be applied to probation violations that occur after the effective date of the statute. As an example, North Dakota passed a statutory amendment that grants courts authority to revoke probation after the probation period has ended. This statute has been interpreted by the North Dakota Supreme Court not to apply to the original conviction (e.g., not to apply to a probation violation that occurred prior to the statute's passage), but to apply only to probation violations that have occurred after the amendment was adopted.
Id. (emphasis added).
In State v. Monson , 518 N.W.2d 171 (N.D. 1994), the North Dakota Supreme Court found no ex post facto violation where an amended probation statute was applied to an individual whose original conviction occurred prior to the amended probation statute being enacted, but who committed a probation violation after the amended probation statute was enacted. The court in Monson found support for its ruling in decisions from South Dakota, California, and Colorado, which had all concluded that a probation or parole statute that had been amended after a defendant's original conviction could not be applied to the original conviction, but could be applied to a probation or parole violation committed after the new statute was enacted. The North Dakota Supreme Court explained:
In In re Williams , 488 N.W.2d 667 (S.D. 1992), the South Dakota Supreme Court held that a 1986 provision of a statute regarding suspension of parole supervision time was not ex post facto because it was applied not to the defendant's 1981 conviction but to his 1987 parole violation. We agree with the court's reasoning. Here, the current statute, which expressly grants authority to the trial court to revoke probation after the probation has terminated, is not being applied to Monson's conviction, but to his alleged probation violation. It is his acts subsequent to the amendment of the statute that are at issue. See also , e.g., In re Nolasco , 181 Cal.App.3d 39, 226 Cal.Rptr. 65 (Ct. App. 1986) [holding that extension of parole revocation terms for acts which occurred after effective date of statute subjecting parolee to additional penalties for misconduct in prison was not ex post facto]; Gasper v. Gunter , 851 P.2d 912 (Colo. 1993) [holding that application of statute revoking parole time credit was not ex post facto where application was triggered by defendant's acts committed after statute became effective].
Similarly, in John L. v. Superior Court , 33 Cal.4th 158, 14 Cal. Rptr. 3d 261, 91 P.3d 205 (2004), the Supreme Court of California considered an ex post facto challenge to an amended probation statute that had been applied to petitioners whose original crimes were committed prior to the statute being amended. The court described the specific challenge as follows:
Petitioners argue that [the] amended [probation statute] is retroactive as applied to them, because it affects probation ordered for ... crimes predating [the amended probation statute]. Though triggered by new misconduct committed and litigated after [the amended probation statute] took effect, the new statutory rules for proving probation violations assertedly relate back to the prior criminal acts for ex post facto purposes.
14 Cal. Rptr. 3d at 269-70, 91 P.3d at 212.
The Supreme Court of California rejected this argument, explaining:
No federal or state authority compels acceptance of this claim. Both this court and the Courts of Appeal have long held that someone who was convicted and sentenced for one crime, and who commits a new crime or other misconduct while either on conditional release or in custody for the original conviction, is subject to new penalties and adverse procedural laws enacted between the time of the two acts. Rejecting ex post facto claims like the one raised here, these cases reason that the new law merely alters the legal consequences of new misconduct (as opposed to prior crimes), and that it therefore has prospective (as opposed to retroactive) effect.
