STATE of West Virginia, Plaintiff below, Appellee, v. Tony Dean ARBAUGH, Jr., Defendant below, Appellant.
No. 31326.
Supreme Court of Appeals of West Virginia.
Submitted Feb. 10, 2004. Decided March 2, 2004. Concurring Opinion of Justice Albright March 5, 2004. Concurring and Dissenting Opinion by Justice Starcher March 31, 2004. Dissenting Opinion by Chief Justice Maynard April 7, 2004.
595 S.E.2d 289
Davis, J., dissented and filed opinion, in which Maynard, C.J., joined. Albright, J., concurred and filed opinion, in which Starcher and McGraw, JJ., joined. Starcher, J., concurred in part, dissented in part, and filed opinion. Maynard, C.J., dissented and filed opinion.
Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, Counsel for Appellee.
Chief Justice MAYNARD and Justice DAVIS dissent and reserve the right to file dissenting opinions.
Justice ALBRIGHT concurs and reserves the right to file a concurring opinion.
PER CURIAM.
Tony Dean Arbaugh, Jr. (hereinafter “Mr. Arbaugh“) appeals the denial of his
I.
FACTUAL AND PROCEDURAL HISTORY
The appellant in this case, Mr. Arbaugh, has led a long and painful life. He endured a long history of sexual assault at the hands of two of his adult male family members, begin-
On September 4, 1997, the court sentenced Mr. Arbaugh to an indeterminate term of fifteen to thirty-five years and restitution. The court, however, suspended sentence due to Mr. Arbaugh‘s age and his enrollment in the Chestnut Ridge Treatment Center. The court ordered that, once finished at Chestnut Ridge, Mr. Arbaugh was to reside in a secure juvenile facility. The court ordered sentence reevaluation when Mr. Arbaugh turned eighteen.
On August 20, 1998, the court placed Mr. Arbaugh in a group home run by Stepping Stones, Inc. Unfortunately, Mr. Arbaugh‘s behavior digressed while at Stepping Stones. Therefore, the State filed a motion to reconsider disposition. The circuit court transferred Mr. Arbaugh to the Eastern Regional Juvenile Facility.
After he turned eighteen, the circuit court transferred Mr. Arbaugh to the Anthony Center under the Youthful Offender Act,
After Mr. Arbaugh successfully completed the youthful offender program, the court placed him on five years probation. The probation terms required, inter alia, adherence to all the probation officer‘s rules and regulations, that he not violate any laws nor have any alcohol or drugs, and that he obtain counseling.
On December 11, 2000, the State petitioned to revoke probation. At the revocation hearing, Mr. Arbaugh admitted to having used marijuana and alcohol, failing to obtain on-going counseling, and failing to pay his five dollar a month probation fee. Based on these violations, and several other violations, the court revoked probation.
On February 1, 2001, Mr. Arbaugh timely filed a motion under
Mr. Flanagan explained that Mr. Arbaugh‘s YSS program would consist of removing him from the Eastern Panhandle to the Northern Panhandle so as to remove him from the influences that initially caused his conduct. Mr. Arbaugh would reside in community apartments coupled with a variety of skill development programs so as to prepare him for independent living. He would be employed as a janitor at a local Catholic high school, and would work under the supervision of Brother Dan O‘Riordian. Mr. Arbaugh would also be provided supportive services through the Marist Brothers and would have access to designated YSS staff “24/7” for crisis situations. YSS would provide the circuit court with any required reports. Notwithstanding the fact that Mr. Arbaugh had a rehabilitation program in place (that would not cost the State any money), the circuit court denied Mr. Arbaugh‘s Rule 35(b) motion explaining that Mr. Arbaugh had been provided everything that the Court was aware of before and the Court has showed him mercy before and is very sympathetic to his situation, but nonetheless feels that also the Court has an obligation to the public and because of that the Court is not going to—to grant his relief request.
It is from this order Mr. Arbaugh seeks appellate relief.
II.
STANDARD OF REVIEW
The standard of review in this case is found in syllabus point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996):
In reviewing the findings of fact and conclusions of law of a circuit court concerning an order on a motion made under Rule 35 of the West Virginia Rules of Criminal Procedure, we apply a three-pronged standard of review. We review the decision on the Rule 35 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.
