IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2014 Term 

No. 13-0572 

STATE OF WEST VIRGINIA,
 

Plaintiff Below, Respondent
 

v.
 

BETH BENNETT,
 

Defendant Below, Petitioner
 

FILED
 

April 28, 2014
 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Appeal from the Circuit Court of Kanawha County
 

Honorable Louis H. Bloom, Judge
 

Criminal Action No. 13-M-2476
 

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED
 

Submitted: March 25, 2014 

Filed: April 28, 2014 

G. Wayne Van Bibber, Esq. Patrick Morrisey, Esq. 

Maggie K. Wall, Esq. Attorney General 

The Law Offices of G. Wayne Van Bibber Julie A. Warren, Esq. 

& Assoc., PLLC Assistant Attorney General 

Hurricane, West Virginia Charleston, West Virginia 

Attorneys for Petitioner Attorneys for Respondent 

JUSTICE LOUGHRY delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “Probation 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). 

2. Probation is a privilege bestowed upon a criminal defendant who has 

been convicted of a crime whereby the court suspends the imposition or execution of the 

statutorily-prescribed sentence and releases the convicted person subject to certain stated 

conditions. Consequently, before a court may impose a period of probation, the court must 

first suspend the imposition or execution of at least some portion of the sentence prescribed 

for the conviction. 

3. A person convicted of a first offense of truancy as set forth in West 

Virginia Code § 18-8-2 (2012) is subject to one of two alternative sentences: (1) a fine plus 

court costs; or (2) attendance at school with the child for the entire day for as long as the 

court deems appropriate. 

4. “‘Where in a criminal proceeding there is no error other than in the entry 

of the judgment imposing sentence, the judgment should be reversed and the case remanded 

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for proper judgment of sentence to be entered by the trial court.’ Syl. pt. 7, State v. Beacraft,
 

126 W.Va. 895, 30 S.E.2d 541 (1944), citing, Syl. pt. 5, State v. Fisher, 126 W.Va. 117, 27
 

S.E.2d 581 (1943).” Syl. Pt. 2, State v. Lawson, 165 W.Va. 119, 267 S.E.2d 438 (1980).
 

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LOUGHRY, Justice: 

The petitioner and defendant below, Beth Bennett, appeals an April 24, 2013, 

sentencing order imposing a fine of $50.00 plus court costs, placing her on probation for 

ninety days, and ordering her to perform five days of community service for her conviction 

by guilty plea to the offense of truancy pursuant to West Virginia Code § 18-8-2 (2012).1 In 

this appeal, the petitioner contends that the lower court erred by accepting her guilty plea and 

imposing a sentence not authorized by statute. 

Upon consideration of the parties’ briefs and oral argument, the submitted 

record and the pertinent authorities, this Court affirms the conviction but finds reversible 

error with regard to the sentence imposed and, accordingly, remands this case for further 

proceedings consistent with this opinion. 

1

West Virginia Code § 18-8-2 provides, in pertinent part: 

Any person who, after receiving due notice, shall fail to 

cause a child or children under eighteen years of age in that 

person’s legal or actual charge to attend school in violation of 

the provisions of this article or without just cause, shall be guilty 

of a misdemeanor[.] 

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I. Factual and Procedural Background 

The petitioner and her husband, Justin Bennett, are the parents of a child who 

was a first grader at an elementary school in Kanawha County, West Virginia, during the 

2012-2013 school year. On October 8, 2012, the Bennetts received a “Notice of Unexcused 

Absence From School” pursuant to West Virginia Code § 18-8-4 (2012)2 from Jennifer Lilly, 

the Assistant Attendance Director for Kanawha County Schools, stating that their child had 

five and a half days of unexcused absences from school. According to the petitioner, she 

contacted Ms. Lilly and sent her a letter and documentation to address the unexcused 

2

West Virginia Code § 18-8-4 provides, in pertinent part: 

(b) In the case of five total unexcused absences of a 

student during a school year, the attendance director or assistant 

shall: 

(1) Serve written notice to the parent, guardian or 

custodian of the student that the attendance of the student at 

school is required and that within ten days of receipt of the 

notice the parent, guardian or custodian, accompanied by the 

student, shall report in person to the school the student attends 

for a conference with the principal or other designated 

representative of the school in order to discuss and correct the 

circumstances causing the inexcusable absences of the student; 

and if the parent, guardian or custodian does not comply with 

the provisions of this article, then the attendance director or 

assistant shall make complaint against the parent, guardian or 

custodian before a magistrate of the county. 

