IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
MICHAEL ALLEN PHARES,
Petitioner,
v.
Upon Original Jurisdiction
In Prohibition,
No. _________________
THE HONORABLE JOHN L HENNING
JUDGE OF THE CIRCUIT COURT OF
RANDOLPH COUNTY, WEST VIRGINIA
Respondent,
__________________________________________________
PETITION FOR WRIT OF PROHIBITION
___________________________________________________
MICHAEL ALLEN PHARES
By Counsel:
Dorwin J. Wolfe, (WV State Bar #5788)
Law Office of Dorwin J. Wolfe
200 Kerens Avenue
Elkins, West Virginia 26241
Telephone: (304) 637-5755
Facsimile: (304) 637-1001
TABLE OF CONTENTS
PETITION FOR WRIT OF PROHIBITION ............................................................................1
STATEMENT OF JURISDICTION .........................................................................................1
FACTUAL AND PROCEDURAL BACKGROUND ..............................................................4
ISSUE ........................................................................................................................................4
PRAYER FOR RELIEF ............................................................................................................9
TABLE OF AUTHORITIES
Cases
State ex rel. Lynn v. Eddy
152W.Va. 345, 163 S.E.2d 472 (1968) .......................................................................2
Norfolk & W. Ry. V. Pinnacle Coal Co.,
44 W. Va. 574, 576, 30 S.E. 196, 197 (1898) .............................................................2
State ex rel. Williams v. Narick,
164 W. Va. 632, 635, 264 S.E.2d 851, 854 (1980) .....................................................2
State ex rel. Hoover v. Berger,
199 W. Va. 12, 483 S.E. 2d 12 (1996) ........................................................................2
Woodall v. Laurita,
156 W.Va. 207, 195 S.E.2d 717 (1973) ......................................................................3
State v. Reel,
165 S.E.2d 813, 152 W.Va. 646 (1969).......................................................................5
Mangus v. McCarthy,
188 W. Va. 563, 425 S.E.2d 239 .................................................................................7
Statutes
West Virginia Code Chapter 53, Article 1, Section 1 (§ 53-1-1) ............................................1
West Virginia Code §62-12-11 ................................................................................................1
West Virginia Code §62-12-9, section (b)(1) ..........................................................................1
Rules and Regulations
Rule 14(a) of the West Virginia Rules of Appellate Procedure ..............................................1
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
MICHAEL ALLEN PHARES
Petitioner,
v.
Upon Original Jurisdiction
In Prohibition,
No. ____________________
THE HONORABLE JOHN L. HENNING
JUDGE OF THE CIRCUIT COURT OF
RANDOLPH COUNTY, WEST VIRGINIA
Respondent,
PETITION FOR WRIT OF PROHIBITION
Comes now the Petitioner, Michael Allen Phares, by and through his counsel, and
petitions this Honorable Court to award a Writ of Prohibition against the Respondent, The
Honorable John L. Henning in his official capacity as Judge of the Circuit Court of Randolph
County, West Virginia.
STATEMENT OF JURISDICTION
1.
This Petition for Writ of Prohibition is filed pursuant to Article VIII (8), Section
Three (3) of the West Virginia Constitution, granting the Supreme Court of Appeals original
jurisdiction in prohibition, and pursuant to West Virginia Code Chapter 53, Article 1, Section 1 (§
53-1-1). In addition, this Petition is filed with this Honorable Court pursuant to Rule 14(a) of the
West Virginia Rules of Appellate Procedure.
2.
“The writ of prohibition lies as a matter of right in all cases of usurpation and
abuse of power when the court does not have jurisdiction of the subject matter in controversy, or
having such jurisdiction, exceeds it legitimate powers.” State ex el. Lynn v. Eddy, 152 W. Va.
345, 163 S.E.2d 472 (1968); West Virginia Code Chapter 53, Article 1 (§53-1-1).
3.
“The writ is no longer a matter of sound discretion, but a matter of right; it lies in
all proper cases whether there is other remedy or not.” Norfolk & W. Ry. V. Pinnacle Coal Co.,
44 W. Va. 574, 576, 30 S.E. 196, 197 (1898).
4.
“Traditionally, the Writ of Prohibition speaks purely to jurisdictional matters.”
State ex rel. Williams v. Narick, 164 W. Va. 632, 635, 264 S.E.2d 851, 854 (1980).
5.
“In determining whether to entertain and issue the writ of prohibition for cases not
involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ
has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether
the lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tribunal’s
order is an oft repeated error or manifests persistent disregard for either procedural or substantive
law; and (5) whether the lower tribunal’s order raises new and important problems or issues of
law of first impression. These factors are general guidelines that serve as a useful starting point
for determining whether a discretionary writ of prohibition should issue. Although all five
factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter
of law, should be given substantial weight.” Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va.
12, 483 S.E.2d 12 (1996).
6.
“Where prohibition is sought to restrain a trial court from abuse of its legitimate
powers, rather than its jurisdiction, the appellate court should review each case on its own
particular facts to determine whether a remedy by appeal is both available and adequate, ...,” Syl.
pt. 2, Woodall v. Laurita, 156 W. Va. 207, 195 S.E.2d 717 (1973).