III.
DISCUSSION
Mr. Arbaugh argues that the circuit court abused its discretion in failing to grant his Rule 35(b) motion to reduce his sentence to probation.5 The State counters that the Youthful Offender Act mandates that once an original probation is revoked then a circuit court is without jurisdiction to again grant probation and is obligated to execute the sentence. It alternatively argues that the circuit court did not abuse its discretion in granting probation given Mr. Arbaugh‘s past rehabilitation programs. We find that the circuit court abused its discretion.6
We first reject the proposition that the Youthful Offender Act,
Even assuming the State is correct in its reading of
The circuit court refused to grant Mr. Arbaugh probation because Mr. Arbaugh had been provided everything that the Court was aware of before and the Court has showed him mercy before and is very sympathetic to his situation, but nonetheless feels that also the Court has an obligation to the public and because of that the Court is not going to—to grant his relief request.
While we appreciate the circuit court‘s concerns, we cannot agree with them. There is no evidence in the record that Mr. Arbaugh was a sexual threat to anyone. None of his alleged probation violations indicated that he was a sexual threat to the community, and we cannot find under the facts of this case that simply based on his past acts that Mr. Arbaugh is a future threat. See State v. Sapps, 820 A.2d 477, 501 n. 82 (Del.Fam.Ct.2002) (citing Sue Righthand & Carlann Welch, Juveniles Who Have Sexually Offended: A Review of the Professional Literature 30-31 (U.S. Dep‘t of Justice, Office of Juvenile Justice and Delinquency Prevention 2001)) (“[S]uggesting that once a juvenile‘s sex offending has been officially recognized, subsequent detected sexual recidivism is relatively infrequent. Also, stating that some studies to date reflect that very few who commit sex offenses as juveniles go on to commit such offenses as young adults.“).
The most serious of his probation violations was the use of alcohol and marijuana. While we do not condone these acts, we cannot turn a blind eye to the heinous atrocities perpetrated upon Mr. Arbaugh. He suffered numerous sexual assaults committed against him while he was only seven or eight years old. These assaults continued over a period of at least six or seven years, and were committed by at least two relatives and a teacher. Although these assaults were known to his family, they did nothing to intervene on his behalf. We cannot ignore that Mr. Arbaugh was a juvenile who was himself the victim of prolonged and extensive sexual assault when he acted out against his step-brother. Finally, we cannot ignore that at least some of Mr. Arbaugh‘s assaults on his brother occurred when they were supposed to be in the custody of the Department of Health and Human Resources (hereinafter “DHHR“), although the two brothers had run away and DHHR was unaware of their whereabouts.
“We have stated that ‘the law treats juveniles differently than others. “From the earliest time infants were regarded as entitled to special protection from the State.“‘” State ex rel. Garden State Newspapers, Inc. v. Hoke, 205 W.Va. 611, 618, 520 S.E.2d 186,
We agree with the State that Mr. Arbaugh‘s rehabilitation has not been without its bumps, but “[g]iven [his] serious needs, the implicit expectation that he would respond instantly to treatment ... shows a lack of understanding or appreciation for either trauma or adolescent psychology.” United States v. Juvenile, 347 F.3d 778, 789 (9th Cir. 2003). Considering Mr. Arbaugh‘s tender age and extreme victimization, we cannot, we will not, surrender any opportunity to salvage his life and to turn him into a productive member of society. See id. at 778-89 (citation omitted) (“[T]he [Trial] Court ... failed to consider [the appellant‘s] own history of victimization[.]“) Indeed, as Justice Cleckley notes in his concurring opinion in State v. Head, 198 W.Va. 298, 306, 480 S.E.2d 507, 515 (1996) (Cleckley, J., concurring) (citation omitted), “I believe that the only way a circuit court can abuse his discretion on a Rule 35(b) motion is to commit a legal error, or that its ruling was marred by a fundamental defect which inherently results in a miscarriage of justice.” We can conceive of no greater miscarriage of justice than subjecting Mr. Arbaugh under the facts of this case to a term of imprisonment without affording him every opportunity to rehabilitate himself. “Compassion is still an element of the law. The quality of mercy should not be strained on the facts before us.” People v. Monday, 70 Mich.App. 518, 523, 245 N.W.2d 811, 814 (1976).
