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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2013 Term FILED 

November 14, 2013 

released at 3:00 p.m. 

No. 12-0513 RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

STATE OF WEST VIRGINIA, 

Plaintiff Below, Respondent 

v. 

GABRIEL HARGUS, 

Defendant Below, Petitioner 

Appeal from the Circuit Court of Kanawha County
 

The Honorable Louis H. Bloom, Judge
 

Criminal Action No. 11-F-40
 

AFFIRMED 

AND 

No. 12-0833 

STATE OF WEST VIRGINIA, 

Plaintiff Below, Respondent 

v. 

ROBERT LEE LESTER, 

Defendant Below, Petitioner 

Appeal from the Circuit Court of Preston County
 

The Honorable Lawrance S. Miller, Jr., Judge
 

Criminal Action No. 07-F-76
 
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AFFIRMED
 

Submitted: October 15, 2013
 

Filed: November 14, 2013
 

Lori M. Peters, Esq. 

Assistant Public Defender 

Kanawha County Public 

Defender’s Office 

Charleston, West Virginia 

Attorney for Petitioner Hargus 

Duane C. Roselieb, Jr, Esq. 

WV Public Defender Services 

Charleston, West Virginia 

and 

Randy R. Goodrich, Esq. 

Kingwood, West Virginia 

Attorneys for Petitioner Lester 

Patrick Morrisey, Esq. 

Attorney General 

Laura Young, Esq. 

Assistant Attorney General 

Charleston, West Virginia 

Attorneys for the State 

William C. Means, Esq. 

Senior Assistant Prosecuting Attorney 

of Preston County 

Kingwood, West Virginia 

Attorney for the State 

CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “When the constitutionality of a statute is questioned every reasonable 

construction of the statute must be resorted to by a court in order to sustain 

constitutionality, and any doubt must be resolved in favor of the constitutionality of the 

legislative enactment.” Syl. pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178 

(1967). 

2. “West Virginia Code § 62-12-26 (2009) is not facially unconstitutional 

on cruel and unusual punishment grounds in contravention of the Eighth Amendment to 

the United States Constitution or Article III, § 5 of the West Virginia Constitution.” Syl. 

pt. 6, State v. James, 227 W. Va. 407, 710 S.E.2d 98 (2011). 

3. “West Virginia Code § 62-12-26 (2009) does not facially violate due 

process principles of the Fourteenth Amendment to the Constitution of the United States 

or Article III, Section 10 of the Constitution of West Virginia. The terms of the statute 

neither infringe upon a criminal defendant’s right to jury determination of relevant factual 

matters, nor are the provisions of the statute regarding conditions of unsupervised release 

unconstitutionally vague.” Syl. pt. 9, State v. James, 227 W. Va. 407, 710 S.E.2d 98 

(2011). 

4. “The imposition of the legislatively mandated additional punishment of 

a period of supervised release as an inherent part of the sentencing scheme for certain 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

offenses enumerated in West Virginia Code § 62-12-26 (2009) does not on its face 

violate the double jeopardy provisions contained in either the United States Constitution 

or the West Virginia Constitution.” Syl. pt. 11, State v. James, 227 W. Va. 407, 710 

S.E.2d 98 (2011). 

5. West Virginia Code § 62-12-26(g)(3) (2011) does not facially violate 

procedural due process principles of the Fourteenth Amendment to the Constitution of the 

United States or Article III, § 10 of the Constitution of West Virginia. 

6. West Virginia Code § 62-12-26 (2011), which provides for a period of 

extended supervision for certain sex offenders, does not violate the equal protection 

guarantees in the Fourteenth Amendment to the United States Constitution or Article III, 

§10 of the Constitution of West Virginia. 

7. West Virginia Code § 62-12-26(g)(3) (2011), which provides for 

additional sanctions, including incarceration, upon revocation of a criminal defendant’s 

period of supervised release, does not violate the prohibition against double jeopardy 

found in the Fifth Amendment of the United States Constitution and Article III, § 5 of the 

Constitution of West Virginia. 

8. “A criminal sentence may be so long as to violate the proportionality 

principle implicit in the cruel and unusual punishment clause of the Eighth Amendment 

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to the United States Constitution.” Syl. pt. 7, State v. Vance, 164 W. Va. 216, 262 S.E.2d 

423 (1980). 

9. “Punishment may be constitutionally impermissible, although not cruel 

or unusual in its method, if it is so disproportionate to the crime for which it is inflicted 

that it shocks the conscience and offends fundamental notions of human dignity, thereby 

violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is 

not proportionate to the character and degree of an offense.” Syl. pt. 5, State v. Cooper, 

172 W. Va. 266, 304 S.E.2d 851 (1983). 

10. “In determining whether a given sentence violates the proportionality 

principle found in Article III, Section 5 of the West Virginia Constitution, consideration 

is given to the nature of the offense, the legislative purpose behind the punishment, a 

comparison of the punishment with what would be inflicted in other jurisdictions, and a 

comparison with other offenses within the same jurisdiction.” Syl. pt. 5, Wanstreet v. 

Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). 

11. “To trigger application of the ‘plain error’ doctrine, there must be (1) an 

error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the 

fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7, State v. 

Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). 

iii 
 

 

 

 

 

12. “An appellant must carry the burden of showing error in the judgment 

of which he complains. This Court will not reverse the judgment of a trial court unless 

error affirmatively appears from the record. Error will not be presumed, all presumptions 

being in favor of the correctness of the judgment.” Syl. pt. 5, Morgan v. Price, 151 W. 

Va. 158, 150 S.E.2d 897 (1966). 

iv 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Benjamin, Chief Justice: 

The two appeals in this case have been consolidated for purposes of 

argument, consideration, and decision. In both appeals, the petitioners raise 

constitutional challenges to the revocation of supervised release and the additional 

sanctions imposed pursuant to W. Va. Code § 62-12-26(g)(3) (2011), which is the 

extended supervision statute for certain sex offenders. After careful consideration of the 

parties’ arguments and the relevant portions of the appendices, we affirm.1 

I. FACTS 

This Court relates the particular facts of each case separately below. 

A. Gabriel Hargus 

In February 2011, Petitioner Gabriel Hargus pled guilty to one count of 

possession of materials depicting a minor engaged in sexually explicit conduct. The 

Circuit Court of Kanawha County sentenced him to two years of incarceration, a period 

of thirty years extended supervision, and lifetime registration as a sex offender under W. 

Va. Code § 62-12-26. 

1 In Mr. Hargus’s case, the State is represented by the Attorney General. While this 

case was pending before the Court, Patrick Morrisey was sworn into office as Attorney 

General for the State of West Virginia, replacing for Attorney General Darrell V. 

McGraw, Jr. 

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Subsequently, the State alleged that Mr. Hargus failed to register as a sex 

offender. By order dated March 15, 2012, the Circuit Court of Kanawha County found, 

following a full hearing, that Mr. Hargus violated a condition of his supervised release by 

(1) failing to provide his alias name of “Ethan Stone” to the West Virginia State Police, 

(2) failing to provide his social security number, and (3) intentionally providing a false 

date of birth. As a result, the circuit court modified Mr. Hargus’s supervised release, 

ordering Mr. Hargus to serve five years, of his thirty years of supervised release 

incarcerated in the penitentiary, and once released from the penitentiary, to be on 

supervised release for another 25 years. Additionally, the circuit court ruled that Mr. 

Hargus shall not reside in a residence with a computer. 

Mr. Hargus now raises several challenges to the circuit court’s March 15, 

2012, order. 

B. Robert Lee Lester 

Petitioner Robert Lee Lester was sentenced to one to five years for the 

offense of third degree sexual assault and a consecutive 90–day sentence for the offense 

of third degree sexual abuse. Also, he was sentenced to a period of ten years of extended 

supervision under W. Va. Code § 62-12-26. Mr. Lester ultimately discharged the one to 

five year and 90–day sentences. 

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Thereafter, Mr. Lester admitted that he had contact, including sexual 

intercourse, with the victim in the underlying case in knowing violation of a sex offender 

condition.2 As a result, the Circuit Court of Preston County, by order of June 5, 2012, 

ordered the modification of Mr. Lester’s supervision requiring Mr. Lester to serve two 

years of incarceration of his ten years of supervised release. The circuit court further 

ruled that Mr. Lester shall, upon release from his incarceration, serve the balance of his 

period of supervised release. 

Like Mr. Hargus, Mr. Lester now challenges the modification of his 

supervised release. 

II.
 

STANDARD OF REVIEW
 

In these appeals, the primary issue is the constitutionality of the portion of 

W. Va. Code § 62-12-26 that permits the revocation of supervised release and additional 

incarceration when a sex offender violates a condition of supervised release. This Court 

previously has held that “[t]he constitutionality of a statute is a question of law which this 

Court reviews de novo.” Syl. pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 

(2008). Additionally, “[w]hen the constitutionality of a statute is questioned every 

2 Mr. Lester’s original convictions arose from his conduct with his then 13-yearold girlfriend, Melanie N. Mr. Lester was 19 years of age at the time. When Mr. Lester 

had sexual intercourse with Melanie N. again resulting in the modification of his 

supervised release, Melanie N. was 18 years old. 

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reasonable construction of the statute must be resorted to by a court in order to sustain 

constitutionality, and any doubt must be resolved in favor of the constitutionality of the 

legislative enactment.” Syl. pt. 3, Willis v. O’Brien, 151 W. Va. 628, 153 S.E.2d 178 

(1967). 

