### FILED Nov ember

5 , 2019

release d at

3:00 p. m. EDYTHE NA SH GAISER, CLERK SUPR EM E COURT OF APPEALS OF W EST VI RGI NI A STATE OF WEST VIRG INIA SUP REME COURT OF AP P EALS

STATE OF WEST VIRG INIA ex r el. JAMES WILLI AM HOWELL, JR., P etitioner , vs) No. 19-0065 (R andol ph Cou nty Nos. 16-F -104, 16-F -125)

THE H ONORABLE DAVID H. WILMOTH , JUDG E OF THE CIRCUIT COURT OF RANDOLP H COUNTY, and MICHAEL W. P ARK ER, RANDOLP H COUNTY P ROSECUTING ATTORNEY, Respondents

MEMORAN DUM D ECISIO N

Petitioner J ames Wil liam Howell, J r., by counsel Phill ip S. I sner an d David C. Fue llhart, petitions this Court to invoke its orig inal jurisdiction pursuant to Rule 16 of the West Virg inia Rules of Appellate Procedur e. Petitioner seeks a writ of prohibition, or alternatively
, a writ of mandamus ag ainst responde nts, the Honora ble David H. Wil moth, J udg e of the Cir cu i t Court of Randolph County
, and Michae l W. Parker
, Randolph County Prosecuting Attorney (“the State”)
, challeng ing 1 the cir c u it c o urt’s denial of petitioner’s motion to dismiss the probation violation proce eding broug ht ag ainst him.

Upon thoroug h consideration of the petition for writ of prohibition, the State’s response , the brief of the I nterve nor, the West Virg inia Division of Correc tions and Rehabilitation (“D CR”), the 2 parties’ oral a

rg uments, and the a

ppendix record, we conclude that the circ uit court neither la cked jurisdiction nor exceede d its jurisdiction in enter ing the order at issue and, there fore
, extraordinary relief should not issue as the rule to show cause in this matter was improvidently g rante d. Be cause
we discern no substantial que stion of law in connec tion with the petition, a memorandum decision denying the reque sted writ is the appr opriate disposition pursuant to Rule 21 of the West Virg inia Rules of Appellate Procedur e.

The State is re prese nted by Mr. Parke r. 1

The DCR
, by counsel Briana J . Marino, wa s invited by the C ourt to intervene in this case 2 when the C o u rt i ssued the rule to show cause

. We appre ciate the DCR’s participa tion and have considere d the position it advanc ed.

1I. F acts

On Aug ust 27, 2015, petitioner sold methamphetamine to a confide ntial informant and was later convicted of delivery of a controlled substance. There afte r, on Marc h 30, 2016, petitioner was 3 i n v o l v ed in stealing persona l proper ty from others, which was valued at $5,100, and was later convicted of conspirac y

. On M ar ch 20, 2017, petitioner was sentenc ed in both afor ementioned 4

case s as follows:

T h e co urt ORDERED that the Def endant shall be and is here b y sentenc ed to not less than one (1) nor more than five (5) y ear s on the offe nse of Deliver

y of a Controlled Substance

. . . . The Court ORDERED that the Def

endant shall be and is here by sentenc ed to not less than one (1) nor more than (5) y ear s in the state penitentiary for the offe nse of Cons p i rac y

. . . . The Court ORDERED that said

s en t ence s shall run consec utively to eac h other. The Court fur t h er ORDERED that the exe cution of the second sentenc e shall be and is hereby suspended and the Defendant shall be placed on five ( 5) years of supervised probation with the Randolph County Probation Office upon release from the first s entenc e

. . . . (Emphasis adde d).

Subsequently
, on Marc h 9, 2018, petitioner was rele ased from in ca rc er at i on in the state penitentiary on his first sentenc e and place d on parole

. Petitioner was g rante d approva l to serve his parole in the State of Maryland. Upon his r elea se from his first sentence , petitioner re ported to the Randolph County Probation Offic e and met with his probation office r. At that time, petitioner was advised of the terms and conditions of his supervised probation imposed on his second sentenc e, all

as set forth in a document entitled “Probation Supervision Terms and Re gu l at i o n s ” in which petitioner initialed eac h of the terms an d conditions of his supervised probation and signe d eac h pag e. Petitioner’s counsel was provided a copy of the document. The document also indicates that petitioner’s term of supervised probation would expire on April 9, 2023. As with petitioner’s parole
, supervision of petitioner’s probation was also transfe rre d to Mary land following this initial meeting

