### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED Plaintiff Below, Respondent 

### May 11, 2018 vs) No. 17-0737 (Jefferson County CC-19-2008-F-62) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Steven Kim Hatfield, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Steven Kim Hatfield, by counsel David P. Skillman, appeals the order of the Circuit Court of Jefferson County, entered on June 25, 2017, revoking his te rm of supervised release. Respondent State of West Virginia appears by counsel Shannon Frederick Kiser.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affirming the orde r of the circuit cour t is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was convicted in 2008 of sexual abus e by a parent, guardian, or custodian in violation of West Virginia Code § 61-8D-5. He wa s sentenced to serve ten to twenty years in the state penitentiary, followed by a fi fty-year period of supervised release. Petitioner served the requisite term of incarceration a nd he began his supervised releas e in October of 2016. The State filed a motion to revoke his supe rvised release in Ja nuary of 2017, asserting that petitioner (1) failed to update his information on the sex offe nder registry, (2) failed to provide his exact address to his supervised release officer, (3) fr equented a business expre ssly prohibited to him, (4) opened social media accounts without notifying his supervised release officer, and (5) had contact with minor children, all in violation of the terms of his supervised re lease agreement. The circuit court conducted a revocation hearing in June of 2017, subsequent to which it revoked petitioner’s supervised re lease and sentenced him to serve five years in the state penitentiary on the basis that petitioner committed the first, third, and fourth of the asserted violations.

On appeal, petitioner asserts f our assignments of error: (1) the circuit court erred in not allowing petitioner to testify at the revocation hearing, thus violating petitioner’s due process rights; (2) the circuit court failed to allow “certain facts” to be “developed fully” when petitioner “was not afforded an opportunity to testify”; (3) the circuit cour t applied the incorrect burden of proof in revoking petitioner’s supe rvised release; and (4) the ci rcuit court erred in deeming certain allegations admitted, despite its having inst ructed the State to present evidence in support

1of its petition to revoke supervised release. 1 We explained in State v. Hedrick , 236 W.Va. 217, 223, 778 S.E.2d 666, 672 (2015), that in cases such as this, where the condi tions at issue on appeal are derivative of the orig inal sentencing order, we review “‘“under a deferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syllabus Point 1, in part, State v. Lucas , 201 W.Va. 271, 496 S.E.2d 221 (1997).’ Accord syl. pt. 1, State

v. James , 227 W.Va. 407, 710 S.E.2d 98 (2011).” We also explained that “‘[t ]his Court reviews

the circuit court’s final order and ultimate disposition under an a buse of discretion standard. We review challenges to findings of fact under a cl early erroneous standard; conclusions of law are

reviewed de novo .’ Accord syl. pt. 1, State v. Messer , 223 W.Va. 197, 672 S.E.2d 333 (2008); syl. pt. 1, State v. Davis , 199 W.Va. 84, 483 S.E.2d 84 (1996).” We further note that we consider petitioner’s assignments of error in relation to the statutory directive, set forth in West Virginia Code § 62–12–26(g)(3), which author izes the circuit court to

[r]evoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, pursuant to the West Virginia Rules of Criminal Procedure applicable to revo cation of probation, finds by clear and convincing evidence that the defendant viol ated a condition of supervised release, except that a defendant whose term is re voked under this subdi vision may not be required to serve more than the pe riod of supervised release[.]

We begin with petitioner’s fi rst and second assignments of error, both of which charge that the circuit court did not allow petitione r to testify on his own behalf. The whole of petitioner’s argument in support of these assignme nts of error is based on an exchange that transpired at the conc lusion of the State’s presentation of evidence:

[The court]: Does the defense wish to offer any testimony or evidence today?

[Defense counsel to petitioner]: Can you hear okay?

1 The appendix record on appeal submitted by petitioner is nine pages. The supervised released agreement controlling pe titioner’s release is not contained in the appendix record on appeal. Three of the pages in that record ar e the circuit court’s Or der Revoking Defendant’s Supervised Release, leaving six pages of fragmented transcript from which petitioner would have us resolve his multiple asserted errors. Petitioner’s citation to these pages is minimal, and none of the cited pages indicate that petitioner challenged the circu it court’s rulings below. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure re quires that arguments “contain appropriate and specific citations to the record on appeal, including citations that pinpoint when and how the issues in the assignments of error were presented to the lower tribunal. The Court may disregard errors that are not adequately s upported by specific references to the record on appeal.” Nevertheless, the State has supplemen ted the record with the revocation hearing transcript, and we review petitioner’s assignments of error for any error pl ain in that proceeding.