This statute was amended in 2013. The language of subsection (b) was not altered, but the 

(b)(1) designation was removed. See W.Va. Code § 18-8-4 (2012 & Supp. 2013). 

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absences. The petitioner maintains that she was assured during a phone call with Ms. Lilly 

on October 23, 2012, that the matter was resolved. 

While the petitioner claims that she never received another notice with regard 

to her child’s unexcused absences from school, the State contends that a second letter, dated 

November 19, 2012, was sent to the Bennetts by Ms. Lilly advising that their child had nine 

unexcused absences at that time. According to the State, the letter gave notice of a scheduled 

meeting to discuss the truancy issues and warned that failure to appear at the meeting would 

result in truancy charges being filed. 

Subsequently, in March 2013, Ms. Lilly, on behalf of the Kanawha County 

Board of Education, filed a criminal complaint against the petitioner in the Magistrate Court 

of Kanawha County pursuant to West Virginia Code § 18-8-4.3 According to the petitioner, 

a complaint was also filed against her husband.4 The criminal complaint indicated that the 

Bennetts’ child had fifteen and a half days of unexcused absences from school and the 

attached summons commanded the petitioner to appear in court to answer the truancycharges 

on April 24, 2013. 

3

See supra note 2. 

4

West Virginia Code § 18-8-4(b) also states that “[m]ore than one parent, guardian or 

custodian may be charged in a complaint.” However, the only named defendant on the 

complaint included in the appendix record submitted to this Court is the petitioner. 

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Upon receipt of the complaint and summons, the petitioner submitted various 

medical and parental excuses5 to Ms. Lilly. According to the petitioner, she had a 

conversation with Ms. Lilly and the prosecuting attorney during which Ms. Lilly confirmed 

that the petitioner had submitted excuses that reduced her child’s number of unexcused 

absences to five. The petitioner contends that she was told the “legal limit” was five, and 

therefore, the charges could not be dismissed, but if she agreed to plead guilty, the criminal 

action against her husband would not be pursued. Accordingly, on April 24, 2013, the 

5

Pursuant to 126 C.S.R. 81, each county in this state is required to develop and 

implement a school attendance policy in accordance with the guidelines set forth in that 

regulation. Further, 126 C.S.R. 81-6.1.b.3 requires that each county’s attendance policy 

define excused absences as set forth in West Virginia Code §§ 18-8-1 and -2. In accordance 

therewith, Section 19.03.2 of the attendance policy of Kanawha County Schools defines 

“excused absence” to include the following: (1) school approved curricular and co-curricular 

activities; (2) failure of the school bus to run or other hazardous condition; (3) illness or 

injuryof the student requiring physician’s verification; (4) medical and/or dental appointment 

which cannot be scheduled outside the school day when the absence is verified in writing by 

the physician or dentist; (5) illness of student verified by parent/guardian not to exceed five 

days per school year; (6) illness or injury in family when student absence is verified as 

essential by physician; (7) calamity, such as fire in the home, flood, family emergency, or 

hazardous condition approved by school principal; (8) death in the family, limited to three 

days for each occurrence except in extraordinarycircumstances; (9) leaves of education value 

adhering to certain specified stipulations; (10) legal obligation with verification; (11) 

observance of religious holidays with verification; (12) contagious parasite conditions 

verified by school personnel not to exceed two days unless extended period verified by a 

physician; (13) documented chronic medical condition; and (14) documented disability. 

Kanawha County Schools, Kanawha County Board of Education Policy, available at 

http://kcs.kana.k12.wv.us/KCS11/index.php/policies-and-procedures-about-us/cat_view/2 

8-policies/37-series-j-students (follow “J19-Attendance” hyperlink) (last visited April 16, 

2014). 

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petitioner appeared at the scheduled hearing, unrepresented by counsel, and entered a plea 

of guilty. 