14 Cal. Rptr. 3d at 270, 91 P.3d at 212-13.
We note that courts outside our jurisdiction are not unanimous on this issue. In State v. Mendivil , 121 Ariz. 600, 592 P.2d 1256 (1979), the Supreme Court of Arizona determined that an amended probation statute could not be applied to persons convicted of offenses prior to the new statute becoming effective. The court in Mendivil noted that probation is often considered a matter of grace, rather than a punishment. 592 P.2d at 1258. However, it found that under the circumstances of the case, "probation may nevertheless constitute a penalty for purposes of the ex post facto laws." Id. In so ruling, the court in Mendivil recognized the split of authority that exists on this issue:
[w]e reach this conclusion mindful that in a closely related situation other jurisdictions have held that because parole is a matter of legislative grace, statutes which change or modify eligibility for parole in a manner detrimental to a prisoner are not ex post facto laws and hence not unconstitutional. E.g., Petition of Beaton , 354 Mass. 670, 241 N.E.2d 845 (1968) ; State ex rel. Koalska v. Swenson , 243 Minn. 46, 66 N.W.2d 337 (1954), Cert. denied , 348 U.S. 908, 75 S.Ct. 308, 99 L.Ed. 712 (1955) ; Zink v. Lear , 28 N.J.Super. 515, 101 A.2d 72 (1953). While we agree that probation or parole is not a constitutional right but a matter of legislative grace ... we prefer to join those jurisdictions which subscribe to the premise that statutes detrimentally affecting parole eligibility are unconstitutional insofar as applied to a prisoner charged with commission of a crime prior to the enactment of the statute. E.g., In re Griffin , 63 Cal.2d 757, 48 Cal.Rptr. 183, 408 P.2d 959 (1965) ; Nelson v. Ellsworth , 142 Mont. 14, 380 P.2d 886 (1963) ; Goldsworthy v. Hannifin , 86 Nev. 252, 468 P.2d 350 (1970) ; State ex rel. Mueller v. Powers , 64 Wis.2d 643, 221 N.W.2d 692 (1974).
The dissent acknowledges our conclusion that there is a split of authority on this issue from courts outside of our jurisdiction. The dissent relies on Johnson v. United States , 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), in support of its position that the extension of Petitioner's probation was an ex post facto violation. Petitioners in John L. v. Superior Court also relied on Johnson in support of their ex post facto challenge. We agree with the Supreme Court of California's analysis rejecting petitioners’ reliance on Johnson :
Petitioners ... rely on dictum in Johnson v. United States (2000) 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 ( Johnson ), as persuasive authority for their retroactivity claim. There, a convicted felon, Johnson, committed new misconduct that violated the terms of his federal "supervised release," which is not unlike parole. The district court revoked Johnson's supervised release, resentenced him to prison, and ordered him to serve an additional year of supervised release when he left prison. The statutory source of the last requirement was unclear.
In the Sixth Circuit Court of Appeals, Johnson argued that the additional period of supervised release was not authorized by federal law when he committed the crime for which he was originally convicted. Johnson also claimed that his sentence could not be upheld under a new statute explicitly authorizing additional terms of supervised release. Because the new statute was enacted before the new misconduct but after the original crime, Johnson claimed its application would retroactively increase punishment for that crime in violation of the ex post facto clause.
The Sixth Circuit agreed with Johnson that only the new statute permitted an additional period of supervised release of the kind he received. Nevertheless, Johnson's ex post facto challenge to the new statute failed. The appellate court held that because revocation and related provisions of the new statute penalized Johnson for violating the conditions of his initial term of supervised release, they were prospective only and did not impermissibly enhance punishment for the original crime.
The United States Supreme Court found it "unnecessary" to reach and resolve this ex post facto question in order to uphold Johnson's sentence. Instead, as reflected in the bulk of the court's opinion, Johnson affirmed the judgment solely on statutory grounds.
14 Cal. Rptr. 3d at 270-71, 91 P.3d at 213 (internal citation omitted).
The Supreme Court of California further noted that
[t]he court in Johnson ... cited Greenfield v. Scafati (D. Mass. 1967) 277 F.Supp. 644, summarily affirmed sub nomine Scafati v. Greenfield (1968) 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (per curiam), for the proposition that revocation and related sanctions are generally attributed to the original crime. In Greenfield , a parole violator lost the right to earn good conduct credits during his first six months back in prison under a statute enacted after he committed his original crime but before he violated parole. Greenfield found an ex post facto violation because the new statute disadvantaged the inmate by delaying his eligibility for early release. Greenfield did not explain its apparent assumption that the loss of credits was part of the punishment for the original crime. Nor did Greenfield consider whether the new statute operated prospectively by sanctioning parole violations committed after it took
effect. Though not cited in Johnson various federal and out-of-state cases have concluded, notwithstanding the approach in Greenfield that post[-]revocation sanctions do not necessarily relate to the original crime for ex post facto purposes. These courts also have declined to invalidate statutes as impermissibly retroactive under circumstances similar to those present in both Greenfield and Johnson . (E.g., U.S. v. Byrd (5th Cir. 1997) 116 F.3d 770, 772-773 ; U.S. v. Reese (6th Cir. 1995) 71 F.3d 582, 590-591 ; Souza v. State (Alaska Ct. App. 1990) 792 P.2d 289, 290 ; Gasper v. Gunter (Colo. 1993) 851 P.2d 912, 917-918 ; Anderson v. Bruce (2002) 274 Kan. 37, 50 P.3d 1, 7-8 ; Still v. State (Me. 1969) 256 A.2d 670, 672-673 ; Petition of Beaton (1968) 354 Mass. 670, 241 N.E.2d 845, 847-848 ; State v. Serena (Minn. Ct. App. 2003) 673 N.W.2d 182, 187-188 ; State v. Monson (N.D. 1994) 518 N.W.2d 171, 172-173 ; People ex rel. Newland v. Travis (N.Y Sup.Ct.2000) 185 Misc.2d 881, 714 N.Y.S.2d 627, 632 ; Watkins v. Class (S.D. 1997) 566 N.W.2d 431, 433-434.)