Given that Mr. Arbaugh‘s motion for probation was supported by a rehabilitation plan which has won national acclaim, we must conclude that the circuit court abused its discretion in not granting Mr. Arbaugh probation to follow this program. However, we also wish to note that given the circuit court‘s obvious concern with Mr. Arbaugh‘s marijuana use, that the YSS plan should be amended to specifically include a substance abuse counseling plan as well as a sexual offender counseling plan. Thus, we direct the circuit court to grant Mr. Arbaugh probation to follow the YSS rehabilitation plan. We further direct that the YSS plan should include specific provisions that Mr. Arbaugh undergo both sexual offender counseling and drug and alcohol abuse counseling.
IV.
CONCLUSION
The judgment of the Circuit Court of Pendleton County is reversed and remanded with directions.
Reversed and remanded with directions.
DAVIS, J., dissenting, joined by Chief Justice MAYNARD.
The majority finds that the circuit court abused its discretion in denying Mr. Arbaugh‘s Rule 35(b) motion for another probation period. To do so, the majority eviscerates the law to effectuate its own personal view of a proper outcome in this case. This is a dangerous precedent. I dissent because “[i]t is the unpopular or beleaguered individual—not the [individual] in power—who has the greatest stake in the integrity of the law.” Florida Dep‘t of Health & Rehab. Serv. v. Florida Nursing Home Ass‘n, 450 U.S. 147, 154, 101 S.Ct. 1032, 1036-37, 67 L.Ed.2d 132, 139 (1981) (per curiam) (footnotes omitted) (Stevens, J., concurring).
A. The Youthful Offender Act and Rule 35(b).
In this case, the State asserts that the Youthful Offender Act‘s probation section,
Where a criminal defendant has been placed on probation after successfully completing a program of rehabilitation under the Youthful Offenders Act, W. Va. Code §§ 25-4-1 to -12, and such probation is subsequently revoked, the circuit court has no discretion under W. Va. Code § 25-4-6 to impose anything other than the sentence that the defendant would have originally received had he or she not been committed to a youthful offender center and subsequently placed on probation.
Syl. pt. 4, State v. Richards, 206 W.Va. 573, 526 S.E.2d 539 (1999). Accord Syl., State v. Patterson, 170 W.Va. 721, 296 S.E.2d 684 (1982) (”
The majority finds that our constitutional rule making authority gives us the power to trump the Youthful Offender Act. Our Constitution does not bear such a reading.
This recognition leads to the conclusion that “a statute governing procedural matters in criminal cases which conflicts with a rule promulgated by the Supreme Court would be a legislative invasion of the court‘s rule-making powers. Conversely, in substantive matters, a statutory enactment of the legislative branch prevails over a conflicting Supreme Court rule.” People v. Hollis, 670 P.2d 441, 442 (Colo.Ct.App.1983) (citations omitted). See also In re Daniel H., 133 N.M. 630, 634, 68 P.3d 176, 180 (Ct.App.2003) (recognizing “the established notion that the separation of powers doctrine precludes the legislature from stepping into the judiciary‘s exclusive domain of prescribing the rules of judicial practice and procedure and similarly precludes the judiciary from overturning or contradicting a constitutional legislative declaration of substantive law.“) In other words,
[i]n order to ascertain whether there is an infringement on this Court‘s rulemaking authority, we must first determine whether the statute is substantive or procedural. If we find that the statute is ‘substantive and that it operates in an area of legitimate legislative concern,’ then we are precluded from finding it unconstitutional.
Caple v. Tuttle‘s Design-Build, Inc., 753 So.2d 49, 53 (Fla.2000).
“Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.”