III. 

ANALYSIS 

The petitioners in this case were sentenced pursuant to W. Va. Code § 62­

12-26, which provides for extended supervision of certain sex offenders. This Court 

previously has explained that “[f]undamentally, the statute provides that a court impose a 

period of extended supervision as part of the criminal sentence for certain specified 

offenses, and sets forth the manner in which the supervision is to be administered and 

enforced.” State v. James, 227 W. Va. 407, 414, 710 S.E.2d 98, 105 (2011). Subsection 

(a) of the statute explains its general operation as follows: 

Notwithstanding any other provision of this code to the 

contrary, any defendant convicted after the effective date of 

this section of a violation of section twelve [§ 61-8-12], 

article eight, chapter sixty-one of this code or a felony 

violation of the provisions of article eight-b [§§ 61-8B-1 et 

seq.], eight-c [§§ 61-8C-1 et seq.] or eight-d [§§ 61-8D-1 et 

seq.] of said chapter shall, as part of the sentence imposed at 

final disposition, be required to serve, in addition to any other 

penalty or condition imposed by the court, a period of 

supervised release of up to fifty years: Provided, That the 

period of supervised release imposed by the court pursuant to 

this section for a defendant convicted after the effective date 

of this section as amended and reenacted during the first 

extraordinary session of the Legislature, 2006, of a violation 

of section three [§ 61-8B-3] or seven [§ 61-8B-7], article 

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eight-b, chapter sixty-one of this code and sentenced pursuant 

to section nine-a [§ 61-8B-9a] of said article, shall be no less 

than ten years: Provided, however, That a defendant 

designated after the effective date of this section as amended 

and reenacted during the first extraordinary session of the 

Legislature, 2006, as a sexually violent predator pursuant to 

the provisions of section two-a [§ 15-12-2a], article twelve, 

chapter fifteen of this code shall be subject, in addition to any 

other penalty or condition imposed by the court, to supervised 

release for life: Provided further, That pursuant to the 

provisions of subsection (g) of this session, a court may 

modify, terminate or revoke any term of supervised release 

imposed pursuant to subsection (a) of this section. 

W. Va. Code § 62-12-26(a). 

This Court previously has decided that W. Va. Code § 62-12-26 is facially 

constitutional. In James, this Court held as follows: 

6. West Virginia Code § 62-12-26 (2009) is not 

facially unconstitutional on cruel and unusual punishment 

grounds in contravention of the Eighth Amendment to the 

United States Constitution or Article III, § 5 of the West 

Virginia Constitution. 

9. West Virginia Code § 62-12-26 (2009) does not 

facially violate due process principles of the Fourteenth 

Amendment to the Constitution of the United States or Article 

III, Section 10 of the Constitution of West Virginia. The 

terms of the statute neither infringe upon a criminal 

defendant’s right to jury determination of relevant factual 

matters, nor are the provisions of the statute regarding 

conditions of unsupervised release unconstitutionally vague. 

11. The imposition of the legislatively mandated 

additional punishment of a period of supervised release as an 

inherent part of the sentencing scheme for certain offenses 

enumerated in West Virginia Code § 62-12-26 (2009) does 

not on its face violate the double jeopardy provisions 

5 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

contained in either the United States Constitution or the West 

Virginia Constitution.3 

(footnote added). Syl. pts. 6, 9, and 11, James, 227 W. Va. 407, 710 S.E.2d 98. 

However, James did not involve the modification, termination, or revocation of the 

supervised release portions of the defendants’ sentences. For that reason, in this case, this 

Court will address the constitutionality of revocation of supervised release and postrevocation sanctions. 

The petitioners herein raise constitutional challenges to W. Va. Code § 62­

12-26(g)(3), which concern specifically the revocation of supervised release and postrevocation sanctions as follows: 

(g) Modification of conditions or revocation. – The court 

may: 

. . . . 

(3) Revoke 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 revocation 

of probation, finds by clear and convincing evidence that the 

defendant violated a condition of supervised release, except 

that a defendant whose term is revoked under this subdivision 

may not be required to serve more than the period of 

supervised release[.] 

3 W. Va. Code § 62-12-26 was amended in 2011. However, the changes made 

were few and minor and none affect this Court’s decision in James that the statute is 

facially constitutional. 

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A. Procedural Due Process 

The petitioners first assert that the above provision violates the right to 

procedural due process under the state and federal constitutions because a defendant’s 

supervised release can be revoked and the defendant can be sentenced to additional 

incarceration after the court finds by clear and convincing evidence that the defendant 

violated a condition of his supervised release. Mr. Hargus posits that revocation should 

require that a jury find the defendant guilty of the violation beyond a reasonable doubt 

which is required for a finding of guilt in a criminal trial.4 

In our consideration of this issue, we find the case of United States v. 