14 Cal. Rptr. 3d at 281, n. 6, 91 P.3d at 222, n. 6 (internal citation omitted).
We agree with the reasoning of the California, Colorado, North Dakota, and South Dakota courts which found no ex post facto violation under circumstances similar to the instant case. We hold that applying W. Va. Code § 62-12-11 (2017) to a probation violation that occurred after this statute became effective does not implicate the ex post facto prohibitions of the United States and West Virginia Constitutions.
Applying this holding to the present case, we find that the application of the 2017 probation statute to Petitioner was triggered by her 2020 probation violation, not by her original 2015 conviction. Had Petitioner not committed a probation violation after the 2017 probation statute was enacted, the 2017 statute would not have been applied to her. Therefore, we find that the 2017 probation statute was not applied retroactively to Petitioner's 2015 conviction, rather, it was applied prospectively to her 2020 probation violation. Under these circumstances, we find no ex post facto violation.
Additionally, we reject Petitioner's assertion 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 . This Court has long held that "[p]robation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime." Syl. Pt. 2, State ex rel. Strickland v. Melton , 152 W. Va. 500, 165 S.E.2d 90 (1968). This is so because "probation is simply one of the devices of an enlightened system of penology which has for its purpose the reclamation and rehabilitation of the criminal." Id. at 506, 165 S.E.2d at 94 (internal quotation omitted). Thus, "the decision as to whether the imposition of probation is appropriate in a certain case is entirely within the circuit court's discretion." State v. Duke , 200 W. Va. 356, 364, 489 S.E.2d 738, 746 (1997).
In State v. Duke , this Court provided:
We have recognized that probation is a privilege of conditional liberty bestowed upon a criminal defendant through the grace of the circuit court. See, e.g., State ex rel. Winter v. MacQueen , 161 W.Va. 30, 32-33, 239 S.E.2d 660, 661-62 (1977) (" ‘[A] defendant convicted of a crime has no absolute right to probation, probation being a matter of grace only, extended by the State to a defendant convicted of a crime, in certain circumstances 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.2d 810, 813 (1969) (" ‘Probation or suspension of sentence comes as an act of grace to one convicted of a crime[.]’ ") (quoting Escoe v. Zerbst , 295 U.S. 490, 492, 55 S.Ct. 818, 819, 79 L.Ed. 1566, 1568 (1935) ).
Id. at 364, 489 S.E.2d at 746.
Based on the foregoing, it is clear that probation is not a punishment, it is an act of grace. Further, probation is not part of a defendant's sentence. In fact, probation may only be imposed once a defendant's sentence has been suspended. See W. Va. Code § 62-12-3 (2014) (granting court discretion to suspend sentence and release offender on probation). Therefore, Petitioner cannot satisfy the first two prongs of Adkins because the circuit court's 2020 order extending Petitioner's probation term was neither an increase in her punishment, nor did it lengthen her sentence.