State v. Templeton, 148 Wash.2d 193, 213, 59 P.3d 632, 642 (2002) (quoting State v. Smith, 84 Wash.2d 498, 501, 527 P.2d 674, 677 (1974)). See also Opinion of the Justices, 141 N.H. 562, 572, 688 A.2d 1006, 1012-13 (1997); State ex rel. Higginson v. United States (In re SRBA Case No. 39576), 128 Idaho 246, 255, 912 P.2d 614, 623 (1995); Haven Fed. Savings & Loan, Inc. v. Kirian, 579 So.2d 730, 732 (Fla.1991). An analysis of West Virginia law shows that statutes defining the conditions of probation are substantive and not procedural.
We have consistently held that “the substantive power to prescribe crimes and determine punishments is vested with the legislature[.]” State v. Gill, 187 W.Va. 136, 141, 416 S.E.2d 253, 258 (1992) (citations omitted). Because we recognize the legislature‘s power to define crimes and determine punishments, we have likewise held that “we consider the right to determine the conditions under which a sentence can be suspended and a person placed on probation to be a legislative prerogative. Probation is inextricably tied to the setting of punishment, which is the legislature‘s domain.” Spencer v. Whyte, 167 W.Va. 772, 775, 280 S.E.2d 591, 593 (1981), superseded by statute on other grounds as stated in State v. White, 188 W.Va. 534, 425 S.E.2d 210 (1992). Accord id., Syl. pt. 1 (“The right to probation was a legislative prerogative since courts did not possess the inherent power to grant probation.“); State ex rel. Atkinson v. Wilson, 175 W.Va. 352, 354, 332 S.E.2d 807, 809 (1984) (similar). See also State ex rel. Goff v. Merrifield, 191 W.Va. 473, 480, 446 S.E.2d 695, 702 (1994) (footnote omitted) (“[P]robation ... is a legislative prerogative“).
Clearly, the legislature‘s substantive constitutional power to define crimes and enact punishments includes the substantive power to determine the conditions under which probation will not be permitted—and this is exactly what the legislature did in
Through today‘s decision, the majority has arrogated to itself the substantive power to define under what conditions probation may be awarded, even if the awarding of such probation violates the plain language of a statute. The majority would do well to remember that “accumulation of power in the same departments, ... is the ‘very definition of tyranny[.]‘” In re Dailey, 195 W.Va. 330, 332, 465 S.E.2d 601, 603 (1995) (quoting The Federalist No. 47, at 329 (James Madison) (1917)).
B. The majority has ignored important facts.
I must also point out that even if Rule 35(b) controls this case, the majority has reached an insupportable conclusion under this Rule. I begin this issue by acknowledging that the majority‘s facts are, as far as they go, accurate. However, to paraphrase Mark Twain, “[o]ften, the surest way to convey misinformation is to tell the strict truth[.]” Quoted in United States v. Dean, 55 F.3d 640, 662 (D.C.Cir.1995).
Mr. Arbaugh not only repeatedly raped his younger half-brother from August 1, 1995,
Mr. Arbaugh‘s troubles did not end at Chestnut Ridge. On August 20, 1998, the court placed Mr. Arbaugh in a group home run by Stepping Stones, Inc. While starting out positively, he became “very non-compliant and overtly disobedient” around April and May of 1999. He sought money from other residents to buy “a supply of roaches,” a term the staff thought referred to marijuana. He became “extremely enraged” during a search of his room to locate possible contraband. He was verbally aggressive toward staff, and slammed his hand on a table several times. After an empty pack of cigarettes was discovered in his room, he was grounded for three days. He refused to obey the rules of this sanction. He also refused a drug and alcohol test, but admitted to frequent marijuana use. He resisted information about the negative consequences of such drug use, indicating that he saw nothing wrong with it. Mr. Arbaugh incited other residents to misbehave, and physically defaced Stepping Stones’ property. Stepping Stones admitted it could no longer handle him. Even in light of all of this, the circuit court yet again afforded Mr. Arbaugh an opportunity to avoid prison, by transferring him to Anthony Center.