Johnson, 529 U.S. 694 (2000), to be persuasive. In Johnson, the United States Supreme 

Court considered an issue that arose under the federal supervised release statute found at 

18 U.S.C. § 3583. Like the statute at issue, the Court in Johnson explained that the 

federal statute gives district courts the power to revoke a defendant’s supervised release 

and impose a prison term, and also to impose another term of supervised release 

following imprisonment. Significantly, the Johnson Court attributed post-revocation 

penalties to the defendant’s original conviction and not to a violation of the conditions of 

supervised release. In explaining this decision, the Court recognized that construing the 

4 See U.S. Const. amend. V (stating that no person shall “be . . . deprived of life, 

liberty or property, without due process of law”) and amend. VI (“The accused shall 

enjoy the right to a . . . public trial, by an impartial jury. . . .”); W. Va. Const. art. III, § 10 

(“No person shall be deprived of life, liberty, or property, without due process of law, and 

the judgment of his peers.”). 

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revocation of a defendant’s supervised release and re-imprisonment as punishment for the 

violation of the conditions of supervised release would raise serious constitutional 

questions. The Court additionally indicated: 

Although such violations [of supervised release] often lead to 

reimprisonment, the violative conduct need not be criminal 

and need only be found by a judge under a preponderance of 

the evidence standard, not by a jury beyond a reasonable 

doubt. See 18 U.S.C. § 3583(e)(3) (1988 ed., Supp. V). 

Where the acts of violation are criminal in their own right, 

they may be the basis for separate prosecution, which would 

raise an issue of double jeopardy if the revocation of 

supervised release were also punishment for the same offense. 

Treating postrevocation sanctions as part of the penalty for 

the initial offense, however (as most courts have done), 

avoids these difficulties. 

Johnson, 529 U.S. at 700 (citations omitted).5 

5 In Johnson, the defendant’s supervised release was revoked. The court then 

imposed a prison term of 18 months, and ordered that the defendant be placed on 

supervised release for 12 months following the period of re-imprisonment. The defendant 

challenged on ex post facto grounds the portion of the order requiring him to be placed on 

supervised release for 12 months after his re-incarceration. 

The argument of the defendant in Johnson was based on the fact that the federal 

supervised release statute was not amended to expressly provide for additional supervised 

release after post-revocation incarceration until after the defendant originally was 

sentenced for the underlying crime. The Supreme Court agreed with the defendant. The 

Court reasoned that post-revocation sanctions are part of the penalty for the initial 

offense, and the amended portion of the statute expressly authorizing imposition of an 

additional term of supervised release does not apply retroactively. Nevertheless, the 

Court affirmed the defendant’s sentence after finding that even under the statute in effect 

at the time of the defendant’s initial offense, a district court revoking a term of supervised 

release and imposing a period of re-incarceration was authorized to require a further term 

of supervised release following the re-incarceration. 

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It is Mr. Hargus’s position that Johnson does not apply to the instant facts 

because the federal statute construed in Johnson and W. Va. Code § 62-12-26 are 

significantly different. In support of his position, Mr. Hargus asserts that the federal 

statute applies to any federal crime and not just sex crimes. Also, says Mr. Hargus, the 

federal statute places some limits on the amount of time that a defendant may be on 

supervised release and the amount of time a defendant is incarcerated for a violation. In 

addition, Mr. Hargus notes that the federal statute essentially replaces the federal parole 

system. Finally, Mr. Hargus indicates that, unlike the statute at issue, the federal statute 

says that supervised release may be included as part of the sentence whereas W. Va. 

Code § 62-12-26 does not so specify. 

We reject Mr. Hargus’s argument. The fact that there are several 

differences between the two statutes does not mitigate the applicability of the Court’s 

reasoning in Johnson to the statutory provision at issue in this case. Therefore, we apply 

the Johnson Court’s construction of the federal statute, with regard to the revocation of 

extended supervision and post-revocation incarceration, to the provisions of W. Va. Code 

§ 62-12-26(g). We find that it is proper to do so because this construction of our statute is 

reasonable, and this Court must resort to every reasonable construction of a statute in 

order to sustain its constitutionality. Consequently, we construe a revocation proceeding 

under W. Va. Code § 62-12-26(g)(3) to be a continuation of the prosecution of the 

original offense and not a new prosecution of additional offenses. Because a revocation 

hearing under W. Va. Code § 62-12-26(g) is not a separate criminal prosecution, it does 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

not require a finding of guilt by a jury beyond a reasonable doubt. As a result, the fact 

that a defendant’s supervised release may be revoked and additional incarceration 

imposed based on the circuit court’s finding by clear and convincing evidence that a 

defendant violated the terms of his supervised release does not violate due process 

principles. 