During the April 24, 2013, hearing, the petitioner testified that her child had 

been ill and suffered from “mono” in November 2012. Thereafter, the court accepted her 

guilty plea. She was then ordered to pay a $50 fine and $160.80 in court costs; she was also 

placed on probation for ninety days and ordered to perform five days of community service, 

which the court indicated would “likely be [served] at the school.” The sentencing order was 

entered on April 24, 2013, and this appeal followed.6 

II. Standard of Review 

Our standard of review with regard to a lower’s court order is well-established 

and provides as follows: 

In reviewing challenges to the findings and conclusions 

of the circuit court, we apply a two-prong deferential standard 

of review. We review the final order and the ultimate 

disposition under an abuse of discretion standard, and we review 

the circuit court’s underlying factual findings under a clearly 

6

On May 10, 2013, the petitioner, by counsel, filed a motion for reconsideration of her 

sentence with the lower court. The motion was denied. The petitioner then filed a motion 

for stay of execution of her sentence with the lower court, which was also denied. Finally, 

the petitioner filed a motion for stay of execution of her sentence with this Court. By order 

entered June 18, 2013, this Court granted the petitioner relief and stayed the April 24, 2013, 

sentencing order pending resolution of this appeal. 

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erroneous standard. Questions of law are subject to a de novo 

review. 

Syl. Pt. 2, Walker v. West Virginia Ethics Comm’n., 201 W.Va. 108, 492 S.E.2d 167 (1997). 

With respect to alleged errors related to sentencing, this Court recently explained that 

[g]enerally, “[s]entences imposed by the trial court, if within 

statutory limits and if not based on some unpermissible factor, 

are not subject to appellate review.” Syl. Pt. 4, State v. 

Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). However, 

where it is alleged that the circuit court has failed to impose a 

sentence consistent with the law, appellate review is warranted. 

“The Supreme Court of Appeals reviews sentencing orders [. . 

.] under a deferential abuse of discretion standard, unless the 

order violates statutory or constitutional commands.” Syl. Pt. 1, 

[in part] State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 

State v. Eilola, 226 W.Va. 698, 701, 704 S.E.2d 698, 701 (2010). With these standards in 

mind, we consider the parties’ arguments. 

III. Discussion 

The petitioner first contends that the lower court erred by accepting her guilty 

plea because it failed to comply with Rule 11(f) of the West Virginia Rules of Criminal 

Procedure, which states that “[n]otwithstanding the acceptance of a plea of guilty, the court 

should not enter a judgment upon such plea without making such inquiry as shall satisfy it 

that there is a factual basis for the plea.” The petitioner argues that had the court questioned 

her regarding the basis for her plea, it would have learned that she had been told by school 

officials that five unexcused absences are acceptable and that to be guilty of truancy, per 

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county school board policy, a child must have more than five unexcused absences. During 

oral argument before this Court, the petitioner further asserted that because she testified 

during the hearing that the reason her child was absent from school was due to illness, she 

was actually denying that she was guilty. To the contrary, the State maintains that the court’s 

acceptance of the petitioner’s guilty plea was proper because it was based on the undisputed 

fact that her child had five unexcused absences from school. We agree. 

The record clearly reflects that the court made the requisite inquiry as to the 

basis for the petitioner’s guilty plea. After the petitioner indicated that she wished to plead 

guilty, the following testimony occurred: 

THE COURT: Why is your child not going to school?
 

MS. BENNETT: I have turned in doctor’s notes and the rest of
 

my parent’s notes that I was able to use, and we have it down to
 

five unexcused absences. Ms. Lilly can tell you that as well.
 

THE COURT: Okay. Well, why is [sic] your child missed so
 

much?
 

MS. BENNETT: [The child has] been ill and . . . had
 

mono[nucleosis] in November.
 

THE COURT: Ms. Lilly, is that right? She has got excuses?
 

MS. LILLY: Yes, she did turn in doctor’s excuses up through
 

last week and that brought them down to five unexcused. 

Although the petitioner testified that illness was the cause of her child’s absences from 

school, she readily admitted that there were five days of absences for which she was unable 

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to provide either a doctor or parental excuse. Thus, there is no basis for her to now claim that 

she denied being guilty during the hearing. Likewise, the petitioner has acknowledged that 

she was told prior to entry of her guilty plea that the charges against her would not be 

dismissed because her child had five unexcused absences, which is the trigger for truancy 

proceedings pursuant to West Virginia Code § 18-8-4. Therefore, the court did not err in 

accepting the petitioner’s guilty plea to the misdemeanor offense of truancy as set forth in 

West Virginia Code § 18-8-2 based on the undisputed fact that her child had five days of 

unexcused absences from school. 

