State v. Arbaugh

¶1concurring, joined by

¶2(Filed March 5, 2004)

¶3I concur in the result reached by the majority but disassociate myself from the majority opinion insofar as it has been construed by the dissent filed in the ease to justify treating the rule-making power of this Court as capable of altering the punishments imposed by legislative enactment for crimes, *145or capable of impermissibly changing the statutorily mandated conditions under which courts may lawfully grant probation. Davis, J. dissent at 138, 595 S.E.2d at 295. I especially disassociate myself from any effort that may be gleaned from the majority opinion to, in the words of the dissent, “placet] itself above the law and ‘break[ ] down one of the necessary conditions of a decent society’ by reading its personal desires into the law.” Davis, J., dissent at 134, 595 S.E.2d at 301.

¶4The Grounds for Concurrence in the Result

¶5I concur in the result reached by the majority because:

¶61. Pursuant to West Virginia Code § 62-12-10, a judge, having determined that one or more conditions of probation have been violated, “may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed, and order that sentence be executed.... If, despite a violation of the conditions of probation, the court or judge shall be of the opinion that the interests of justice do not require that the probationer serve his sentence, the court or judge may, except when the violation [of probation] was the commission of a felony, again release him on probation.” (Emphasis added.)

¶72. Nothing in our law requires the revocation of probation and imposition of sentence after the Court learns of one or more probation violations.

¶83. The circumstances of this case require that, if probation was to be actually revoked for the multiple probation violations appearing from the record, the only sentence available to the court upon revocation was fifteen to thirty-five years in prison.

¶94. The defendant was subjected to sexual abuse by family members and at least one teacher, the abuse dating from the age of reason, that is from age seven or eight. As a direct result of these attacks, the defendant, at or about age fourteen, “acted out,” committing against his younger half-brother the same types of sexual crimes of which he himself had been a victim in prior years.

¶105. At age fifteen the defendant was charged with delinquency as a result of this conduct and forthwith transferred to the adult jurisdiction, thus requiring that the defendant be treated as an adult and not afforded treatment as a juvenile.

¶116. It appears that, by reason of the seriousness of the crime involved, the transfer to adult jurisdiction was mandatory under West Virginia Code § 49-5-10, the applicable juvenile justice statute. Thus the statute, at that point, required adult criminal prosecution for his conduct and, as punishment, potential imprisonment for fifteen to thirty-five years, rather than treatment as juvenile.

¶127. As horrible as defendant’s underlying crimes might have been, especially in terms of their impact on the half-brother victim and defendant’s relationship with other well-behaved members of his family, a possible thirty-five-year term of imprisonment at defendant’s age and in these circumstances cries out for close scrutiny under every principle of justice.

¶138. The record before us does not disclose that anyone — the State or any private party — has fully diagnosed the impact of and remedies necessary to guide this defendant from the nightmare of childhood sexual abuse, through his own disgusting, but youthful, criminal conduct, past all the anger and frustration generated in him by these events, to the point where the defendant overcomes his own apparently stubborn reluctance to fully cooperate in his recovery. I am satisfied that another effort, short of prison, is more likely to gain the defendant’s adherence to society’s norms of behavior than is thirty-five years in prison.

¶149. The record does demonstrate that the trial court attempted at least three available alternatives and that the defendant, to some substantial degree, succeeded in improving his conduct for varying periods of time in some structured situations.

¶1510. The probation violations upon which the execution of this fifteen to thirty-five year sentence was predicated may be summarized as: (1) alcohol and marijuana abuse, (2) lack of anger control, (3) lack of respect for authority, (4) failure to take advantage of *146all counseling opportunities and (5) failure to observe the administrative rules for probation.

¶1611. Under the provisions of West Virginia Code § 62-12-9, a court may modify the conditions of probation at any time, including requiring intermittent or continuous confinement in jail for up six months.

¶1712. Under the painful circumstances of this case, I believe the trial court should have used the defendant’s application for a reduction of sentence to further explore every available alternative to requiring the continued execution of the fifteen to thirty-five year sentence applicable to this case.

¶1813. The trial court originally granted probation for a five-year term running from September 12, 2000, to September 11, 2005; hopefully, time remains to successfully turn this young man around without more prison time.