After he successfully completed the youthful offender program, the court placed Mr. Arbaugh on five years probation in August 2000. The probation required him to, inter alia, adhere to all the probation officer‘s rules and regulations, abstain from alcohol and drugs, and obtain counseling at least once a month. On December 11, 2000, the State petitioned to revoke probation. At the revocation hearing, Mr. Arbaugh admitted to having used marijuana and alcohol, failing to obtain on-going counseling, and failing to pay his his probation fee. The circuit court also found that Mr. Arbaugh violated almost all the remaining probation requirements. The court only then revoked probation. Having now recited the factual backdrop, I turn to the flaws in the majority‘s application of Rule 35(b).
C. The circuit court did not abuse its discretion by declining Mr. Arbaugh another opportunity to participate in rehabilitation.
The majority properly cites syllabus point 1 of State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996), as governing this case and properly cites the abuse of discretion prong as being the controlling aspect for our decision. The majority then, however, completely ignores the limited nature of our review under an abuse of discretion standard. Abuse of discretion review does not allow us to “substitute our judgment for the circuit court‘s.” See State v. Taylor, 215 W.Va. 74, 83, 593 S.E.2d 645, 654 (2004) (citations omitted). More specifically “[s]ince the Rule 35 motion is directed to the sound discretion of the court, the denial of the motion is to be reviewed so as to determine whether the denial was an abuse of discretion. The appellate court cannot replace its judgment of the facts for that of the circuit court.” 5 Mark S. Rhodes, Criminal Procedure under the Federal Rules § 35:38 at 480 (1987) (footnote omitted).
Replacing its judgment for that of the circuit court, however, is exactly what the majority has done. As Justice Cleckley elaborated:
It is not our role to undermine the valid exercise of constrained discretionary authority by circuit courts, when they have imposed sentences that fall that fall [sic] legitimately within the four corners of our federal and state constitutions, applicable statutory provisions and our criminal procedure rules. Circuit court judges have a
right to believe that so long as they have not violated a law or acted in a nefariously discriminatory way in imposing sentences, this Court will not sift through the nooks and crannies of their decisions determined on finding that which is not there.
Head, 198 W.Va. at 306, 480 S.E.2d at 515.3
The majority correctly observes “that the only way a circuit court can abuse his discretion on a Rule 35(b) motion is to commit a legal error, or that its ruling was marred by a fundamental defect which inherently results in a miscarriage of justice.” Head, 198 W.Va. at 306, 480 S.E.2d at 515 (citation omitted). However, the majority then proceeds to distort the second arm of this test by concluding “[w]e can conceive of no greater miscarriage of justice than subjecting Mr. Arbaugh to a term of imprisonment without affording him every opportunity to rehabilitate himself.”
The miscarriage of justice language the majority invokes cannot be divorced from the language preceding it—that there must be a “fundamental defect which inherently results in a miscarriage of justice.” In other words, if there is a fundamental defect in the process which has resulted in a circuit court decision causing a miscarriage of justice, then we may intervene. The focus under an abuse of discretion review is not on the outcome, but on the process that led to the outcome. Levinger v. Mercy Med. Center, 139 Idaho 192, 196, 75 P.3d 1202, 1206 (2003); Schultz v. Darlington Mut. Ins. Co., 181 Wis.2d 646, 656, 511 N.W.2d 879, 883 (1994). The majority has failed to identify any fundamental defect in the process used by the circuit court because there simply was none.
Moreover, I disagree that a miscarriage of justice occurred. The majority finds that a miscarriage of justice occurred since Mr. Arbaugh lost his original probation due to “mi-
nor mistakes” that can be excused due to his age at the time of his crimes, the history of his own sexual abuse, and his fifteen to thirty-five year term of incarceration. None of these rationales are even remotely justifiable.