.
As set forth in a probation violation repor t dated Septem b er 1 2
, 2 0 1 8, on J une 8, 2018, petitioner’s probation office r rec eived an anony mous tip that petitio n er wa s “ac tively hara ssing” them, was “obser

ved hang ing out w ith known drug deale rs” and “wa s not permitted in town.” The probation office r contac ted the State of Mary land and was told that petitioner had been g rante d permission to return to Randolph County to visit his g randmother
, who was terminally ill, and should have returne d to Mary

land prior to J une 8. Then, on J une 15, 2018, petitioner’s probation offic er

See W. Va. Code § 60A-4- 401(a) (ii). 3

See W. Va. Code § 61-10-31. 4

2was c ontacted by local law e nforc ement and informed that petitioner “wa s involved in an incident that is under investigation whe rein

. . . [petit ioner] w as at his f ather ’s home rec klessly

discharg ing a firear m.” L ocal law enfor ceme nt repor ted t hat petit ioner fled from sheriff’s deputies when they responde d to the scene and verba lly told petitioner to stop. Ag ain on J uly 20, 2018, petitioner was involved in a high speed pursuit in Randolph County

. Petitioner abandone d the car and fled on foot. After this incident, the sheriff ’s deputies obtained a war rant for petitioner for flee ing an office r with

rec kless indiffer ence

. On September 7, 2018, petitioner was taken into custody afte r actively eluding authorities for a lmost t hree months. Petitioner told his probation officer that he had be en abusing methamphetamine a

nd other drug s while he wa s avoiding probation super vision.

A preliminary hear ing on the alleg ed supervised probation violation s wa s s cheduled for October 15, 2018. At this hearing , petitioner, for the first time, obje cted to the fac t that he was on probation and or ally

moved to dismiss the probation violation proc eeding
, arguing that he had not been rele ased from his first sentenc e and, there fore
, his sentenc e of probation for conspirac y on his second sentenc e had not y et started. Petitioner then waived his preliminary hear ing and the circ uit court g rante d him time to file a motion and fully brief the issue raised. The circ uit court set the adjudication hea

ringfor Nove mber 26, 2018.

Pe ti ti o n e r f

il e d a “Motion to Dismiss Probation Violation Procee dings” befor e the Novembe r hear ing. In his motion, which cited no lega l au t h ority
, petitioner’s counsel argued that his probationar

y term had not y et beg

un, beca use at the time the State soug ht to revoke his probation, he wa s still on parole and ther efor e had not be en “r elea sed fr om his first sentence [.] ”

At the November 26, 2018, adjudication hear ing on petitioner’s alleg ed violations of the terms o f h is s u

pervised probation, petitioner’s counsel argued that petitioner simply could not violate his probation beca

use it had no t s t ar ted. He further maintained that the circ uit court was without jurisdiction beca

use his client was not on probation. He asked that the proce eding be dismiss ed and “the parole board can deal with it in whateve r way they see appropr iate[

. ] ” T h e circuit court, by 5

o rder enter ed Dec ember 12, 2018, denied petitioner’s motion to dismiss the probation vi o l at i o n proce eding
, finding that “it was the Court’s intention to place the Def endant on probation upon his rele ase f rom incar cer ation[] ” fr om petitioner’s first sente nce. 6

Acc ording to petitioner in his petition, he also had a parole violation proce eding pending at 5 the time the instant issue was raised befor e the circ uit c ourt. Petitioner indicates that he stipulated to violating his parole and was incar cer ated until J une of 2019. There is nothing in the rec ord to indicate whether petitioner has been rele ased, althoug h the DCR repr esente d to the Court during oral argument that petitioner wa s fully discharg ed fr om his first sentence on September 12, 2019.

The circuit court stay ed the pr ocee dings in orde r to allow petitioner to file a petition for a 6 writ of prohibition with this C ourt.

3Petitioner filed the instant petition for writ of prohibition seeking to prohibit the circ uit court

from continuing wit h the probat i o n v iolation proce eding beca use t he petiti oner had not y et begun his probationar

y period, or, in the alternative, requiring the circ uit court to m o d ify the sentenc ing order to show that petitioner is actua lly serving concur

rent sente nces.