Accordingly, we now hold that West Virginia Code § 62-12-26(g)(3) 

(2011) does not facially violate procedural due process principles of the Fourteenth 

Amendment to the Constitution of the United States or Article III, § 10 of the 

Constitution of West Virginia.6 

B. Equal Protection 

Second, Mr. Hargus contends that W. Va. Code § 62-12-26(g)(3) violates 

the constitutional guarantee of equal protection under the law.7 Mr. Hargus asserts that 

6 In his first assignment of error, Mr. Hargus also asserts that the extended 

supervision act violates substantive due process principles. However, because Mr. Hargus 

fails to present a separate and specific argument accompanied by citation to legal 

authority to support this assertion, we decline to address this issue. 

7 See U.S. Const., amend. 14 (“No State shall . . . deny to any person within its 

jurisdiction the equal protection of the laws.”); W. Va. Const. art. III, § 10 (“No person 

shall be deprived of life, liberty, or property, without due process of law, and the 

judgment of his peers.”); see also Syl. pt. 4, in part, Gibson v. W. Va. Dept. of Highways, 

185 W. Va. 214, 406 S.E.2d 440 (1991) (indicating that “Article III, Section 10 of the 

West Virginia Constitution . . . is our equal protection clause”). 

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the fact that W. Va. Code § 62-12-26 applies only to sex offenders and no other criminal 

defendants violates equal protection principles. 

Mr. Hargus’s equal protection argument has no merit. This Court has 

explained that “equal protection means the State cannot treat similarly situated people 

differently unless circumstances justify the disparate treatment.” Kyriazis v. University of 

West Virginia, 192 W. Va. 60, 67, 450 S.E.2d 649, 656 (1994) (citations omitted). In the 

instant case, Mr. Hargus is not similarly situated to criminal defendants who were not 

convicted of the sex offenses specified in W. Va. Code § 62-12-26(a). Because Mr. 

Hargus was convicted of a sex offense for which W. Va. Code § 62-12-26 applies, he is 

subject to the sentencing provisions of that statute. It is the Legislature’s prerogative to 

criminalize certain conduct and to determine the punishment for that conduct. Having 

been found guilty of violating a specific statute, Mr. Hargus is subject to the punishment 

that is appropriate for a violation of that statute as determined by the Legislature. He 

cannot complain that those who violate different criminal statutes are punished 

differently than he is. See, e.g., Drew v. State, 684 S.E.2d 608 (Ga. 2009) (opining that 

criminal defendants are similarly situated for purposes of equal protection only if they are 

charged with the same crime or crimes). Therefore, this Court holds that West Virginia 

Code § 62-12-26 (2011), which provides for a period of extended supervision for certain 

sex offenders, does not violate the equal protection guarantees found in the Fourteenth 

Amendment to the United States Constitution or Article III, § 10 of the Constitution of 

West Virginia. 

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C. Double Jeopardy 

Both Mr. Hargus and Mr. Lester posit that post-revocation sanctions 

provided for in W. Va. Code § 62-12-26(g)(3) violate the constitutional guarantee against 

double jeopardy.8 The petitioners argue that a person sentenced to incarceration for a 

violation of supervised release is punished twice, once for the original offense and then a 

second time when his supervised release is revoked and he is sentenced to postrevocation incarceration. 

We find that the extended supervision statute does not violate double 

jeopardy principles. As we held above, a post-revocation sanction simply is a 

continuation of the legal consequences of a defendant’s original crime. In other words, it 

is part of a single sentencing scheme arising from the defendant’s original conviction. It 

is not an additional penalty resulting from the defendant’s initial conviction.9 For this 

reason, a post-revocation sanction does not violate the constitutional guarantee against 

double jeopardy. Accordingly, this Court now holds that West Virginia Code § 62-12­

26(g)(3) (2011), which provides for additional sanctions, including incarceration, upon 

8 See U.S. Const. amend. V (stating “nor shall any person be subject for the same 

offense to be twice put in jeopardy of life or limb”); W. Va. Const. art. III, § 5 (“No 

person shall . . . be twice put in jeopardy of life or liberty for the same offence.”). 

9 In support of their argument, the petitioners note that this Court referred to 

supervised release in syllabus point 11 of James, supra, as “additional punishment.” 

Inasmuch as we held in James that a sentence of supervised release does not violate 

double jeopardy principles, it is clear that our use of the term “additional punishment” 

does not indicate a second and separate punishment for the same offense. 

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revocation of a criminal defendant’s period of supervised release, does not violate the 

prohibition against double jeopardy found in the Fifth Amendment of the United States 

Constitution and Article III, § 5 of the Constitution of West Virginia. 