¶1914. In addition to possibly requiring some jail time, continuous or intermittent, the court has at its disposal an opportunity to enroll the defendant in the program offered by Youth Systems Services, predicated on the articulated belief that the defendant “can be saved and can be brought around to a pro-social life.”

¶2015. The operative decision of a majority of this Court to reverse and remand “with directions” means simply that the lower court should, at this time, reverse its decision to revoke the defendant’s probation and consider and adopt, before the term of probation expires, alternative means of attempting to secure the defendant’s adherence to the norms of society, including further consideration of the Youth Systems Services option, additional jail time and any other community-based alternative, leaving always the option, if these efforts fail, of requiring the execution of the long sentence of incarceration required by the defendant’s conviction.

¶21It is easy to fathom the total frustration the trial court might well have felt in once again considering the defendant’s recalcitrant behavior — given the many opportunities for rehabilitation previously extended to the defendant and lost by his erratic conduct. Notwithstanding that quite understandable frustration, the defendant’s age and the miserable circumstances of his past life combine to strongly suggest that “a possible thirty-five year term of imprisonment ... cries out for close scrutiny under every principle of justice.”

¶22The Grounds Stated in Dissent

¶23Those who dissent from this decision suggest that it is necessary to construct a confrontation between legislative intent in the Youthful Offender Act, West Virginia Code § 25-4-1, et seq., and the constitutional rule-making power of this Court. The dissent first grounds its claim on syllabus point 4 of State v. Richards, 206 W.Va. 573, 526 S.E.2d 539 (1999), and State v. Patterson, 170 W.Va. 721, 296 S.E.2d 684 (1982), asserting that this Court has previously determined that if probation is revoked after enrollment in the youthful offender program, the trial court has no option other than to require execution of the sentence applicable to the crime for which probation was granted. Such an assertion gives the cited eases an inappropriately rigid reading. In Richards, the trial court had imposed a harsher sentence after the revocation of sentence than it had imposed beforehand. Although syllabus point four of Richardsdoes not expressly capture the controlling factual circumstances of the case, Richards, read in context, simply prohibits the execution of a harsher sentence after revocation of probation than any sentence earlier imposed but suspended incident to the grant of probation. Pattersonis even less persuasive. In that case, the defendant speciously claimed that he was unaware that he might be sentenced to prison if he violated probation. In the Pattersonopinion, Justice Harshbarger disposed of that claim based upon the clear evidence in the case that the defendant had been fully advised of the harshest consequences of violating probation. Neither of the cases cited in the dissent truly assist the Court on the facts of this case.

¶24The next assertion in the dissent is that by utilizing Rule 35 of the West Virginia Rules of Criminal Procedure to effect a further term of probation for the defendant the majority undertakes to unconstitutionally alter the substantive law enacted by the Legislature specifying penalties for crimes by an *147improper utilization of the rule-making power vested by the Constitution in this Court to alter the “substantive” law of the State. There follows a long discussion of the distinction between substantive and procedural law, which proves ultimately unrewarding and largely irrelevant.

¶25Stripped to the bone, the dissent argues that once probation is revoked and a sentence ordered executed, the trial courts are without jurisdiction to later grant probation, and that any attempt to utilize Rule 35 of the West Virginia Rules of Criminal Procedure to effect such a result unconstitutionally infringes on the prerogative of the Legislature to define the penalties attached to conviction of particular crimes because such action amounts to an attempted amendment of substantive law. Tying this argument to the Youthful Offender Act by reliance on Richardsand Patterson, discussed above, does not cure the fatal defects in the argument which are readily apparent for the reasons next discussed.

¶26West Virginia Code § 62-12-3 expressly limits the authority of the trial courts to suspend execution of a sentence and place a defendant on probation to a period ending no more than sixty days after a defendant has actually been imprisoned. On the other hand, Rule 35(b) expressly defines a “reduction of sentence” to include “[ejhanging a sentence from a sentence of incarceration to a grant of probation” and provides further that:

A motion to reduce a sentence may be made, or the court may reduce a sentence without motion within 120 days after the sentence is imposed or probation is revoked, or within 120 days after the entry of a mandate by the supreme court of appeals upon the affirmance of a judgment of a conviction or probation revocation or the entry of an order by the supreme court of appeals dismissing or rejecting a petition for appeal of a judgment of a conviction or probation revocation. The court shall determine the motion within a reasonable time....