7.
Pursuant to the original jurisdiction of this Court, Michael Allen Phares, seeks
relief in the form of a Writ of Prohibition as the Circuit Court has abused its legitimate powers by
extending the petitioner’s probation beyond the statutory maximum of five years and seeking to
revoke his unlawful probation for violations filed after the expiration of his probationary period.
8.
relief:
A Writ of Prohibition is appropriate and the only means to obtain the desired
a) the petitioner will be damaged and prejudiced in that he is under unlawful
probation which the state seeks to revoke and place him in the penitentiary;
b) the lower tribunal’s order is clearly erroneous as a matter of law;
c) often trial courts in West Virginia extend probation without proper notice and
sometimes extend probation beyond five years illegally, and further set restitution and violate a
parties restitution without the due process right of a hearing.
d) that the lower tribunals actions are a complete disregard for the substantive law
and procedural law.
PARTIES
1.
The Petitioner, Michael Allen Phares, is a defendant in a criminal action who pled and
was ultimately placed on five years probation from the Circuit Court of Randolph County, West
Virginia in Case No. 01-F-80, State of West Virginia v. Michael Allen Phares.
2.
The Respondent, The Honorable John L. Henning is a Judge of the (20th) Judicial Circuit
of Randolph County, West Virginia. Judge Henning, is the Circuit Judge who issued the subject
order of December 19, 2008.
FACTUAL AND PROCEDURAL BACKGROUND
Michael Allen Phares, Petitioner, was sentenced on the 11 th day of March 2002, for three
felony counts of fraudulent use of credit card (Exhibit A). On January 11, 2003, he was placed on
five (5) years probation by the Circuit Court of Randolph County, (Exhibit B). Mr. Phares
probation of five years was completed on January 11, 2008. Restitution was set in the amount of
three hundred fifty dollars ($350.00) per month, without the benefit of a hearing. On January 16,
2008, Charles C. Scott, Chief Probation Officer, filed with the Circuit Court of Randolph County
a recommendation that probation be extended for failure to make full restitution. (Exhibit C). On
February 11, 2008, the Circuit Court of Randolph County found the defendant in violation of
probation and continued the defendant under Court supervision. (Exhibit D). On December 1,
2008, counsel for Mr. Phares filed a “Motion to Release the Defendant, Michael Allen Phares,
from Probation” (Exhibit E). A hearing was held on December 8, 2008, whereby the Honorable
John L. Henning denied the Defendant’s Motion by Order of December 19, 2008.(Exhibit F). A
Hearing has been scheduled for January 21, 2009, to violate the Defendant’s probation whereas
the State has indicate that they are seeking to place the defendant in the Penitentiary for the
remainder of his sentence for failure to make full restitution.(Exhibit G).
STATEMENT OF ISSUES
1. Whether the Circuit Court of Randolph County has jurisdiction to extend a
defendant’s probation beyond five years, where the defendant had completed five years of
probation and no violations were filed until after his term of five years of probation was
completed?
2. Whether the Circuit Court of Randolph County has jurisdiction to entertain revocation
issues where the probationer was not notified during his probationary term of a violation of
probation and no revocation was initiated for that violation until after the expiration of
probationary period?
3. Whether the Circuit Court has the authority to set restitution without having a hearing
on the record to determine if the offender is able to pay restitution without undue hardship?
I. The Circuit Court of Randolph County lacks jurisdiction to extend Mr. Phares
probation beyond five years, where he had completed five years of probation and no violation
was filed until after his term of five years of probation was completed..
West Virginia Code §62-12-11 clearly states “The period of probation together with any
extension thereof shall not exceed five years.
§ 62-12-11. Probation period
The period of probation together with any extension thereof shall not exceed five years.
Upon the termination of the probation period, the probation officer shall report to the court the
conduct of the probationer during the period of his probation, and the court may thereupon
discharge the probationer or extend the probation period. Whenever, before the end of the
probation period the probationer has satisfactorily complied with all the conditions of this
probation and it appears to the court that it is no longer necessary to continue his supervision, the
court may discharge him. All orders extending the probation period and all orders of discharge
shall be entered in the records of the court, and a copy of all such orders shall be sent by the clerk
of the court to the board within five days after the making of the order.
Mr. Phares was placed on probation on January 11, 2003, for a period of five years. The
period of probation would have been completed on January 11, 2008. A Circuit Judge lacks
jurisdiction to extend probation beyond five years and after five years cannot revoke said
probation. This Honorable Court has addressed this issue prior in State v. Reel 165 S.E.2d 813,
153 W.Va. 646 (1969), in its language:
“Although statute pertaining to granting of probation to male offenders who are 16 but
less than 21 years old places no time limit upon period of probation which may be granted,
statute must be read in conjunction with general probation statute providing that period together
with any extension thereof shall not exceed five years, so that after a period of probation has
continued for more than five years, court which granted such probation cannot after that period
of time revoke such probation or impose any sentence upon offender.”
The hearing of December 8, 2008, was held without the benefit of record and the only
argument in opposition by the State of West Virginia Prosecuting Attorney, Frank P Bush Jr.,
Esquire, was that he felt the statute was ambiguous and not clear.
