STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

State of West Virginia, FILED 

Plaintiff Below, Respondent January 8, 2018 

vs) No. 17-0171 (Wood County 16-F-78) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Zachary Wamsley, 

Defendant Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Zachary Wamsley, by counsel Eric K. Powell, appeals the Circuit Court of 

Wood County’s January 31, 2017, order revoking his probation. Respondent State of West 

Virginia, by counsel Gordon L. Mowen II, filed a response. On appeal, petitioner argues that the 

circuit court erred in failing to grant his motion for youthful offender treatment. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On April 5, 2016, petitioner pled guilty to one count of grand larceny. On June 14, 2016, 

the circuit court sentenced petitioner to not less than one year nor more than ten years of 

incarceration. The circuit court suspended petitioner’s sentence, however, and placed him on 

three years of probation. 

On December 14, 2016, petitioner’s probation officer filed a petition to revoke 

petitioner’s probation. Petitioner’s probation officer alleged that petitioner used morphine 

without a valid prescription, admitted to smoking K-21

, was convicted of the offense of driving 

with a suspended or revoked license, failed to appear for a random drug screen, and committed 

the offense of delivery of a controlled substance. All of the violations were alleged to have 

occurred within the first four months following petitioner’s placement on probation. It is 

undisputed that all of the alleged transgressions were in violation of the terms and conditions of 

petitioner’s probation. 

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K-2 is synthetic cannabis. Nicole Piazza, What is K2 and Why Is It Dangerous?, The 

National Center on Addiction and Substance Abuse (Oct. 6, 2015), 

https://www.centeronaddiction.org/the-buzz-blog/what-k2-and-why-it-dangerous. 

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The circuit court held a hearing on the petition to revoke probation. Petitioner admitted to 

all of the violations alleged in the petition, except for the delivery of a controlled substance.2 

Petitioner also requested either imprisonment or youthful offender treatment. By order entered 

on January 31, 2017, the circuit court revoked petitioner’s probation, denied his request for 

alternative sentencing, and imposed his original sentence of not less than one year nor more than 

ten years of incarceration. It is from this order that petitioner appeals. 

On appeal, petitioner contends that the circuit court erred in failing to grant his motion for 

youthful offender treatment. Petitioner argues that his underlying crime was nonviolent and his 

first felony. Petitioner highlights that he admitted to and accepted responsibility for his actions. 

Petitioner also claims to have been in substantial compliance with the terms of his probation and 

that his “relapses” occurred within weeks of his sentencing hearing. Thus, petitioner maintains 

that revoking his probation and imposing his prison sentence “was too drastic and unnecessary of 

a decision[,]” and that youthful offender treatment would have been a more appropriate outcome. 

We have previously articulated our standard of review as follows: 

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. 

Syl. Pt. 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997). 

We find that the circuit court did not abuse its discretion in denying petitioner’s motion 

for youthful offender treatment. The Youthful Offenders Act, West Virginia Code § 25-4-6, 

provides that 

[t]he circuit court may suspend the imposition of sentence of any young adult, as 

defined in this section, convicted of or pleading guilty to a felony offense, other 

than an offense punishable by life imprisonment, including, but not limited to, 

felony violations of the provisions of chapter seventeen-c of this code, who had 

attained his or her eighteenth birthday but had not reached his or her twentyfourth birthday at the time the offense was committed for which the offender is 

being sentenced and commit the young adult to the custody of the West Virginia 

Commissioner of Corrections to be assigned to a center[.] 

The language of the statute vests discretionary, not mandatory, authority in the circuit court to 

impose youthful offender treatment. State v. Shaw, 208 W.Va. 426, 430, 541 S.E.2d 21, 25 

(2000) (“Just as a trial court’s decision to grant or deny probation is subject to the discretion of 

2

That particular alleged violation was dismissed from the petition, but criminal charges 

arising from this violation remained pending. 

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the sentencing tribunal, so too is the decision whether to sentence an individual pursuant to the 

Youthful Offenders Act.”). Petitioner admitted to four violations of the terms and conditions of 

his probation, all of which occurred in a relatively short time after being placed on probation. 

Thus, contrary to petitioner’s assertion, he was not in “substantial compliance” with the terms 

and conditions of his probation, and he failed to demonstrate amenability to treatment other than 

incarceration. Therefore, the circuit court did not abuse its discretion in denying petitioner’s 

motion for youthful offender treatment. 

For the foregoing reasons, we affirm the circuit court’s January 31, 2017, order revoking 

petitioner’s probation. 

Affirmed. 

ISSUED: January 8, 2018 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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