¶27Rule 35(b), W.Va. R.Crim. P. (emphasis added).

¶28First, it is readily apparent that West Virginia Code § 62-12-3, allowing a legislatively determined sixty-day period after imprisonment for reconsideration of a sentence, West Virginia Code § 62-12-10, expressly allowing release on probation even after prior probation violations have been declared by the trial court, and Rule 35, expressly treating a change of sentence from incarceration to probation as a “reduction of sentence,” combine to equip the trial courts, inter alia, with the discretion to set aside an earlier revocation of probation, suspend further execution of the sentence of incarceration, and re-institute a term of probation. There is nothing in the Youthful Offender Act that suggests any legislative intent whatever to deprive the trial courts of that discretion in eases where that sentencing alternative has been utilized. Moreover, nothing in our case law — including Richardsand Patterson— requires such an awkward result.

¶29Second, if this Court’s treatment of Rule 35 in this case constitutes a constitutionally impermissible intrusion into the Legislature’s sentencing powers, then the provisions of Rule 35, allowing reconsideration of sentencing decisions within a variety of one-hundred-twenty-day time limitations — clearly in excess of the sixty day limitations found in West Virginia Code § 62-12-3— have been in violation of the constitution since first adopted February 1, 1985, nearly twenty years ago.

¶30Either the dissent is dead wrong in its assertion that the application of Rule 35 in this ease undertakes a constitutionally impermissible intrusion upon the Legislature’s power to define punishments for crimes, or the usage of Rule 35 at any time more than sixty days following actual imprisonment, as provided for in West Virginia Code § 62-12-3, is likewise constitutionally impermissible. I am utterly unable to agree with such a result. Especially in light of the long and stable history of Rule 35 in our jurisprudence, the rule is, in my view, a wholly proper exercise of this Court’s constitutional power to “promulgate rules for all eases and proceedings, civil and criminal, ... relating to writs, warrants, process, practice and procedure, which shall have the force and effect *148of law.” W. Va. Const, art VIII, § 3. Rule 35 is broad enough in its thrust and intent to permit the trial court in this ease to reconsider, within the court’s range of discretion, not only the sentencing options in the case, but the underlying decision of whether revocation of probation was appropriate under all of the circumstances, or whether, in the alternative, some change in the prior conditions or term of probation would better serve the public interest. The dissent has manufactured a needless constitutional confrontation, all utterly unnecessary in the circumstances.

¶31Above the Law

¶32The justices who dissent from this Court’s decision perceive that the majority opinion seeks to “placet] itself above the law and ‘break[ ] down one of the necessary conditions of a decent society’ by reading its personal views into the law.” Davis, J., dissent at 144, 595 S.E.2d at 301. I cannot fathom why the dissenters would choose such a personal and cutting means of expressing their disapproval of the majority opinion. Likewise, I am struck by the much more extensive recital of the defendant’s alleged misdeeds while on probation, which appears with devastating effect in the dissenting opinion, compared to the considerably less emotional recital of those misdeeds appearing in the majority opinion. Suffice it to say that regardless of which version of the facts one reads, the case still boils down to the fact that defendant was sentenced to fifteen to thirty-five years for alcohol and drug use, mixed with some pretty nasty rejection of authority. I do not believe that the recital of the facts contained in either the majority or dissenting opinions demonstrates that incarceration for up to thirty-five years is preferable to another effort to bring the defendant “around to a pro-social life.”1

