State v. Cookman

813 S.E.2d 769

STATE of West Virginia, Respondent

v.Donald P. COOKMAN, Petitioner

No. 17-0276

Supreme Court of Appeals of West Virginia.

Submitted: February 6, 2018

Filed: April 27, 2018

Jennifer K. Mason, Esq., Dinsmore & Shohl LLP, Lewisburg, West Virginia, Donald H. Cookman, Esq., Romney, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, Zachary A. Viglianco, Esq., Assistant Attorney General, Gordon L. Mowen, II, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the State

Workman, Chief Justice:

Donald P. Cookman (hereinafter "the Petitioner") appeals an order of the Circuit Court of Hampshire County imposing a five-year term of probation upon him. He contends that the circuit court violated the requirements of West Virginia Code § 62-12-11 (2014) by ordering a probationary period that exceeded the statutory limit of five years and also erred in revoking the Petitioner’s prior period of probation without thoroughly evaluating the Petitioner’s ability to pay the required restitution.

Based upon this Court’s review of the briefs, appendix record, arguments of counsel, and pertinent authority, we reverse the decision of the circuit court and remand for further proceedings consistent with this opinion.

I. Factual and Procedural History

In February 2009, the Petitioner was charged with four counts of embezzlement and four counts of forgery. The Petitioner, while employed as an attorney, had allegedly stolen nearly $300,000.00 from three different clients. On July 6, 2009, the parties reached a plea agreement through which the Petitioner agreed to plead guilty to two counts of embezzlement, and the State agreed to dismiss the remaining six counts. Upon acceptance of the plea, the circuit court agreed to hold the plea in abeyance and place the Petitioner in a diversionary drug program. Upon completion of that program, the Petitioner was permitted to withdraw his original plea and plead guilty to two counts of petit larceny. He also agreed to pay an initial $75,000.00 in partial restitution and subsequently "make full restitution based upon a requirement that he pay twenty percent (20%) of his gross earnings on the unpaid balance due to the victims." He was thereafter sentenced to two consecutive one-year sentences on the two counts of petit larceny. The circuit court suspended the sentences and placed the Petitioner on probation for five years. The effective starting date of that probationary period was March 24, 2011.

On February 10, 2016, approximately one month before the Petitioner’s five-year probationary period was set to expire, the State filed a motion to revoke probation. It contended that the Petitioner had failed to make restitution payments totaling twenty percent of his gross income, as required, leaving an outstanding restitution balance of over $118,000.00.

During a March 10, 2016, revocation hearing, the Petitioner admitted to the violation and wrote a check for $53,748.40. The circuit court revoked his probation by order dated March 16, 2016, approximately eight days before the Petitioner’s five-year probationary period was set to expire. The circuit court imposed one of the original sentences—one year of incarceration for his conviction of petit larceny. The circuit court dismissed the other count of petit larceny. The Petitioner moved for a reduction of sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure,¹ requesting that the circuit court grant him an alternative sentence in the form of probation in lieu of incarceration. Granting that motion, the circuit court imposed a second five-year probationary period upon the Petitioner, requiring full restitution prior to the expiration of that period.

On November 14, 2016, the State filed a second motion to revoke probation, based upon the Petitioner’s alleged violations of probation, including the consumption of alcohol, harassment, domestic battery, and obstructing law enforcement. Prior to a hearing on that motion to revoke, the Petitioner filed a writ of prohibition before this Court, alleging that the circuit court had violated West Virginia Code § 62-12-11 by extending his probation beyond the original five-year period, despite the Petitioner’s request for probation rather than imprisonment. This statute provides, in relevant part, that "[t]he period of probation together with any extension thereof shall not exceed five years."² The petition was refused by this Court by order dated January 25, 2017.³

Proceedings in the circuit court thereafter resumed, and the Petitioner argued that the circuit court lacked authority to impose an additional five-year probationary period in March 2016 due to the limiting language of West Virginia Code § 62-12-11. Furthermore, the Petitioner argued that his original probation should not have been revoked because the State failed to prove that he was able to pay restitution without undue hardship and/or that his failure to pay restitution was contumacious.

By order dated March 21, 2017, the circuit court revoked the Petitioner’s second five-year probationary period based upon his consumption of alcohol, harassment, domestic battery, and obstructing law enforcement. The circuit court ordered the Petitioner to serve thirty days in jail for the probation violation and required that he remain on probation for the remainder of the second five-year probationary period after serving that thirty-day jail sentence.

The Petitioner now appeals to this Court, advancing the same arguments he asserted in circuit court. He contends that imposition of the additional five-year probationary period in March 2016 violated West Virginia Code § 62-12-11 regarding the statutory time limits for probation and that his probation was improperly revoked based upon the absence of evidence that his failure to pay restitution was willfully disobedient and that he was capable of paying restitution without undue hardship.

II. Standard of Review

"Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M v. Charlie A.L. , 194 W.Va. 138, 459 S.E.2d 415 (1995). In syllabus point one of State v. Duke , 200 W.Va. 356, 489 S.E.2d 738 (1997), this Court also explained:

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.

Utilizing those standards as guidance, we review the issues presented in this case.

III. Discussion

The Petitioner’s first assignment of error addresses the imposition of the additional five-year probationary period and the alleged violation of West Virginia Code § 62-12-11 regarding the statutory time limits for probation. West Virginia Code § 62-12-11 provides guidance for the imposition of a term of probation:

The period of probation together with any extension thereof shall not exceed five years. Upon the termination of the probation period, the probation officer shall report to the court the conduct of the probationer during the period of his probation, and the court may thereupon discharge the probationer or extend the probation period. Whenever before the end of the probation period the probationer has satisfactorily complied with all the conditions of his probation and it appears to the court that it is no longer necessary to continue his supervision, the court may discharge him. All orders extending the probation period and all orders of discharge shall be entered in the records of the court, and a copy of all such orders shall be sent by the clerk of the court to the board within five days after the making of the order.

The statute is abundantly clear that the period of probation to be imposed upon an individual, including any extensions thereof, must not exceed five years. See e.g., Jett v. Leverette, 162 W.Va. 140, 144, 247 S.E.2d 469, 471 (1978) ("Moreover, under our probation statute a maximum term of five years is set as the outer limit for probation time."); State v. Reel, 152 W.Va. 646, 165 S.E.2d 813 (1969) (finding absence of jurisdiction after five years had expired from date defendant placed on probation).

The State asserts two primary grounds in support of the circuit court’s probation order in this case. First, the State contends that the Petitioner agreed to the second five-year probationary period and is now precluded from asserting error in its imposition upon him.⁴ Second, the State contends that West Virginia Code § 62-12-11 does not prohibit the imposition of the second probationary period because it is not technically an "extension" of the first probationary period and is instead an independent sentence.

We find no merit in these two arguments asserted by the State. It is of little consequence that the Petitioner consented to a second five-year probationary period where the circuit court lacked authority to extend probation past the maximum five-year limit enunciated by statute. West Virginia has not evaluated the manner in which an individual’s consent could constitute a waiver of the statutory time limitations.

In other jurisdictions, however, courts have concluded that consent does not justify imposition of an illegal probationary period. In Kupfer v. State , 287 Md. 540, 414 A.2d 907 (Md. App. 1980), for instance, a defendant consented to a five-year extension to his probationary period, and the "State argued that Kupfer’s consent to the extension constituted a waiver of the maximum term of probation." Id. at 907. The appellate court disagreed and held that where the aggregate period of probation is statutorily limited to five years, ...