II. Stand ard of Review

Petitioner seeks a writ of prohibiti o n t o p revent his probation violation proce eding from

occur ring

. I t is well-e stablished law that “the rig ht to prohibition must be clea rly shown befor e a petitioner is entitled to this extraordinary reme dy .” Norfolk S. Ry. Co. v. Maynard
, 190 W.Va. 113, 120, 437 S.E.2d 277, 284 (1993). Fur ther, “[t] he writ of prohibition will issue only in c lear case s, wher e the inferior tribunal is proce eding without, or in excess of, jurisdiction.” Sy llabus, State ex rel. Vineyard v . O’Brien , 100 W. Va. 163, 130 S.E. 111 (1925); see Sy l. pt. 2, State ex rel. Peache r v. Sencindive r , 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not issue to preve nt

a simple abuse of discretion by a trial court. I t will onl y issue wher e the trial court has no jurisdiction or having such jurisdiction exceeds its leg itimate power s. W. Va. Code 53-1-1.” ). We have a lso set forth the following standard f or asc erta ining whe ther to issue a w rit of prohibition:

I n deter mining whether to enter tain and issue the writ of prohibition for case s not involving an absenc e of jurisdiction but only wher e it is claimed that the lower tribunal exceede d its leg iti m ate power s, this Court will examine five fac tors: (1 ) whether the party seeking the writ has no other adequate means, such as direc t a ppeal, to obtain the desired relief ; (2) whether the petitioner will be damag ed or pre judiced in a wa

y that is not corre ctable on appea l; (3) whethe r the lower tribunal’s order is clea rly err oneous as a matter of law; (4) whether the lower tribunal’s order is an oft repe ated err or or manifests persisten t disreg ard for either proce dural or substantive law; and (5) whe t h er t he lower tribunal’s order raises new and important problems or issues of law of first impression. These fac tors

are g ener al g uidelines t h at serve as a useful starting point for deter mining whether a discretionar y writ of prohibition should issue. Although all five fac tors need not be satisfied, it is clea r that the third fac tor, the exis tence of clea r err or as a matter of law, should be g iven substantial weig ht.

Sy l. Pt. 4, State ex rel. Hoove r v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996). Wit h the fore g oing fac tors in mind, we undertake an e x amination of petitioner’ s argument.

III. Discussion

Petitioner’s sole basis for seeking extraordinary relief from thi s Court is his cl aim that the circ u i t co u rt h ad no authority to revoke his probation on the s econd of two consec utive sentenc es when he had y et to complete the first sentenc e of those sentenc es. He arg u es , a g a i n with no

4supporting authority
, that he was not rele ased from his f irst se ntence until he either discharg ed the entirety of the sentenc e throug h incar cer ation or alternatively was rele ased from parole

. Acc ording to petitioner, beca

use his probationar

y term, under the circ uit court’s sentenc ing order
, did not beg in until he discharg ed his first sentenc e or was release d from parole on his first sentence —neither of which had occur

red in this case when the State soug ht to revoke his probation—the circ uit court was without the authority

to revoke his probation, beca use he ha d y et to beg in his probation term.

I n contra st, responde nt argues that the writ should be dismiss ed beca use petitioner had other adequate means to pursue relief throug h a dire ct appe al. Respondent conte nds that petitioner’s

argument that his period of probation had y et to beg in is thi nly [] veiled fiction based upon wording in an order t hat could have admittedly b e e n c le a

r e r

. H oweve r, the defe ndant was expressly awa re that he wa s place d on supervised pr obation and had a ctual notice of the terms and conditions of that probation. The purported issues with the lang uag e of the sentenc ing order we re o n ly raised afte r the defe ndant committed multi p le violations of the terms of that probation.

L astly
, the intervenor DCR urg es the Court to define the terms “re lease ” from custody and 7 “discha rg e” from custody

and advoc ates that the Court a dopt the plain, ordinary meaning of ea ch 8 of those ter

ms.
Apply ing the Hoove r fac tors to the instant case , we are troubled that petitioner fails to meet the first fac tor, beca

use he ce rt ai nly has another adequate means to obtain relief —a direct appea l. Hoove r , 1 9 9 W

. Va

. at 15, 483 S.E.2d at 15, Sy l. Pt. 4, in part. Whil e the circ uit court stay ed its order in this case to allow petitioner the opportunity to pursue extraordinary relief in this Court, we
are mindful that petitioner i s b ef o re this Court on a purely interlocutory order as all that has transpire d at this juncture is that petitioner’s motion to dis miss the pr obation violation pr ocee ding has been denied. Petitioner’s probation has not been revoke d. See Sta t e v. Hamby
, No. 11-0942, 2012 WL 3079152, at *2 (W. V a. April 16, 2012) (memora ndum de cision)(re solving simil ar fac ts and the same issue as prese nted in the instant case on direc t appea l afte r petitioner’s probation was

Acc ording to the DCR, in a circ uit court’s sentenc ing order
, “re lease ” would descr ibe “the 7 d ay , m o nth, and y ear of the individual’s exit from phy sical incar cer ation within a prison or jail operated by

the State of West Virg inia.”