Petitioner relies on State v. Varlas , 243 W. Va. 447, 844 S.E.2d 688 (2020), in support of her argument that probation is a part of a criminal sentence. We find no support for Petitioner's argument because the Court's ruling in Varlas —that a grant of probation is part of a defendant's sentence and is therefore part of the penalty prescribed by law—was only "[f]or the limited purpose of an Eden analysis. " Id. at 453, 844 S.E.2d at 695 (emphasis added). An "Eden analysis" involves a claim by a petitioner that he received a harsher sentence after successfully pursuing an appeal. Id. at 450-51, 844 S.E.2d at 691-92. Thus, the Court's holding in Varlas has no application to the present matter because Varlas dealt solely with whether an individual who seeks and receives appellate relief may be constitutionally subjected to a harsher penalty upon remand. This issue is not present in the instant case. Therefore, we find Petitioner's reliance on Varlas to be misplaced.
Further, we do not agree with Petitioner that the circuit court's reliance on the 2017 probation statute operated to her detriment. Petitioner was before the circuit court in June of 2020 after the State filed its fourth petition to revoke her probation. Petitioner admitted that she had committed the probation violation at issue. Rather than revoking her probation and ordering that Petitioner be incarcerated for the remainder of her suspended sentence, the circuit court allowed her to remain on probation, in an act of grace, by extending her probation period for an additional year pursuant to the 2017 probation statute. Because the circuit court permitted Petitioner to remain on probation pursuant to the 2017 probation statute, rather than ordering that she be incarcerated, we cannot find that the circuit court's reliance on the 2017 probation statute operated to her detriment.
Finally, we emphasize that 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. at 267, 114 S.Ct. 1483. Applying the 2017 probation statute to a probation violation Petitioner committed in 2020 did not deprive her of "fair warning" about the effect of the new statute. Because the 2017 probation statute was not applied retrospectively to Petitioner, and because the effect of its application did not increase her punishment, lengthen her sentence, or operate to her detriment, we find no ex post violation.
IV. CONCLUSION
We affirm the circuit court's July 10, 2020, order.
Affirmed.
JUSTICE WOOTON dissents and reserves the right to file a dissenting Opinion.
WOOTON, J., dissenting:
At the time petitioner Jamie Lynn Metheny committed the criminal conduct for which she was punished with the sentence of a definite term of two (2) years, which the circuit court suspended for a period of supervised probation for five (5) years from August 11, 2015, or until approximately August 11, 2020, the express provisions of West Virginia Code § 62-12-11 (2014) only allowed for a maximum five-year period of probation. The Legislature amended this statute in 2017 as follows: "The period of probation together with any extension thereof shall not exceed seven years." Id . § 62-12-11 (2020). In 2020, only a month before her five-year probationary term was set to expire, petitioner violated the terms and conditions imposed upon her by the circuit court in its 2015 sentencing order. Then, applying the 2017 version of the statute rather than the 2015 version, the circuit court punished petitioner for the violation by increasing her period of probation beyond five years.
Petitioner pleaded guilty to a single count of Fraudulent Use of an Access Device.
The violation involved petitioner leaving the State without permission and failing to advise her probation officer that she was living with her child's father in the Commonwealth of Pennsylvania. Ironically, the circuit court granted petitioner "permission to reside in the Commonwealth of Pennsylvania" during the same proceeding that resulted in petitioner's term of probation being extended.
The only issue before this Court is whether the original statutory five-year or the amended statutory seven-year maximum term of probation applies. The majority has concluded that "[a]pplying W. Va. Code § 62-12-11 (2017) to a probation violation that occurred after this statute became effective does not implicate the ex post facto prohibitions of the United States and West Virginia Constitutions." The majority's holding is contrary to the express and unambiguous provisions of West Virginia Code § 62-12-11 (2017), ignores the State's concession that the circuit court's application of the amended 2017 version of the statute constituted error, and implicitly overturns – or at a minimum ignores – long-standing precedent in regard to a circuit court's jurisdiction in cases involving probation revocation and ex post facto law. Because I vehemently disagree with the majority opinion in this case, I respectfully dissent.