Next, the petitioner contends that the circuit court erred byimposing a sentence 

not authorized by West Virginia Code § 18-8-2. Because the court placed her on probation 

for ninety days and ordered her to perform five days of community service in addition to 

imposing a $50.00 fine and court costs, the petitioner argues that her sentence does not 

conform to the applicable statutory sentencing provision. In support of her argument she 

relies upon syllabus point three of State ex rel. Nicholson v. Boles, 148 W.Va. 229, 134 

S.E.2d 576 (1964), which states that 

[t]he general rule supported by the weight of authority is 

that a judgment rendered by a court in a criminal case must 

conform strictly to the statute which prescribes the punishment 

to be imposed and that any variation from its provisions, either 

in the character or the extent of the punishment inflicted, renders 

the judgment absolutely void. 

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The State argues, however, that the court merely exercised its discretion pursuant to West 

Virginia Code § 62-12-1 (2010), which provides that “[a]ny circuit court of this State shall 

have authority as provided in this article to place on probation any person convicted of a 

crime.” 

Without question, a circuit court has the authority to impose probation;7 

however, “[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); see also 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.”). To that end, West Virginia Code § 62-12-3 states, in relevant part: 

Whenever, upon the conviction of any person eligible for 

probation under the preceding section [§ 62-12-2], it shall 

appear to the satisfaction of the court that the character of the 

offender and the circumstances of the case indicate that he is not 

likely again to commit crime and that the public good does not 

require that he be fined or imprisoned, the court, upon 

application or of its own motion, may suspend the imposition or 

execution of sentence and release the offender on probation for 

such period and upon such conditions as are provided by this 

article; but in no case, except as provided by the following 

section, shall the court have authority to suspend the execution 

7

See W.Va. Code § 62-12-2(a) (2010) (stating that “[a]ll persons who are found guilty 

of or plead guilty to any felony, the maximum penalty for which is less than life 

imprisonment, and all persons who are found guilty of or plead guilty to any misdemeanor, 

shall be eligible for probation, notwithstanding the provisions of sections eighteen [§ 61-11­

18]and nineteen [§ 61-11-19], article eleven, chapter sixty-one of this code.”). 

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of a sentence after the convicted person has been imprisoned for 

sixty days under the sentence. 

As this statute clearly provides, probation is a privilege bestowed upon a criminal defendant 

who has been convicted of a crime whereby the court suspends the imposition or execution 

of the statutorily-prescribed sentence and releases the convicted person subject to certain 

stated conditions. Consequently, before a court may impose a period of probation, the court 

must first suspend the imposition or execution of at least some portion of the sentence 

prescribed for the conviction. 

In this instance, the sentence for the petitioner’s conviction is prescribed by 

West Virginia Code § 18-8-2, which states that for a first offense, the convicted person shall: 

be fined not less than fifty nor more than one hundred dollars 

together with the costs of prosecution, or required to accompany 

the child to school and remain through the school day for so 

long as the magistrate or judge may determine is appropriate. 

Id. (emphasis added). Given the presence of the word “or” in the statute, the petitioner was 

clearly subject to one of two possible sentences. As this Court has explained, “[r]ecognizing 

the obvious, the normal use of the disjunctive ‘or’ in a statute connotes an alternative or 

option to select.” Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 517, 207 S.E.2d 

897, 921 (1974); see also State v. Wilkerson, 230 W.Va 366, 372, 738 S.E.2d 32, 38 (2013) 

(“The use of the word ‘or’ indicates an alternative choice.”); State v. Rummer, 189 W.Va. 

369, 377, 432 S.E.2d 39, 47 (1993) (“We have customarily stated that where the disjunctive 

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‘or’ is used, it ordinarily connotes an alternative between the two clauses it connects.” 

(internal quotations and citations omitted)). Therefore, according the statute its plain 

meaning,8 a person convicted of a first offense of truancy as set forth in West Virginia Code 

§ 18-8-2 is subject to one of two alternative sentences: (1) a fine plus court costs; or (2) 

attendance at school with the child for the entire day for as long as the court deems 

appropriate. Because the court chose to impose a fine and court costs in this case and did not 

suspend that sentence, the court had no basis to place the petitioner on probation as there was 

no other sentence to be imposed in the event of a probation violation on the part of the 

petitioner. Therefore, the court committed reversible error by placing the petitioner on 

probation. 

