169 W. Va. 9

State Of West Virginia v. Dennis O. Ketchum

(No. 14301)

Decided June 23, 1981.

*10George M. Cooper, for plaintiff in error.

Chauncey H. Browning, Attorney General, Richard S. Glaser, Jr., Assistant Attorney General, for defendant in error.

Miller, Justice:

Dennis Ketchum appeals the revocation of his probation from the Circuit Court of Jackson County. He contends that the revocation was improper since it was based on criminal charges that were committed in Kan-awha County and dismissed by the prosecuting attorney of Kanawha County. A second claim is made that the trial judge was biased. We conclude that the appellant’s probation was properly revoked.

In April of 1976, the appellant pled guilty to the offense of possession of marijuana with intent to deliver and was sentenced to one to five years. The Circuit Court of Jackson County suspended the sentence and placed the appellant on probation for three years. On December 17, 1976, the appellant’s probation officer gave him notice that his probation would be revoked for several reasons including a claim that he had passed two bad checks in *11Kanawha County.1 A preliminary hearing was held and the magistrate determined that there was.probable cause to believe the appellant had violated his probation.

At the final revocation hearing, the State presented evidence from the business establishment where the appellant had passed the bad checks. This evidence was challenged on the fact that the prosecuting attorney of Kanawha County had entered an order of nolle prosequi to these two charges.2 The trial court, after considering all the testimony, found by a “clear and convincing preponderance of the evidence” that appellant had passed the two bad checks and thereby violated his probation. Appellant was then sentenced to one to five years.

Initially, we note that in Syllabus Point 1 of Sigman v. Whyte, 165 W. Va. 356, 268 S.E.2d 603 (1980), we recognized that “[a]n order revoking probation may be reviewed by a writ of habeas corpus. ...” Sigman also suggested that this was the preferable method rather than a direet appeal but recognized that other states had permitted a direct appeal of an order revoking probation. E.g., People v. Coleman, 13 Cal.3d 867, 533 P.2d 1024, 120 Cal. Rptr. 384 (1975); People v. Atencio, 186 Colo. 76, 525 P.2d 461 (1974); State v. Saavedra, 5 Conn. Cir. 367, 253 A.2d 677 (1968); Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975).

In State v. Shawyer, 154 W. Va. 522, 177 S.E.2d 25 (1970), we permitted a direct appeal of a probation revocation concluding that “the case does involve the defendant’s freedom. Article VIII, Section 3, of the Constitution of 'West Virginia and Code, 1931, 58-5-l(f) provide that this Court shall have appellate jurisdiction in cases ‘involving freedom.’ ” 154 W. Va. at 525-26, 177 S.E.2d at 25. A direct appeal was also entertained in State v. Fraley, 163 W. Va. *12542, 258 S.E.2d 129 (1979), and State v. Rose, 156 W. Va. 342, 192 S.E.2d 884 (1972). We conclude that a probation revocation may be reviewed either by a direct appeal or by a writ of habeas corpus.

The appellant’s chief argument is that the dismissal of the criminal charges in Kanawha County should operate to bar their use in his Jackson County probation revocation proceeding. In Sigman we addressed a related issue when we found that probation could be revoked based on the fact that the defendant had committed a criminal offense even though the trial on the criminal offense had not occurred.

The reason probation can be revoked without an underlying conviction is because a probation revocation proceeding does not involve a determination of the defendant’s guilt of the criminal offense committed while on probation. Rather it involves a factual determination that an offense has been committed which imparts the conclusion that the rehabilitative and other purposes behind probation have failed.3 Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Dobbs v. Wallace, 157 W. Va. 405, 201 S.E.2d 914, 917 (1974); State v. Robinson, 619 P.2d 813 (Mont. 1980); Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975). Because a determination of criminal guilt is not involved, the standard of proof in a probation revocation hearing is by a clear preponderance of the evidence and not proof beyond *13a reasonable doubt. E.g., Sigman v. Whyte, supra, and cases therein cited.4 Much the same reasoning is behind the rule that not all of the criminal procedural safeguards attend a probation revocation hearing. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Louk v. Haynes, 159 W. Va. 482, 223 S.E.2d 780 (1976); Hughes v. Gwinn, _ W. Va. -, S.E.2d _ (No. 15060, March 17, 1981).

In the present case, the fact that the criminal charges were dismissed in Kanawha County does not prevent the subsequent use of these charges in a probation revocation proceeding. We have held that a dismissal of criminal charges by a prosecutor prior to trial will not preclude a subsequent reindictment on the same charges. State v. Cunningham, 160 W. Va. 582, 236 S.E.2d 459 (1977); State v. Crawford, 83 W. Va. 556, 98 S.E. 615 (1919), see State v. Runyon, 100 W. Va. 647, 131 S.E. 466 (1926). Thus, in the context of a subsequent resurrection of the criminal charges the prior dismissal does not operate as a bar to a new trial.

This being true in a criminal trial context, there is even less reason to fashion a higher standard for probation revocation, when the latter has traditionally been accorded less procedural safeguards. Other courts examining this issue have arrived at the same conclusion that the dismissal of a criminal charge against a defendant for an offense committed while he is on probation does not preclude the subsequent use of such charge to revoke his *14probation. State v. Jameson, 112 Ariz. 315, 541 P.2d 912 (1975); People v. Turner, 118 Cal. Rptr. 924, 44 Cal. App.3d 753 (1975); Commonwealth v. Davis, 234 Pa. Super. 31, 336 A.2d 616 (1975); State v. Spratt, 386 A.2d 1094 (R.I. 1978).

The appellant’s second argument, that the trial court was biased and should have recused himself, fails because no objection was made on this ground at the revocation proceeding.5 We have historically held under our “plain error” doctrine that when no objection is initially made, in the trial court, we will not consider the error on appeal unless it is of a constitutional dimension or “it is necessary to prevent manifest injustice or clear prejudice to a party.” State v. Demastus, 165 W. Va. 572, 270 S.E.2d 649, 659 (1980); State v. Dozier, 163 W. Va. 192, 255 S.E.2d 552 (1979); cf. State v. Bush, 163 W. Va. 168, 255 S.E.2d 539 (1979); State v. Files, 125 W. Va. 243, 24 S.E.2d 233 (1943); State v. Richmond, 124 W. Va. 777, 22 S.E.2d 537 (1942). No such assertions are made in connection with this point and we, therefore, decline to address it.

For different reasons we decline to address appellant’s contention that his probation was revoked because he moved his place of residence without first notifying his probation officer. This was one of the grounds charged in the original notice but the trial court at the revocation proceeding did not appear to give much consideration to this technical violation.6 The fact remains another and *15more serious charge was shown which was the Kanawha County criminal offense. Courts have generally held that where probation is revoked on one valid charge, the fact that other charges may be invalid will not result in reversing the revocation. State v. Jameson, 112 Ariz. 315, 541 P.2d 912 (1975); Gorden v. State, 601 S.W.2d 598 (Ark. 1980); State v. Philips, 556 P.2d 1054 (Okla. 1976); Moore v. State, 605 S.W.2d 924 (Tex. Cr. App. 1980); State v. Clark, 197 Neb. 42, 246 N.W.2d 657 (1976).

We conclude that there was no reversible error on the part of the trial court and consequently affirm its judgment.

Affirmed.

State v. Ketchum
169 W. Va. 9

Case Details

Name
State v. Ketchum
Decision Date
Jun 23, 1981
Citations

169 W. Va. 9

Jurisdiction
West Virginia

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