The majority's opinion is flawed for two primary reasons. First, the majority ignores fundamental principles of statutory construction. A circuit court's authority to place an individual on probation is derived from West Virginia Code § 62-12-11. In that regard, there is an absence of any express language in the statute that the increased maximum probationary term of seven years is to be applied retroactively. Under basic principles of statutory construction there is a presumption that statutes do not apply retroactively unless such application is expressly written into the statute. Syl. Pt. 1, Myers v. Morgantown Health Care Corp. , 189 W. Va. 647, 434 S.E.2d 7 (1993) ("A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute."). The 2017 version of West Virginia Code § 62-12-11 contains neither express language that it is to operate retroactively, nor any implied wording which could warrant a legal determination that the new language was intended to be retroactively applied. Consequently, it is undeniable that the Legislature did not intend for the 2017 statute to have any retroactive application. See Syl. Pt. 3, in part, State v. Cookman , 240 W. Va. 527, 813 S.E.2d 769 (2018) ("Pursuant to West Virginia Code § 62-12-11 (2014), a sentencing court exceeds its authority by imposing a sentence of probation beyond the statutory limitation, rendering such sentence void."); State v. Reel , 152 W. Va. 646, 654, 165 S.E.2d 813, 818 (1969) ("It necessarily follows that after the expiration of five years from the date that the defendant was placed on temporary probation by the circuit court that court was without power or authority to revoke such probation or to sentence the defendant for the criminal offense of which he had been convicted.").
Second, and of critical constitutional significance, the majority dismisses this Court's long-recognized precedent governing the application of ex post facto principles in a manner which ensures the protection of an individual's rights. This Court has repeatedly stated:
" ‘[i]t is settled, by decisions of this Court so well known that their citation may be dispensed with, 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 crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto .’ "
State v. Deel , 237 W.Va. 600, 605-06, 788 S.E.2d 741, 746-47 (2016) (quoting Collins v. Youngblood , 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ). This Court also held in syllabus point two of Deel 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. Bordenkirch er, 164 W.Va. 292, 262 S.E.2d 885 (1980)." 237 W. Va. at 601, 788 S.E.2d at 742, Syl. Pt.2; see Syllabus, State v. Short , 177 W. Va. 1, 350 S.E.2d 1 (1986) ("A law which changes the punishment for a crime and inflicts a greater punishment than the law annexed to the crime when it was committed is an ex post facto law.").
The majority avoids the obvious ex post facto prohibitions in this case by disregarding the statute, this Court's precedent, and the state and federal constitutions, concluding that no ex post facto implications exist because petitioner's probation violation occurred under the 2017 version of West Virginia Code § 62-12-11. This conclusion is legally insupportable under our established law, a problem the majority finesses by focusing on cases from four other jurisdictions: California, Colorado, North Dakota and South Dakota, instead. Specifically, the majority cites State v. Monson , 518 N.W.2d 171 (N.D. 1994), and John L. v. Superior Court , 33 Cal.4th 158, 14 Cal.Rptr.3d 261, 91 P.3d 205 (2004), to support its holding that in probation violation cases the punishment is determined not by the law in existence at the time of conviction and imposition of the probationary sentence, but rather by the law that exists at the time the probation violation occurred. This holding, which completely avoids and circumvents this Court's precedent, opens a Pandora's Box that not only harms petitioner, but will invariably lead to a trampling of the constitutional rights of other defendants.
The majority's decision also ignores the United States Supreme Court's decision in Johnson v. United States , 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), a case which postdates three of the four cases upon which the majority relies. In Johnson , a case involving revocation of supervised release, the Supreme Court stated unequivocally that "[p]ostrevocation penalties relate to the original offense[,]" and recognized that most courts treat postrevocation sanctions in this manner to avoid a host of potential constitutional difficulties. Id . at 701, 120 S.Ct. 1795. The Supreme Court also stated that "[s]ince postrevocation penalties relate to the original offense, to sentence ... [defendant] to a further ... [punishment] would be to apply this section retroactively" and would "raise the remaining ex post facto question [of] whether that application makes him worse off." Id .; see Hunt v. State, 487 P.3d 833, at *1 (Nev. 2021) (stating that "probation revocation proceedings are part of the penalty for the underlying crime. See Johnson v. United States , 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (‘[P]ostrevocation penalties relate to the original offense.’)[;]" State v. F.W. , 443 N.J.Super. 476, 129 A.3d 359 (2016) ("For purposes of ex post facto analysis of penalties for violating the terms of post-release supervision, ‘postrevocation sanctions’ are treated ‘as part of the penalty for the initial offense.’ ") (citation to Johnson omitted); Commonwealth v. Cory , 454 Mass. 559, 911 N.E.2d 187, 192 (2009) (relying on Johnson in recognizing that "[p]enalties for violation of the terms of supervised release, including the penalty of additional supervised release, are attributed to the original conviction rather than to the violation."); see generally Neil P. Cohen, Law of Probation & Parole § 18:9 (2d ed. Sept. 2021 Update) ("As 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. Subsequent changes in statutes that adversely affect a parolee's or probationer's rights can be applied prospectively only. Otherwise, subsequent adverse changes in the law would constitute an unlawful ex post facto law.") (footnotes omitted).