To begin, I disagree with the majority‘s decision to treat Mr. Arbaugh as a juvenile. His probation violations occurred when he was over eighteen. The fact that he was a juvenile when he committed his crimes is a “red-herring.” We have observed in the past that a “term of probation has no correlation to the underlying criminal sentence .... In effect, there is a probation sentence which operates independently of the criminal sentence.” Syl. pt. 1, in part, Jett v. Leverette, 162 W.Va. 140, 247 S.E.2d 469 (1978). Thus, the majority cannot relate probation violations back to the original offense to determine if the probation violations warrant revocation. Further, even if we could relate the probation violations back to his sexual offenses, Mr. Arbaugh never appealed his transfer to adult jurisdiction. By failing to appeal, he cannot now argue that his legal claims should be reviewed as if he were a juvenile when he committed his crimes. See State v. Russell, 791 P.2d 188, 190 (Utah 1990) (“The juvenile court certified defendant to stand trial as an adult. That certification was not challenged, and defendant must accept exposure to adult punishment.“); State v. Ross, 166 Ariz. 579, 582, 804 P.2d 112, 115 (Ct.App.1990) (similar).
Moreover, what Mr. Arbaugh characterizes as “minor mistakes” included violating almost every probation requirement within four months after receiving probation, including marijuana and alcohol use, the failure to obtain counseling, the failure to report to his probation officer or alert his probation officer that he had moved, and job abandonment. I also find Mr. Arbaugh‘s claim that his marijuana use is comparable to a first offense
Additionally, upon awarding probation, the circuit court made clear to Mr. Arbaugh that “we had problems before with controlled substances and ... the bottom line is that if you violate the terms of probation in any respect and particularly in regard to the use of controlled substances, you know what‘s going to happen.” The court asked Mr. Arbaugh, “You know what the sentence is that‘s already been imposed?” Mr. Arbaugh responded, “Fifteen to thirty-five, Your Honor.” After all the opportunities that the circuit court afforded Mr. Arbaugh, as well as the explicit admonishment that drug use meant probation revocation, the circuit court was well within its discretion in denying Mr. Arbaugh yet another opportunity to flout the court‘s authority.
In fact, we have previously upheld a Rule 35(b) denial in circumstances less compelling than those here. In State v. Redman, 213 W.Va. 175, 578 S.E.2d 369 (2003) (per curiam) we upheld Rule 35(b) probation denial by a defendant convicted of burglary and grand larceny who used drugs while on probation. We found that the circuit court did not abuse its discretion in denying the Rule 35(b) motion based upon the defendant‘s drug use as such use showed a disregard for the law. The circuit court‘s rationale which we affirmed in Redman (where only one probation term was violated, rather than the numerous violations occurring here) is practically identical to the rationale the circuit court applied below and which the majority reverses. Compare, maj. op. at 135, 595 S.E.2d at 292 (quoting circuit court‘s ruling below) with Redman, 213 W.Va. at 179, 578 S.E.2d at 373 (quoting circuit court‘s order) (“‘The Court finds that Mr. Redman has not learned his lesson from his earlier period of incarceration. He continues to break the law by using these illegal controlled substances. The Court further finds Mr. Redman is a detriment to society and that it is in the best interest of the public that he be kept out of society.’ “)
In this case, the majority minimizes the seriousness of Mr. Arbaugh‘s drug and alcohol use by saying that it was unrelated to his sexual crimes and did not create a risk of re-offending. This assertion is flawed on almost every level. First, it is legally wrong. The revocation of probation in a sex crimes case (or, as here, the failure to re-award probation after a revocation) because of drug and alcohol use is permissible—not because drug use necessarily indicates a relapse to sexual behavior—but because the drug use shows a disregard for the obligations of probation. See State v. Rogers, 239 Mont. 327, 779 P.2d 927, 929 (1989) (finding that no terms of probation are minor and that defendant who plead guilty to sexual offenses properly had his probation revoked for smoking marijuana and drinking alcohol). Cf. Collins v. State, 712 P.2d 368, 371-72 (Wyo.1986) (“The court made it clear at sentencing that its concerns were to educate appellant and to keep him away from alcohol and drugs. These were the very conditions appellant violated. Appellant argues that ‘individually the violations could be characterized as “nit-picky“‘. We do not agree, but, in any event, the violations taken together establish without question the fact that appellant was not serious about complying with the conditions of his probation.“)6