2[Petitioner]: Yes, sir.

[Defense counsel to petitioner]: You can?

[Petitioner]: Yes, sir.

[Defense counsel to petitioner]: Okay.

[Petitioner]: But I . . . .

[Defense counsel]: No, Your Honor.

Petitioner argues that the “But I” expressed in this dialogue was a “clear indication . . . that [he] may have been seeking an opportunity to testify. . . .” He suggests that the circuit court’s “failure . . . to fully ascertain [his] desire” resulted in the denial of his due process rights. We decline, however, to demand clairvoyance ofthe circuit court based on a meaningless twoword phrase uttered in the midst of an inquiry a bout petitioner’s ability to hear the proceedings. In the absence of the express disapproval of the defendant on the record during the proceedings,

a circuit court does not e rr in relying on the representations of counsel.

We turn to petitioner’s third assignment of e rror, wherein he argues that the circuit court employed the wrong burden of proof to the revocation proceeding, evidenced by the court’s explanation of the findings it made “by a clea r preponderance of the evidence.” The burden of proof for revocation is, according to our st atute, by “clear and convincing evidence.” See W.Va. Code § 62–12–26(g)(3). However, “the burden of pr oof has impact only if the evidence is in equipoise.” Brown v. Gobble , 196 W.Va. 559, 563, 474 S.E.2d 489, 493 (1996). We are faced with no such dilemma. The State presented cl ear and convincing and, significantly, unrebutted, evidence. As discussed below, petitioner admitted to three of the five charged violations. In addition, petitioner’s supervising officer testified that petitioner did not update his registry information, that she found petitioner at a bus iness that was expressly forbidden by his supervised release agreement, and that petitioner opened social media accounts without first seeking permission of his superv ising officer. The misidentifica tion of the burden of proof set forth in the court’s order, if error, was harmless, because the State presented clear and convincing evidence that petitioner violated these three terms of his agreement.

Petitioner’s final assignment of error stat es that the circuit court deemed certain allegations admitted, though the court required the State to put on evidence regarding those same allegations. At the outset of the revocation hear ing, petitioner’s counsel informed the court:

All right. And we’ve got a number of allegations here, and I think a couple of them are easily dealt with right off th e bat, that he was charged in Berkeley County, has admitted to an offense over th ere, a misdemeanor, and that would be paragraph, subparagraph A, which is that he was charged, and that’s true; and the

fact that he was convicted of a misdemeanor of failure to regist er or update rather.

And then too I think he admitted C, which was not to associate with individuals, that is at a ce rtain used auto place, and he admitted that he did that;

3and then D, which he opened the [F]acebook, [S]napchat and [T]witter accounts without the consent of the probation officer . That was the subject of the charges brought in subparagraph A, so they’re kind of related; and I think we would be comfortable with admitting A, C and D, but not the other violations.

Later in the proceeding, after ascertaining—with respect to each vi olation—that petitioner

understood that he could contest the State’s assertions and c ould testify on his own behalf, petitioner’s counsel asked petitioner, “With that understanding are you in agreement with admitting to subparagraphs A, C, and D, that you we re indeed in violation of those paragraphs as

drafted?” Petitioner affirmed that he was. Neve rtheless, the court proceeded to hear evidence “for clarity’s sake.” In revoking petitioner’s supervised release, the court found that petitioner “understands his rights and the allegations agai nst him, and that his admissions were made knowingly and voluntarily and upon the advice of counsel.” The court further explained, “Additionally the court took evid ence and found by a clear pre ponderance of the evidence that the State had met its burden” with respect to the three asserted violations. Though petitioner claims error in the circuit court’s having accepte d petitioner’s admissions after hearing evidence, petitioner argues neither that his admissions were not willing and voluntary nor th at the circuit court’s finding was not based on the substantia l evidence of record. We find no error.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: May 11, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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