State of West Virginia v. Michael Lee White ( 2022 )

FILED
October 31, 2022
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0472 (Berkeley County CC-02-2019-F-334)
Michael Lee White,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Michael White 1 appeals the May 24, 2021, order of the Circuit Court of
Berkeley County revoking petitioner’s home incarceration and sentencing him to an indeterminate
five-to-twenty-five-year term of incarceration. Upon our review, we determine that oral argument
is unnecessary and that a memorandum decision affirming the circuit court’s order is appropriate.
See W. Va. R.A.P. 21.
In October of 2019, petitioner was indicted on six counts of distribution of a controlled
substance (fentanyl) and one count of distribution of a controlled substance (heroin). In January of
2021, petitioner was placed on home incarceration as a condition of pretrial bond and agreed to its
terms and conditions. In February of 2021, the parties entered into a plea agreement by which
petitioner agreed to plead guilty to two counts of distribution of a controlled substance (fentanyl),
and the State agreed to dismiss the remaining counts. In April of 2021, petitioner pled guilty, and
the circuit court sentenced him to two-to-ten years of incarceration for one count and three-to-
fifteen years of incarceration for the other. The court ordered that these sentences run
consecutively, resulting in an aggregate sentence of five-to-twenty-five years of incarceration. The
court further ordered that petitioner serve his sentence on home incarceration “under standard
terms and conditions as well as any other term deemed necessary by the supervising officer to
meet [petitioner’s] needs.”
On May 5, 2021, the State filed a motion to revoke home incarceration, alleging that
petitioner violated the terms and conditions seventeen times. The first nine of the listed violations
1
Petitioner appears by counsel Bradley Wright. The State of West Virginia appears by
counsel Patrick Morrisey and Mary Beth Niday.
1
occurred prior to petitioner’s sentencing date, between January 8, 2021, and March 21, 2021, and
the remaining seven occurred after sentencing. In general, petitioner was alleged to have used
alcohol once (in January of 2021), “depart[ed] his residence and/or [made] unauthorized stops”
twelve times, allowed his GPS monitor to shut off due to lack of power (twice prior to sentencing),
and failed to report for drug treatment at the day report center as directed. The motion indicated
that petitioner “was direct[ed] to contact [the case manager at the day report center] for treatment
due to his failed [alcohol] screen and has refused treatment.” According to the motion, petitioner
signed voluntary admission forms for each listed violation.
The circuit court held a home incarceration revocation hearing on May 20, 2021. Petitioner
challenged the admissibility of all seventeen violations based on the fact that some of the violations
occurred prior to his sentencing. Ultimately, the circuit court ruled that, in determining whether a
violation had occurred, it would consider only the violations that were alleged to have occurred
after sentencing. However, if it determined that a violation had occurred, it would consider the
totality of the violations at disposition.
The home incarceration officer testified that the rules of home incarceration delineated
authorized and unauthorized locations but gave the option for incarcerated individuals to text their
home incarceration officer for permission to travel to unauthorized locations. The officer testified
that petitioner committed numerous violations between April 30, 2021, and May 2, 2021, including
making four unauthorized stops when he was otherwise required to be at home; traveling to a store
without permission during a two-hour round trip; traveling to a clothing store without prior
permission; and allowing the battery in his GPS monitor to die. 2
The home incarceration officer also testified that he referred petitioner to the day report
center on March 22, 2021, prior to the sentencing date, after petitioner tested position for alcohol
on January 8, 2021. However, petitioner never reported to the center. According to the officer, his
policy was to refer every individual who tested positive for alcohol or controlled substances to the
day report center for alcohol or drug treatment/counseling. The officer explained that petitioner
was initially supervised by a different officer in January of 2021, which was why the referral was
not made until March.
The officer clarified that petitioner did not have a set schedule for work or other
responsibilities. Petitioner would meet with the officer on Fridays to discuss his weekend schedule,
but there was no other schedule provided. The officer explained that the text messaging system
was the best way to receive approval to travel out of the home. The evidence showed that petitioner
was aware of these terms and messaged the officer seeking approval for travel multiple times, and,
in some instances, the officer did not respond to his requests.