Finally, assuming it is appropriate to apply probation violations to the underlying crimes, several of Mr. Arbaugh‘s probation violations did indeed relate to his sex crimes. Mr. Arbaugh‘s probation required that he attend monthly counseling. Mr. Arbaugh attended one session and never returned. Another requirement prohibited him from violating any laws. As a convicted sexual offender, Mr. Arbaugh was subject to the West Virginia Sexual Offender Registration Act (“SORA“),
not find that the circuit court in anyway abused its discretion in denying Mr. Arbaugh yet another rehabilitation program.7 Rather than reversing, we should affirm the decision below with commendations to both the circuit court and the Prosecuting Attorney for their efforts to assist this young man by “provid[ing] everything the Court was aware of [.]” 8
Given my review of the record in this case, “I think that the circuit judge probably had a good handle on this situation.” State ex rel. Nelson v. Grimmett, 199 W.Va. 604, 608, 486 S.E.2d 588, 592 (1997) (Starcher, J., concurring). Mr. Arbaugh‘s behavior shows a recurring theme—at any point when Mr. Arbaugh was not under the strictest supervision, he was unable to handle his freedom and he resorted to unacceptable behaviors such as drinking, drug use, failing to attend counseling (all of which are related directly to his sexual crimes), and job abandonment. We are not doing Mr. Arbaugh any favors by reinforcing a belief that life has no consequences or that unacceptable actions can be excused based upon unfortunate circumstances. See Juvenile, 347 F.3d at 791 (Gould, J., dissenting in part) (“There is no question but that abuse of [the appellant] by others when he was a young child may have contributed to [his] becoming, in turn, a repeat abuser of younger children. The majority‘s approach to this is to give him a pass at an earlier age, but this approach ignores that [appellant‘s] predatory abuse of other children, if not restrained, can continue a cycle of abuse and corruption of youth.“)
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.
My greatest concern in this case, however, is not that the majority has bent, stretched, ignored and distorted law and facts to afford Mr. Arbaugh yet another opportunity to avoid prison (although my concern in this regard, both for Mr. Arbaugh and society, is not inconsequential). Rather, my greatest concern is that the majority opinion is “a ‘wolf in sheep‘s clothing,’ for [its] rationale is no more than ... [its own] subjective judicial judgment as to what ... offends notions of ‘fundamental fairness.‘” Williams v. Illinois, 399 U.S. 235, 259, 90 S.Ct. 2018, 2031, 26 L.Ed.2d 586, 603 (1970) (Harlan, J., concurring).
In this case, the majority substitutes its judgment for that of the circuit court to remedy what the majority personally views to be a “miscarriage of justice.” In the past, this Court has wisely refused the temptation to use its power as an anodyne to remedy that which we might have thought personally to be objectionable. See State v. Phillips, 205 W.Va. 673, 684, 520 S.E.2d 670, 681 (1999) (noting that we decide cases “not only upon the[] facts [of a given case], where our sympathies might well lie ..., but in a larger context.“); Hart v. NCAA, 209 W.Va. 543, 548, 550 S.E.2d 79, 84 (2001) (per curiam) (“When all factors have been weighed on the scales of justice, though, this Court remains constitutionally bound to follow the guiding precedents before us, to apply the law as it has been interpreted by our predecessors, and to reach the result prescribed thereby.“) “[T]here are many perfectly legitimate reasons for summary rejection of a Rule 35(b) motion, despite the presentation of an otherwise persuasive or sympathetic case by a defendant.” Head, 198 W.Va. at 305, 480 S.E.2d at 514 (Cleckley, J., concurring). In other words, that a defendant may present “““an affecting case for reconsideration of the sentence,““” is simply not a factor upon which we can rely to reverse a circuit court. Matthews v. United States, 629 A.2d 1185, 1199 n. 30 (D.C.1993) (quoting Walden v. United States, 366 A.2d 1075, 1077 (D.C.1976)) (quoting United States v. Krueger, 454 F.2d 1154, 1155 (9th Cir.1972)). The majority reneges on our commitment that “the judiciary of this state is dedicated to the principle that ours is a government of laws and not of men.” Committee on Legal Ethics v. Karl, 192 W.Va. 23, 34, 449 S.E.2d 277, 288 (1994) (citation omitted).