Interestingly, the majority also includes the first sentence of this parenthetical quote from this legal treatise in its decision but omits the remainder of the quote that is set forth supra .
Following Johnson , in Witchard v. State , 68 So.3d 407 (Fla. Dist. Ct. App. 2011), a defendant/probationer was originally sentenced to serve a total of twenty years of sex offender probation after pleading guilty to multiple charges of lewd and lascivious battery for engaging in sexual activity with a person twelve years old or older but less than sixteen years old. Id . at 408. The defendant/probationer violated his probation. He agreed to plead guilty to the violation, but reserved the right to challenge whether the provision of the Jessica Lundsford Act ("the Act") requiring electronic monitoring after a violation of sex offender probation applied to him, because his crimes were committed before the effective date of the Act. Id . Defendant/probationer argued that the retroactive application of the statutory provision requiring mandatory electronic monitoring under these circumstances violated the ex post facto clauses of the United States and Florida Constitutions. Id .
On appeal, the Witchard court agreed. The court, relying upon the Supreme Court's decision in Johnson , stated:
In Johnson v. United States , 529 U.S. 694, 120 S. Ct. 1795, 146 L.Ed.2d 727 (2000), the United States Supreme Court explained that when a probationer is sanctioned for violating the conditions of his or her probation, the penalties are attributed to the original conviction rather than the violation. Id . at 700-01, 120 S. Ct. 1795. As such, it would be an ex post facto violation to apply a law that increases the penalty for a violation of probation to a probationer who committed his or her crimes before the law became effective regardless of the date of the violation of probation .
68 So.3d at 409 n.2 (emphasis added).
The whole premise upon which the majority relies – that a probation violation is akin to a new crime that has occurred, so the current statute applies – flies in the face of the way in which probation has been viewed by this Court and by the United States Supreme Court. See Johnson , 529 U.S. at 701, 120 S.Ct. 1795. This Court has recognized that the imposition of a period of probation, which includes various terms and conditions in lieu of incarceration, is unquestionably part of the punishment for a crime set forth in a circuit court's sentencing decision. See Cookman , 240 W. Va. 527, 532, 813 S.E.2d 769, 774 (2018) ("While this Court acknowledges the general principle that sentencing decisions are properly within the realm of the trial court, an order which violates statutory restrictions is invalid.") (emphasis added); Short , 177 W. Va. at 2, 350 S.E.2d at 2 (noting that an order of restitution imposed as part of probation undeniably constitutes a "punishment," and is subject to ex post facto protection).
In dealing with this petition to revoke petitioner's probation the circuit court found a violation of the terms and conditions of probation set forth in the original August 20, 2015, sentencing order, and in its order extending probation directed that all other terms and conditions originally imposed on August 20, 2015, would remain in effect. Clearly the circuit court viewed the violation of probation as inextricably linked to the 2015 order imposing the sentence of probation – not new "crimes" as the majority opinion suggests. As the State argued in each brief,
While petitioner's conduct was violative of the terms of her probation, it was not criminal.
[f]ollowing her violation, Petitioner was not placed on a "new" probationary period; she was still serving the term of probation imposed upon her under the terms of the statute in effect at the time of her sentencing in 2015. Because a circuit court "exceeds its authority by imposing a sentence of probation beyond the statutory limitation, rendering such sentence void," Syl. Pt. 3, in part, Cookman , 240 W. Va. 527,813 S.E.2d 769, application of a version of the probationary statute that was not in effect when Petitioner was placed on probation is void.