D. Disproportionate Sentence 

The next assignment of error raised by both Mr. Hargus and Mr. Lester is 

that their post-revocation sentences constitute cruel and unusual punishment in that the 

sentences are disproportionate to the crimes they committed. This Court will consider 

individually the petitioners’ sentences. 

1. Mr. Hargus’s Post-Revocation Sentence 

Mr. Hargus initially served two years of incarceration for possessing 

material depicting minors engaged in sexually explicit conduct. Subsequently, the circuit 

court found that Mr. Hargus violated a condition of his supervised release by failing to 

register as a sex offender as required. Specifically, the circuit court found that Mr. Hargus 

failed to provide to the State Police his alias name of “Ethan Stone” and his social 

security number, and that he intentionally provided a false date of birth. As a result, Mr. 

Hargus was sentenced to a post-revocation period of incarceration of five years and 

thereafter ordered to complete the balance of his term of supervised release which is 25 

years. Mr. Hargus claims that his additional incarceration shocks the conscience and is 

objectively disproportionate to his crimes. 

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This Court has indicated that “[a] criminal sentence may be so long as to 

violate the proportionality principle implicit in the cruel and unusual punishment clause 

of the Eighth Amendment to the United States Constitution.” Syl. pt. 7, State v. Vance, 

164 W. Va. 216, 262 S.E.2d 423 (1980). There are two tests to determine whether a 

sentence is so disproportionate to a crime that it violates the West Virginia Constitution. 

The subjective test is found in syllabus point 5 of State v. Cooper, 172 W. Va. 266, 304 

S.E.2d 851 (1983), which provides: 

Punishment may be constitutionally impermissible, 

although not cruel or unusual in its method, if it is so 

disproportionate to the crime for which it is inflicted that it 

shocks the conscience and offends fundamental notions of 

human dignity, thereby violating West Virginia Constitution, 

Article III, Section 5 that prohibits a penalty that is not 

proportionate to the character and degree of an offense. 

When it cannot be found that a sentence shocks the conscience, a disproportionality 

challenge is guided by the objective test which states: 

In determining whether a given sentence violates the 

proportionality principle found in Article III, Section 5 of the 

West Virginia Constitution, consideration is given to the 

nature of the offense, the legislative purpose behind the 

punishment, a comparison of the punishment with what 

would be inflicted in other jurisdictions, and a comparison 

with other offenses within the same jurisdiction. 

Syl. pt. 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). 

In support of his claim that his post-revocation incarceration is 

constitutionally disproportionate to his crime, Mr. Hargus notes that his only criminal 

conviction is the one that qualified him to be sentenced under the extended supervision 

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statute. In light of this fact, Mr. Hargus asserts that his post-revocation incarceration of 

five years shocks the conscience. With regard to the objective test, Mr. Hargus indicates 

that he was convicted of possessing child pornography which is not an offense involving 

sexual contact. Also, he notes that his supervised release was revoked based solely on a 

technical violation of a condition of supervised release. In addition, Mr. Hargus contends 

that other states take “less drastic measures” to manage sex offenders in which the 

periods of supervision and the punishments for violations are shorter. He cites, for 

example, Iowa, where, he says, a person can serve no more than two years of 

incarceration upon his first violation of extended supervision and no more than five years 

for a subsequent violation. He also refers to Wisconsin where, he says, prior to a sentence 

of lifetime supervision, the prosecutor must provide notice that the state is seeking 

lifetime supervision and there must be a judicial finding that lifetime supervision is 

appropriate. 

This Court finds that Mr. Hargus’s post-revocation incarceration of five 

years and requirement that he serve the balance of his supervised release does not violate 

our constitutional proportionality principle. First, the crime which qualified Mr. Hargus 

for sentencing under the extended supervision statute, possession of child pornography, is 

a serious offense. Child pornography victimizes children—the most vulnerable members 

of society. In addition, the heinous nature of the acts involved in producing child 

pornography is likely to cause immeasurable emotional and psychological violence to the 

children involved. While Mr. Hargus’s crime did not involve sexual contact, his 

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consumption of child pornography made him an active participant in its production and 

dissemination. Further, while Mr. Hargus characterizes his violation of a condition of 

supervised release as “technical,” the violation indicates a pattern of dishonesty. For these 

reasons, this Court finds that the post-revocation sanctions levied against Mr. Hargus do 

not shock the conscience or offend fundamental notions of human dignity. 

Second, this Court finds that Mr. Hargus’s post-revocation sanctions do not 

violate the objective test for constitutional disproportionality. In sum, Mr. Hargus has 

failed to specifically address how the nature of the offense, the legislative purpose behind 

the punishment, and a comparison with other offenses within the same jurisdiction 

compels the finding that his post-revocation sanctions violate our constitution’s 

proportionality principle. 