I continue to believe that “[i]f we destroy the law‘s integrity in the pursuit of some goal, however worthy, we break down one of the necessary conditions of a decent society.” Dunlap v. Friedman‘s, Inc., 213 W.Va. 394, 403 n. 4, 582 S.E.2d 841, 850 n. 4 (2003) (Davis, J., dissenting) (citation omitted). While I do not dispute the majority‘s sincerity that there was a miscarriage of justice in this case, such personal beliefs cannot be the criteria under Rule 35(b). “Our duty, to paraphrase Mr. Justice Holmes in a conversation with Judge Learned Hand, is not to do justice but to apply the law and hope that justice is done.” Bifulco v. United States, 447 U.S. 381, 401-02, 100 S.Ct. 2247, 2259-60, 65 L.Ed.2d 205, 220 (1980) (Burger, C.J., concurring).
Thus, I dissent. I am authorized to state that Chief Justice Maynard joins me in this dissenting opinion.
ALBRIGHT, J., concurring, joined by STARCHER, J. and MCGRAW, J.
(Filed March 5, 2004)
I 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 case to justify treating the rule-making power of this Court as capable of altering the punishments imposed by legislative enactment for crimes,
The Grounds for Concurrence in the Result
I concur in the result reached by the majority because:
1. Pursuant to
2. Nothing in our law requires the revocation of probation and imposition of sentence after the Court learns of one or more probation violations.
3. 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.
4. 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.
5. 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.
6. It appears that, by reason of the seriousness of the crime involved, the transfer to adult jurisdiction was mandatory under
7. 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.
8. 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.
9. 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.
10. 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
11. Under the provisions of
12. 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.
13. 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.
14. 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.”
15. 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.
It 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.”
The Grounds Stated in Dissent
Those who dissent from this decision suggest that it is necessary to construct a confrontation between legislative intent in the Youthful Offender Act,
The 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
Stripped 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 Richards and Patterson, discussed above, does not cure the fatal defects in the argument which are readily apparent for the reasons next discussed.
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....
First, it is readily apparent that
Second, 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
Either the dissent is dead wrong in its assertion that the application of Rule 35 in this case 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
Above the Law
The justices who dissent from this Court‘s decision perceive that the majority opinion seeks to “place[] 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
“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 case “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.
As the author of this concurring opinion, I am authorized to say that Justice Starcher and Justice McGraw join in this opinion.
(Filed March 31, 2004)
I 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 case—an eleven-page per curiam opinion with its twenty-page dissent.
I 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.
For 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 case....
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.
(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.
(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 ....
(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.”
Incredible.
While 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.
During 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.
The fact is that a maximum penal sentence was ultimately imposed as a result of, solely the latter activities.
To 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
In writing separate opinions, I have personally tried to avoid making what I consider
It 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.
Therefore, 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
MAYNARD, C.J., dissenting.
(Filed April 7, 2004)
The 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,
our prison system for up to the next thirty or more years, I refer you to recently expressed remarks by Chief Justice Elliot Maynard. In addressing the need for reducing our prison and jail population, he said “I intend, this year, to work very hard to establish a community corrections system statewide that will help with the rate of incarceration problems .... What it does mean is finding alternatives to just straight ‘lock them up, throw away the key and forget them.’ ” Kay Michael, “The Honorable Elliott E. Maynard 2004—Court Improvement,” The West Virginia Lawyer P. 20 (Jan.2004). I applaud this effort.
I have decided to respond only to the first concurring opinion that was filed—the one that actually reaches the merits of the case.
The first concurring opinion cites the general probation statute,
Having 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.
Notes
Because the grandparent act is specific legislation drafted and adopted for the express purpose of addressing the issue of visitation, its provisions must necessarily be viewed as controlling when a question arises regarding the application of another code provision with regard to the issue of grandparent visitation.
State ex rel. Brandon L. v. Moats, 209 W.Va. 752, 759, 551 S.E.2d 674, 681 (2001) (emphasis added). The concurring opinion makes no effort to show why the reasoning in Brandon L., applying the more specific statute, does not equally have force here where the Youthful Offender Act‘s probation provision is more specific than the general probation act upon which the concurrence relies.