The DCR contends that the term “discha rg e” wo u ld be used “to descr ibe the complete 8 exti ng uishment of the executive branc h’s jurisdiction over the person in ever y form—inca

rce ration and parole —by virtue of completion of his/her sentence. ” Thus, as the DCR maintains, it will “conside r an inmate as having ‘dischar g ed’ his/her sentenc e when the inmate has serve d all require d periods of incar cer ation and parole such that he/she is no longe r subject to jur isdiction of DCR f or the cr ime(s) c ommitt ed in the assoc iated orde r.”

5revoke d). As we have repe atedly stated, “[o] ur law plainly say s that a writ of prohibition may not 9 be used as a subs t i t u t e for appea l.” State ex rel. Shelton v. Burnside
, 212 W. Va. 514, 518, 575 S.E.2d 124, 128 (2002); see also State ex rel. Maynard v. Bronson , 167 W. Va. 35, 41, 277 S.E.2d 718, 722 (1981) (“[P] rohibition cannot be substitut ed for a writ of error or appea l unless a writ of

err or or a ppeal would be an inade quate r emedy .”).

We also focus on the third Hoove r fac tor—“whe ther t h e l o we r tribunal’s order is clea rly

err oneous as a matter of law[.] ” 199 W. Va. at 15, 483 S.E.2d at 15, Sy l. Pt. 4, in part. I t is this fac tor that we have said should be given “substantial weig ht” in rea ching the decision on whether to issue a writ of prohibition. Id

. Succinctly stated, it is the absenc e of any authority showing that the circ uit court’s orde r wa s “cle arly err oneous as a matter of l aw” that is also fata l to petitioner’s

case

. As petitioner off

ers no law

to show that the circuit court’s order was erroneous, we are left with a sentenc ing order that was l aw fu l
, was car ried out as intended, and was understood by petitioner, who repor

ted to his probation office r immediately upon his rele ase from incar cer ation and signe d and ini tialed every term i n the “Probation Supervision Terms and Reg ulations” docum en t

. I t was only afte r he violated the terms of his supervised probation and was sear ching for a means of avoiding the conseque nces that he raised the novel argument that his supervised probation had never beg un.

Be cause petitioner provides us with no leg al basis to find any err or committed by the circ uit court in its de cision and beca use petitioner has other adequa te means of relief

, the Court f

inds tha t the rule to show cause was improvidently g rante d. See State ex rel. W

. Va. Secondary Sch. Activity Comm’n v. Hrko
, 213 W.Va. 219, 579 S.E.2d 560 (2003)( finding that rul e t o s how cause was improvidently g rante d and denying writ); see also State ex rel. Vanderra Res., LLC v. Humme l
, 242 W. Va. 35, 829 S.E.2d 35 (2019) (deter mining that rule to show cause was im providently g rante d and denying reque sts wr its); State ex rel. Nationw ide Mut. Ins. Co. v. Marks
, 223 W. Va

. 452, 676 S.E.2d 156 (2009) (deny

ing writ afte r finding rule to show cause was improvidently g rante d). The writ of prohibition is, therefor e, denie d.

IV. Conclusion

Ba sed upon the for eg oing, the petitioner’s wr it of prohibition is denied.

Writ denied.

Specifica lly , in Hamby , we r ejec ted the ar g ument that the circuit court lacke d jurisdiction 9

over petitioner for purposes of hear ing the probation revoc ation proce eding
, which resulted in petitioner’s probation being revoke d, and determ i n ed t h at there was nothing in the circ uit court’s sentenc ing order “or our prior holdings [ that] require s

. . . petitioner [ to] be fully discharg ed from the sentenc e in orde r to beg in serving her pr obation.” No.11- 0942, 2012 WL3079152, at *2.

6I SSUED: November 5, 2019

CONCURRED IN BY: Chief J ustice Elizabeth D. Walker J ustice Mar g are t L . Workman J ustice Tim Armstead J ustice Evans H . J enkins J ustice John A. Hutchison

7