Finally, the majority's position that "probation is a matter of grace" and not a punishment for a crime is pure poppycock! A critical examination of the cases in which this concept arose, State ex rel. Strickland v. Melton , 152 W. Va. 500, 165 S.E.2d 90 (1968), and State ex rel. Winter v. MacQueen , 161 W. Va. 30, 239 S.E.2d 660 (1977), readily dispels the idea that probation is not a punishment. First, the syllabus point in Strickland fails to track any language in the authorities upon which it relies. In the body of Strickland , the Court states,
[p]robation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime. See Escoe v. Zerbst , 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 ; Burns v. United States , 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 [(1932)] ; Hamrick v. Boles, D.C. , 231 F.Supp. 507 [(N.D.W. Va. 1964)].
152 W. Va. at 505, 165 S.E.2d at 94. It is this language that is then elevated to a syllabus point. Id . at 500, 165 S.E.2d at 91, Syl. Pt. 2. However, none of the cases cited for the legal principle enunciated in that syllabus point actually support the concept that "[p]robation is not a sentence for crime." Instead, in Escoe , the United States Supreme Court stated that "[p]robation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose." 295 U.S. at 492-93, 55 S.Ct. 818 ; see Burns , 287 U.S. at 220, 53 S.Ct. 154 ("Probation is thus conferred as a privilege, and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment , and cannot insist on terms or strike a bargain.") (emphasis added); Hamrick , 231 F.Supp. at 509 (stating that "probation or suspension of sentence comes as an act of grace to one convicted of a crime. The convicted person has already had his day in court, and probation is simply one of the devices of an enlightened system of penology which has for its purpose the reclamation and rehabilitation of the criminal.") (emphasis added).
Second, in Winter the Court did not use the holding from Melton , choosing to write a new syllabus point that provided in pertinent part that "[p]robation being a matter of grace ...." 161 W. Va. at 30, 239 S.E.2d at 660, Syl. Pt. 3, in part. In creating this new holding, the Court acknowledged that there was no absolute right to probation but that the decision to grant probation was "a matter of grace." Id . This case undeniably stands for the concept that the act of granting probation is within a circuit court's sound discretion – not that probation is not a punishment!
Finally, this Court recently acknowledged that probation is a form of punishment in State v. Varlas , 243 W. Va. 447, 844 S.E.2d 688 (2020), construing Melton as follows:
"[p]robation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime." That holding clearly stands for the proposition that a defendant is not entitled to probation as a matter of law, but that the court may, in its discretion, grant probation to those it finds deserving of a more lenient punishment than incarceration.
Id . at 455, 844 S.E.2d at 696 (emphasis added). The majority dispenses with any reliance on Varlas , finding that it has no application to this case because Varlas was limited to "an Eden analysis." However, the principle set forth above is not one that can simply be cast aside because it does not support a desired result. See State v. Hedrick , 236 W. Va. 217, 224 n.9, 778 S.E.2d 666, 673 n.9 (2015) ("We observed, in Louk [v. Haynes] , that the liberty of an accused ‘is no less "affected" because probation is considered an act of grace. Due process cannot be denied a probationer by such reasoning. Every condition of probation constitutes a restriction of liberty and violation of any condition may result in imprisonment .’ (citations omitted) 159 W.Va. [482] at 492-93, 223 S.E.2d [780] at 787 [(1976)].") (emphasis added).
In upholding the circuit court's imposition of a punishment in the form of a probationary term that exceeds applicable statutory maximum, the majority embraces new law that unequivocally violates the language of West Virginia Code § 62-12-11, this Court's precedent, and the ex post facto clauses of both the West Virginia and United States Constitutions. Unfortunately, the majority's holding invites speculation that this decision may have been based on achieving a desired result, rather than on the analysis of constitutional provisions, applicable statutes and pertinent decisions of this Court, the United States Supreme Court and courts of our sister states.
For all of the foregoing reasons, I respectfully dissent.
Id.
As discussed infra , this Court has consistently recognized that probation is a matter of grace, not a penalty or a punishment. We also note that this Arizona case was decided in 1979 and that the cases from California, Colorado, North Dakota, and South Dakota reaching the opposite conclusion all occurred after 1979.