¶33“Abuse of discretion,” as a term of art, has a harsh ring. As noted, the frustration of the trial judge in his dealings with the defendant is entirely understandable. In my view, the abuse of discretion in this case does not proceed fundamentally from any defect in those efforts. However, contrary to those who dissent, I believe the revocation of probation and execution of sentence constituted an abuse of discretion in all of the circumstances surrounding this case. The ruling here appealed proceeds not from the trial judge’s understandable frustration, but from the fact that our law required this case to be treated from its inception as an adult crime. In light of the life experiences of this defendant, that treatment led, more or less inexorably, to a decision to incarcerate this defendant for up to thirty-five years under statutory provisions that, on their face, do not fully accommodate the reality that the underlying crimes in this case were committed by a person barely fourteen years of age who is considered unlikely to re-offend, a person who has been a victim himself of equally or perhaps worse crimes, a person who has demonstrated some ability to improve in a structured situation, albeit not completely, a person whose probation was revoked for violations of probation much less serious than the underlying crimes. Finally, I am mindful of the potential for this young defendant, who was initially sexually victimized at such a tender age, to again be sexually victimized if it is necessary to continue his incarceration. Our law provides at least one more opportunity for the defendant to rehabilitate himself. Again, the ease “cries out for close scrutiny under every principle of justice.” Bypassing that probably last opportunity would clearly be a miscarriage of justice. As Justice Starcher has remarked in pondering this case:

A decent society is where a child who has been sexually victimized for years, and who becomes seriously disordered — but who does work in structured situations to improve — gets our help, not a thirty-five year prison sentence.

¶34As the author of this concurring opinion, I am authorized to say that Justice Starcher and Justice McGraw join in this opinion.

¶36concurring, in part, and dissenting, in part.

¶37(Filed March 31, 2004)

¶38I concur in the extraordinarily well-reasoned, compassionate, and legally sound separate opinion by Justice Albright. I write separately to shed some further light on the bipolar opinion of the Court in this ease — an eleven-page per curiam opinion with its twenty-page dissent.

¶39I write to express my amazement and displeasure with the personal attacks that the author of the dissent has made upon the articulation of the facts and law and the conclusions in the per curiam opinion.

¶40For a random sample of these remarks from the dissent, consider:

... the majority eviscerates the law to effectuate its own personal view of a proper outcome in this ease....

.... the majority usurps the legislature’s power ....

.... the majority has arrogated to itself the substantive power to define .... The majority would do well to remember that ... power is the “very definition of tyranny.”

-the majority’s facts are, as far as they go, accurate.

¶41(Emphasis added.)

-the surest way to convey misinformation is to tell the strict truth.

.... I turn to the flaws in the majority’s application of [the rule].

D. The majority opinion places itself above the law and “breaks down one of the necessary conditions of a decent society” by reading its personal desires into the law.

¶42(Bold italics in original.)

.... the majority has bent, stretched, ignored and distorted law and facts .... .... The Majority’s Opinion Is A “Wolf In Sheep’s Clothing,” For [Its] Rationale Is No More Than ... [Its Own] Subjective Judgment ....

¶43(Brackets and italics in original.)

.... the majority substitutes its own judgment for that of the circuit court The majority reneges on our commitment ....

I continue to believe that “[i]f we destroy the law’s integrity in the pursuit of' some goal, however worthy, we break down the necessary conditions of a decent society.”

¶44Incredible.

¶45While I agree with the result of the per curiam opinion, I am not happy with the gratuitous license that the author of the dissent took in the twenty-page dissent that was filed on the heels of the per curiam opinion to ridicule and belittle the legal analysis in the per curiam opinion. Using twisted logic, the dissent erroneously casts the per curiam opinion as appearing to attempt to wreck our State’s jurisprudence, not fully disclosing all of the facts, misapplying fairly simple law, and singling out an outstanding trial judge for a spanking. None of this is true, and the author of the dissent knows that no justice of this Court would consider even drafting such an opinion — even if that justice personally disagreed with the ultimate result.

¶46During oral argument of this case, in subsequent discussions, and prior to any opinion being written (or at least being circulated), there was a search by this Court for some way within the bounds of existing law to prevent a less-than-twenty-year-old person from facing an up-to-thirty-five-year sentence — for behavior that last occurred prior to his fifteenth birthday, and for more recent misbehavior, consisting of not complying with conditions of probation: smoking marijuana, drinking alcohol, not attending counseling sessions, not accepting authority, etc.

¶47The fact is that a maximum penal sentence was ultimately imposed as a result of, solely the latter activities.