Ultimately, the circuit court found that petitioner violated the terms and conditions of home
incarceration. It determined that petitioner traveled without authorization to multiple locations
2
The officer clarified that petitioner requested authorization to travel on May 2, 2021, but
explained that petitioner left his home prior to requesting authorization and did not wait for
authorization before continuing his travel.
2
between April 30, 2021, and May 2, 2021. The court also found that petitioner allowed his GPS
monitor battery to die, which was especially concerning considering that petitioner was provided
with a car charger for the monitor, which facilitated keeping the device charged. Regarding
petitioner’s attempts to seek authorization, the circuit court found that petitioner left his home
regardless of whether he was granted authorization, which was in clear violation of the terms of
his home incarceration. The circuit court proceeded to disposition and imposed petitioner’s
underlying sentence, relying on his extensive criminal history and his failure to comply with the
requirements of his home incarceration. The circuit court’s May 24, 2021, order memorialized its
decision. Petitioner now appeals that order.
On appeal, petitioner asserts that the circuit court erred in failing to include a set schedule
in the order sentencing him to home incarceration and abused its discretion in finding that he failed
to report to the day report center as required by his home incarceration officer. 3 Our home
incarceration statute provides:
If, at any time during the period of home incarceration, there is reasonable cause to
believe that a participant sentenced to home incarceration by the circuit court has
violated the terms and conditions of the circuit court’s order of home incarceration
and the participant’s participation was imposed as an alternative sentence to another
form of incarceration, the participant is subject to the same procedures involving
confinement and revocation as would a probationer charged with a violation of the
order of home incarceration.
W. Va. Code § 62-11B-9(b), in part. We, therefore, review the questions before us in the same
manner we would review the revocation of probationary home incarceration.
“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.” Syllabus Point 1, State v. Duke,
200 W.Va. 356, 489 S.E.2d 738 (1997).
Syl. Pt. 1, State v. Hosby, 220 W. Va. 560, 648 S.E.2d 66 (2007).
In this case, there is no meaningful dispute that petitioner violated the terms and conditions
of his home incarceration. Petitioner acknowledged the terms and conditions of his home
incarceration and signed voluntary admission forms for each violation. We find petitioner’s
argument that the lack of a predetermined schedule prejudiced him unavailing. In the circuit court’s
3
Petitioner also asserts that the circuit court failed to advise him of the possible penalties
for violating the terms of his home confinement. However, the record shows that the circuit court
clearly informed petitioner of those penalties during the April of 2021 sentencing hearing, and we
find no error in that regard.
3
words, “while a texting system is certainly not optimal, it is the system with which [petitioner] was
told to follow, and he essentially disregarded the system that was put in place.” The circuit court
found that petitioner traveled without authorization on multiple occasions and allowed his GPS
monitoring system to lose power, which were clear violations of his terms of home incarceration.
Finally, petitioner argues that he was not afforded due process in the modification of the
terms of his home incarceration, in accordance with this Court’s holding in Louk v. Haynes, 159
W. Va. 482, 223 S.E.2d 780 (1976). However, petitioner failed to raise this issue below. “‘Our
general rule is that nonjurisdictional questions . . . raised for the first time on appeal, will not be
considered.’” Noble v. W. Va. Dep’t of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653
(2009) (quoting Shaffer v. Acme Limestone Co., Inc., 206 W.Va. 333, 349 n. 20, 524 S.E.2d 688,
704 n. 20 (1999)). Accordingly, we find no error in the circuit court’s findings in this regard.
For the foregoing reasons, we find no error in the circuit court’s May 24, 2021, order.
Affirmed.
ISSUED: October 31, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice C. Haley Bunn
DISSENTING:
Justice William R. Wooton
Wooton, Justice, dissenting:
I would have set this case for oral argument on the Rule 19 docket to thoroughly address
whether the circuit court’s “Conviction and Sentencing Order” failed to comply with the provisions
of West Virginia Code section 62-11B-5 in regard to petitioner’s sentence of home incarceration
and what impact the order’s deficiencies had on the circuit court’s decision to revoke petitioner’s
term of home confinement. Therefore, I respectfully dissent.