2. Mr. Lester’s Post-revocation Sentence 

Mr. Lester originally was convicted of the felony offense of third degree 

sexual assault and the misdemeanor offense of third degree sexual abuse. He was 

sentenced to one to five years for the offense of third degree sexual assault and a 

consecutive 90–day sentence for the offense of third degree sexual abuse. In addition, he 

was sentenced to a ten-year period of supervised release under the extended supervision 

statute. After Mr. Lester admitted that he had contact with the victim of his underlying 

crimes, including sexual intercourse, in knowing violation of a condition of his 

supervised release, Mr. Lester’s supervised release was revoked and he was sentenced to 

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two years of incarceration after which he is to be on supervised release for the balance of 

the ten-year period. Mr. Lester now asserts that his post-revocation sanction is 

disproportionate to the facts of his crimes. We find no merit to Mr. Lester’s assertion. 

Mr. Lester has failed to convince this Court that his additional two years of 

incarceration followed by serving the balance of his period of supervised release should 

shock the conscience of this Court or that these sanctions offend fundamental notions of 

human dignity. In addition, Mr. Lester has not addressed why consideration of the nature 

of his offenses, the legislative purpose behind his punishment, a comparison of the 

punishment with what would be inflicted in other jurisdictions, and a comparison with 

other offenses within the same jurisdiction compels the finding that his post-revocation 

sentence violates constitutional proportionality principles. Therefore, we conclude that 

his post-revocation sanctions do not violate the constitutional proportionality principle.10 

E. Mr. Hargus’s Notice of Violations of Conditions of Supervised Release 

Mr. Hargus asserts that due process requires that a defendant receive notice 

of the charges against him so that he may prepare a proper defense. According to Mr. 

Hargus, he received proper notice of his alleged failures to provide an accurate birth date 

and an accurate accounting of his alias; however, Mr. Hargus contends that nowhere in 

the original criminal complaint of failure to register or in the notice of violation is there 

10 Mr. Lester also asserts that the extended supervision statute is overly vague. 

However, Mr. Lester does not include a supporting argument or citation to authority. 

Therefore, we decline to consider this issue. 

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any reference to an alleged failure to provide an accurate social security number. 

Nevertheless, at the close of the violation hearing, the circuit court found that Mr. Hargus 

violated the condition of his supervised release, in part, by failing to provide an accurate 

social security number. While Mr. Hargus admits that he did not object to this failure of 

notice below, he now avers that it constitutes plain error. Mr. Hargus concludes that 

because he did not receive constitutionally adequate notice of this allegation, the circuit 

court’s finding of a violation of the condition of his supervised release based on his 

failure to provide an accurate social security number must be reversed. 

Under our law, “[t]o trigger application of the ‘plain error’ doctrine, there 

must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously 

affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. pt. 7, 

State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995). Presuming that there was error in 

failing to give Mr. Hargus notice of the allegation that he did not provide an accurate 

social security number to the State Police in registering as a sex offender, we find that the 

error did not affect Mr. Hargus’s substantial rights. “Normally, to affect substantial rights 

means that the error was prejudicial. It must have affected the outcome of the 

proceedings in the circuit court.” Miller, 194 W. Va. at 18, 459 S.E.2d at 129. The failure 

of notice complained of did not affect the outcome of the proceedings regarding the 

revocation of Mr. Hargus’s supervised release. 

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In its order revoking Mr. Hargus’s supervised release and sentencing him to 

additional incarceration, the circuit court found that Mr. Hargus failed to register in three 

ways, two of which Mr. Hargus does not challenge on appeal. Absent the finding that Mr. 

Hargus failed to provide his social security number, two findings remain to support the 

circuit court’s ruling that Mr. Hargus violated a condition of supervised release by failing 

to register. As a result, if the circuit court’s finding that Mr. Hargus failed to provide his 

social security number to the State Police was error, it did not affect the circuit court’s 

determination that Mr. Hargus failed to register. 

F. Constitutionality of Restriction on Mr. Hargus’s Computer Usage 

Finally, in the order modifying Mr. Hargus’s sentence, the circuit court 

ordered that Mr. Hargus shall not reside in a residence with a computer. Mr. Hargus now 

asserts that this condition is unconstitutional in that it directly impinges on his first 

amendment rights. According to Mr. Hargus, a person’s internet usage can be monitored 

in other ways that would not require a full ban on internet use. Mr. Hargus explains that 

the internet is a vital part of modern living and without it a person loses many 

opportunities to apply for jobs and stay in contact with one’s family and friends. In 

support of his argument, Mr. Hargus cites United States v. Heckman, 592 F.3d 400 

(2010) and United States v. Burroughs, 613 F.3d 233 (D.C.Cir. 2010). Mr. Hargus 

concludes that the restriction regarding not residing in a residence with a computer is 

“excessive” and must be struck down. 