For the same reason, the court committed reversible error by ordering the 

petitioner to perform five days of community service. Like probation, community service 

is a sentencing alternative that a court has the discretion to impose. In that regard, West 

Virginia Code § 62-11A-1a (2010) provides, in pertinent part: 

(a) Any person who has been convicted in a circuit court 

or in a magistrate court under any criminal provision of this 

code of a misdemeanor or felony, which is punishable by 

imposition of a fine or confinement in the county or regional jail 

or a state correctional facility, or both fine and confinement, 

8

See Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968) (“Where the 

language of a statute is clear and without ambiguity the plain meaning is to be accepted 

without resorting to the rules of interpretation.”). 

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may, in the discretion of the sentencing judge or magistrate, as 

an alternative to the sentence imposed by statute for the crime, 

be sentenced under one of the following programs: 

. . . . 

(3) The community service program under which a 

sentenced person would spend no time in jail, but would be 

sentenced to a number of hours or days of community service 

work with government entities or charitable or nonprofit entities 

approved by the circuit court. 

Again, community service is an alternative or a substitute for a statutory sentence. Having 

imposed the statutory sentence of a fine and court costs upon the petitioner, the court had no 

authority to order the petitioner to perform five days of community service. 

Having found the court committed reversible error by placing the petitioner on 

probation and ordering her to perform community service in addition to imposing a fine and 

court costs, we reverse the final order with respect to the sentence imposed and remand this 

case for a new sentencing hearing only. As this Court has held “‘[w]here in a criminal 

proceeding there is no error other than in the entry of the judgment imposing sentence, the 

judgment should be reversed and the case remanded for proper judgment of sentence to be 

entered by the trial court.’ Syl. pt. 7, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 

(1944), citing, Syl. pt. 5, State v. Fisher, 126 W.Va. 117, 27 S.E.2d 581 (1943).” Syl. Pt. 2, 

State v. Lawson, 165 W.Va. 119, 267 S.E.2d 438 (1980).9 

9

The petitioner also argued that her case was not properly before the lower court 

because she did not receive the November 19, 2012, letter allegedly sent by Ms. Lilly. The 

petitioner asserted that because she did not receive this letter, the notice requirement of West 

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IV. Conclusion 

Accordingly, for the reasons set forth above, the petitioner’s conviction is 

affirmed. The final order entered on April 24, 2013, is reversed with regard to the sentence 

imposed, and this case is remanded for resentencing consistent with this opinion.10 

Affirmed, in part; Reversed, in part; and Remanded. 

Virginia Code § 18-8-4 was not satisfied. We find no merit to this argument because the 

October 8, 2012, “Notice of Unexcused Absence from School,” which the petitioner 

acknowledges she received, satisfied the statutory notice requirements. That notice advised 

the petitioner that her child had five and one half days of unexcused absences from school 

and that continued absences could result in a fine or possible jail sentence as prescribed by 

West Virginia Code § 18-8-2. 

10In reviewing the record submitted with this appeal, we observed that the “Guilty 

Plea” and “Sentencing Order,” which were entered by the circuit court judge who presided 

over the hearing below, are erroneously captioned “In the Magistrate Court of Kanawha 

County” and include the magistrate court case number assigned to this case at its inception. 

We presume that this error resulted from the fact that West Virginia Code § 18-8-4 requires 

that the complaint be filed “before a magistrate of the county.” While we do not question the 

circuit court’s authority to preside over these types of cases given that West Virginia Code 

§ 18-8-2 affords concurrent jurisdiction to magistrates and circuit courts, an order should 

have been entered reflecting the transfer of the case to the jurisdiction of the circuit court. 

Thereafter, the court record should have accurately indicated that the case was before the 

Circuit Court of Kanawha County and a circuit court action number should have been 

assigned to the case. Because it is clear that the “Guilty Plea” and “Sentencing Order” 

utilized in this case are form orders prepared by the court for these types of cases, we advise 

that the changes outlined above be made so that the court records are procedurally accurate. 

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