¶48To me, a decent society is where a child who has been sexually victimized for years, and who becomes seriously disordered — but who does work in structured situations to improve — gets our help, and not a thirty-five-year prison sentence.1

¶49In writing separate opinions, I have personally tried to avoid making what I consider *150to be the most glaring errors of the dissent in the instant ease — that is, including in an opinion harsh, apocalyptic, hyperbolic, and personal attacks on the integrity and motivations of other members of this Court. I will adhere to that principle in this opinion. I wish that the dissenters had done the same.

¶50It is noted that I joined in the other separate opinion that has been filed in this case. Herein I fully subscribe to the remarks contained in that opinion.

¶51Therefore, for the reasons stated, I concur in the result of the majority opinion, but I dissent and dissociate myself from the rationale of the reasoning subscribed to by its author. I cannot say that any other justice joins me in my separately stated views of this bipolar opinion; however, I am satisfied that if Judge Marmaduke Dent (West Virginia Supreme Court 1893-1904) were on this Court today, he would share my views and join with me in this writing.2

¶54dissenting.

¶55(Filed April 7, 2004)

¶56The last thing this case needs is another separate opinion. Nevertheless, I now write separately, in spite of the fact I joined Justice Davis’s dissent, because I am deeply concerned that the several opinions extant in this case, the majority and two concurrences, might cause confusion about the law to be applied regarding probation grants following sentencing under the Youthful Offender Act, W.Va.Code § 25-4-6 (2001 Repl.Vol.). In the interest of brevity and judicial economy, I have decided to respond only to the first concurring opinion that was filed-the one that actually reaches the merits of the case.

¶57The first concurring opinion cites the general probation statute, W. Va.Code §§ 62-12-1 to -24 (2000 Repl.Vol.), to support its analysis. However, I believe the probation at issue in this case is controlled by the Youthful Offender Act. While the general probation statute and the Youthful Offender Act both deal with probation and can be read together, State v. Richards, 206 W.Va. 573, 575 n. 4, 526 S.E.2d 539, 541 n. 4 (1999) (citing State v. Reel, 152 W.Va. 646, 651, 165 S.E.2d 813, 816 (1969)), “ ‘the two statutory schemes do not coincide in all areas and are, no doubt, the embodiment of separate legislative purposes.’ ” Id.,526 S.E.2d at 541 n. 4 (quoting State v. Martin, 196 W.Va. 376, 380 n. 3, 472 S.E.2d 822, 826 n. 4 (1996) (per curiam)). We have therefore observed that “if there were some discrepancy between the two statutes, § 25-4-6 is the more specific and thus controlling law on this subject.” Id., 526 S.E.2d at 541 n. 4.1 Because the general probation statute does not contain the same bar to re-awarding probation after revocation as does § 25-4-6 of the Youthful Offender Act, the Youthful Offender Act is the controlling statute in this case and the outcome in this case should be controlled by Syllabus point 4 of State v. Richards, 206 W.Va. 573, 526 S.E.2d 539 (1999), the sole Syllabus of State v. Patterson, 170 W.Va. 721, 296 S.E.2d 684 (1982), and the sole Syllabus of State v. Martin, 196 W.Va. 376, 472 S.E.2d 822 (1996) *151(per curiam). Thus, I do not find the concurring opinion’s reliance on the general probation statute to be the correct analysis. Further, I think the approach outlined herein is the analysis and method currently used and understood by circuit judges in West Virginia in Youthful Offender sentencing situations. Based upon these considerations, I respectfully dissent.

¶58Having dissented to the law, I now write to state a policy concern of mine regarding this case and others similarly situated. I believe that sentencing, and especially whether to grant probation or not, is usually best left to trial judges. This is so for several reasons. Chief among them is the fact that the trial judge sees the defendant in person, interacts with him or her, can see the defendant’s demeanor and attitude, and observes a hundred other subtle factors which enable the trial judge to determine the defendant’s remorse or lack thereof. Since this Court never sees the defendant, we cannot make the same crucial observations. Therefore, absent some truly horrible mistake, I would leave criminal sentencing and probation decisions to the sound discretion of our very wise trial judges.