Petitioner was sentenced on drug-related charges to an aggregate term of five to twenty-
five years to be served on home incarceration. However, the order failed to comply with the
language of West Virginia Code section 62-11B-5; more specifically, failed to set out the terms of
the home incarceration. Instead, the circuit court simply stated in the Conviction and Sentencing
Order that petitioner’s home incarceration would be served “under standard terms and conditions
as well as any other term deemed necessary by the supervising officer to meet [petitioner’s] needs.”
4
West Virginia Code § 62-11B-5(1) provides:
An order for home incarceration of an offender under section four
of this article is to include, but not be limited to, the following:
(1) A requirement that the offender be confined to the offender’s
home at all times except when the offender is:
(A) Working at employment approved by the circuit court or
magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the offender
by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health treatment,
counseling or other treatment programs approved for the offender
by the circuit court or magistrate;
(D) Attending an educational institution or a program approved for
the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a place of
worship;
(F) Participating in a community work release or community service
program approved for the offender by the circuit court, in circuit
court cases; or
(G) Engaging in other activities specifically approved for the
offender by the circuit court or magistrate.
Id. (emphasis added). Additionally, the statute provides for
[a] requirement that the offender abide by a schedule, prepared by
the probation officer in circuit court cases, or by the supervisor or
sheriff in magistrate court cases, specifically setting forth the times
when the offender may be absent from the offender’s home and the
locations the offender is allowed to be during the scheduled
absences.
Id. § 62-11B-5(3). Further, there is a “requirement that the offender obtain approval from the
probation officer or supervisor or sheriff before the offender changes residence or the schedule
described in subdivision (3) of this section.” Id. Finally, there are other express requirements set
forth in the statute that unequivocally are to be set forth in the “order for home incarceration.”
Here, not one of the statutory requirements is set forth in the order.
Home incarceration is designed to place substantial restrictions on the offender. See State
v. Long, 192 W. Va. 109, 111, 450 S.E.2d 806, 808 (1994). The statute requires these restrictions
to be set forth in an order. Severe consequences exist if the restrictions are violated – in this case
imposition of a term of incarceration of five to twenty-five years. The existence of a court order
5
that complies with the provisions of West Virginia Code section 62-11B-5 ensures that petitioner
fully knows and understands the conditions or requirements of home incarceration that the court
expects him to follow. See id. None of those requirements were reduced to a written order by
either the circuit court complying with the statute, or the probation officer preparing a “schedule”
that “specifically” sets forth “the times when the offender may be absent from the offender’s home
and the locations the offender is allowed to be during the scheduled absences.” Id.Instead, the home incarceration officer simply had petitioner text him to seek approval any
time he needed to go somewhere. This practice simply is not contemplated by the statutory
language of West Virginia Code § 61-11B-5(3) as it is not a schedule prepared by the probation
officer. This failure to comply with the statute created a whole set of problems – most notably
an imprecise and uncertain system which unequivocally led to petitioner’s technical violations.
For instance, petitioner’s home incarceration officer would sometimes take anywhere from several
hours to several days to respond to petitioner’s requests to travel (if he responded at all). In the
interim, petitioner (without authorization) stopped to get gas, stopped for food to eat while at work,
stopped at multiple locations to obtain money to pay his home incarceration fees, went to his
attorney’s office, and went to church. These unauthorized trips constituted the bulk of petitioner’s
violations and could have been avoided had a proper schedule been provided for him as required
by the statute. 4
Given that the unauthorized travel is almost entirely attributable to the circuit court’s
deficient order and the home incarceration officer’s failure to prepare a schedule for petitioner to
follow as required by statute, a closer examination of whether petitioner’s home incarceration was
properly revoked was warranted by setting this case for Rule 19 argument.
4
Petitioner had one additional violation for allowing his GPS monitor battery to die, but
that insignificant violation taken alone would be unlikely to warrant revocation of his home
confinement.
6