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We find that Heckman is instructive. In that case, the Mr. Heckman “was 

prohibited from access to any Internet service provider, bulletin board system, or any 

other public or private computer network for the remainder of his life—without 

exception.” Heckman, 592 F.3d at 405 (internal quotation omitted). The imposition of 

this condition on Mr. Heckman was pursuant to 18 U.S.C. § 3583(d), allowing federal 

courts to impose conditions when those conditions are appropriate as long as those 

conditions do not, among other things, involve a greater deprivation of liberty than is 

necessary. The Heckman court found that “only a condition with no basis in the record, or 

with only the most tenuous basis, will inevitably violate § 3583(d)(2)’s command that 

such conditions involve no greater deprivation of liberty than is reasonably necessary.” 

592 F.3d at 405 (internal quotation omitted). 

The West Virginia Code, like the United States Code, also allows for the 

imposition of conditions upon supervised release. W. Va. Code § 62-12-26(e) states that 

“[a] defendant sentenced to a period of supervised release shall be subject to any or all of 

the conditions applicable to a person placed upon probation pursuant to the provisions of 

section nine of this article [§ 62-12-9].” Pursuant to W. Va. Code § 62-12-9(b), a “court 

may impose, subject to modification at any time, any other conditions which it may deem 

advisable.” A court’s power to impose conditions upon supervised release under W. Va. 

Code § 62-12-26(e) is limited by the liberty protections of the United States Constitution. 

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Upon analyzing the impact of the condition imposed in Heckman, the Third 

Circuit Court of Appeals concluded that the lifetime ban on Internet use was excessive in 

length and too broad in coverage and that it constituted a greater deprivation of liberty 

than was reasonably necessary. The facts of that case, however, are distinguishable from 

those in the instant case. In contrast to Heckman, Mr. Hargus has not been banned from 

all computer or Internet usage; the condition only prohibits him using a computer or 

accessing the Internet in his residence. Also, the provision that Mr. Hargus challenges 

does not indicate that it is in effect for the remainder of Mr. Hargus’s life. Finally, we 

note that there is good reason to restrict Mr. Hargus’s computer and Internet usage in his 

own home: Mr. Hargus has shown a propensity for downloading sexually explicit 

material involving minors onto his computer, and such material that may be accessed 

more easily in the privacy of a home. 

Burroughs is also distinguishable from the instant case. In Burroughs, the 

federal court found that a condition of supervised release that required the defendant to 

submit to monitoring of his computer use and to keep a log of his internet activity was 

not reasonably related to any need to provide correctional treatment to the defendant 

whose offense of sexual abuse of a minor did not involve use of the Internet as an 

instrument of his offense. In the instant case, however, Mr. Hargus’s underlying offense 

involved downloading child pornography onto his computer. For these reasons, this Court 

finds that Burroughs does not constitute persuasive authority in deciding the instant issue. 

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We conclude that the facts presented in both Heckman and Burroughs are 

distinguishable from the case at bar. We find that while the restrictions in Heckman and 

Burroughs were unconstitutionally restrictive, the condition placed on Mr. Hargus does 

not unreasonably restrict his liberty and is reasonably related to the goals of deterrence 

and protection of the public. 

IV.
 

CONCLUSION
 

In sum, this Court determines that W. Va. Code § 62-12-26(g)(3) of the 

extended supervision statute, which provides that a circuit court may revoke a 

defendant’s supervised release and impose post-revocation sanctions after the court finds 

by clear and convincing evidence that the defendant violated a condition of his or her 

supervised release, does not violate constitutional principles of due process, equal 

protection, and double jeopardy. In addition, we find that Mr. Hargus’s and Mr. Lester’s 

post-revocation sanctions are not constitutionally disproportionate to their underlying 

convictions. Further, we find that the revocation of Mr. Hargus’s supervised release and 

imposition of post-revocation sanctions are not constitutionally infirm because of a lack 

of notice. Finally, we find that the requirement that Mr. Hargus not reside in a residence 

with a computer is not a constitutional violation. 

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For the reasons stated above, this Court affirms the March 15, 2012, order 

of the Circuit Court of Kanawha County that modified the sentence of Petitioner Gabriel 

Hargus pursuant to W. Va. Code § 62-12-26(g)(3) in case number 12-0513. 

We also affirm the June 5, 2012, order of the Circuit Court of Preston 

County that modified the sentence of Petitioner Robert Lee Lester pursuant to W. Va. 

Code § 62-12-26(g)(3) in case number 12-0833. 

Case No. 12-0513 – Affirmed. 

Case No. 12-0833 – Affirmed. 

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