However, the statute is clearly, clear and any review of the statute shows that probation
cannot be longer than five years. West Virginia Code §62-12-11 states “The period of probation
together with any extension thereof shall not exceed five years”.
The defendant fails to see any ambiguity in this language and the to the Defendant the
language does not appear confusing as the State of West Virginia Claimed.
II. The Circuit Court of Randolph County lacked jurisdiction to entertain revocation
issues, where the probationer was not notified during the probationary period of violations of
probation and no revocations were initiated for a violation until after the expiration of the
probationary period.
Michael Phares’ probation of five years was completed as of January 11, 2008. On
January 16, 2008, the probation officer Charles C. Scott, filed a violation, primarily because full
restitution was not made. Under the recommendation section of the violation the probation
officer stated “In view of the fact that the defendant has not made full restitution, it is requested
that a violation hearing be scheduled to determine if the defendant’s probation should be
extended”.
The main concern of the probation officer was that out of the original restitution of
$29,916.80, the Defendant still owed $27,661.44. A hearing was held before the Honorable John
L. Henning on February 11, 2008 over objections of defendant’s counsel the Court did find the
Defendant in violation of his probation and continued court supervision.
This Honorable Court has previously held under Mangus v. McCarthy 188 W.Va. 563,
425 S.E.2d 239 (1972), the “lower Court lacked jurisdiction to entertain revocation issue where
probationer was not notified during probationary term of violation of probation and no
revocations were initiated for that violation until almost two months after expiration of
probationary period.”
Under syllabus pt 2 of Mangus v. McCarthy 188 W.Va. 563, 425 S.E.2nd 239 (1972), this
Honorable Court indicated that jurisdiction would not continue in that case which we feel should
be the same resolution in Mr. Phares’ case, where the violation was filed after the expiration of
the probationary term.
In order to sustain and extend the jurisdictional authority to revoke probation subsequent
to the expiration of the probationary period, the probationer must at least be charged with the
probation violation prior to such expiration. Where no such charges are brought prior to the
expiration of the probationary term, jurisdiction does not continue beyond the date of such
expiration.
The Defendant Mr. Phares however, continued under Court supervision and made
additional restitution payments. Although the Defendant felt that the Court lacked jurisdiction to
continue his probation and found him in violation of probation, the Defendant acquiesced to the
Court’s power.
During the hearing of December 8, 2008, however, the tone of the Court and the
Prosecutor took a turn to the worse. Both the Court and the State chastise the Defendant for
owning a home, and questioned his right to have a 401(k) retirement account with his
employment. The State indicated they intended to place the Defendant in the penitentiary. The
Circuit Court then indicated that they “better set it for a hearing then”. The Defendant believes
that the State of West Virginia and have intended to place the Defendant in the State Penitentiary
during the January 21, 2009. The Defendant is forced to fill this writ at this time. The
Defendant has filed a “Motion for Reconsideration”, which has not been ruled upon. If this
Honorable Court waits until the January 21, 2009 hearing, the Defendant’s freedom will be taken
from him, he will loss his job and be unable to support his family and pay the mortgage on his
home.
It is for this reason that the defendant seeks the protection of this Court of Appeals.
III. The Circuit Court does not have the authority to set restitution without conducting a
hearing on the record to determine if the offender is able to pay restitution without undue
hardship.
The Circuit Court of Randolph County without the benefit of a hearing, entered January
an Order on January 8, 2003, placing the Defendant, Michael Phares, on five (5) years
supervised probation, with the condition that the Defendant pay a minimum amount of $350.00
per month toward restitution.
The Court never conducted any hearing prior to Ordering the Defendant to pay the
amount of $350.00 per month.
That West Virginia Code § 62-12-9, conditions of release of probation under section (b)
(1) provides:
“That he or she make restitution or reparation, in whole or in part, immediately or within
the period of probation, to any party injured by the crime for which he or she has been convicted:
Provided, that the court conducts a hearing prior to imposition of probation and makes a
determination on the record that the offender is able to pay restitution without undue hardship.”
The Circuit Court now seeks to revoke the Defendant’s probation for failure to make this
Court Ordered Restitution which arbitrarily set without the required hearing.
PRAYER FOR RELIEF
WHEREFORE, the Petitioner, Michael Allen Phares, prays for the following relief:
a.
That Michael Allen Phares’ Petition for Writ of Prohibition be accepted for filing;
b.
That this Honorable Court issue a rule to show cause against the Respondents
directing them to show cause, if they can, as to why a Writ of Prohibition should not
be awarded against them;
c.
That all proceedings in the Circuit Court of Randolph County, West Virginia be
stayed in criminal action, State of West Virginia v. Michael Phares, criminal
case no. 01-F-80, pending resolution of the issues raised in this petition;
d.
Such other relief as this Honorable Court deems necessary, appropriate, as proper.
Respectfully submitted this _____ day of December 2008.
Petitioner, MICHAEL ALLEN PHARES
By Counsel,
______________________________
Dorwin J. Wolfe, (W.Va. Bar #5788)
Law Office of Dorwin J. Wolfe
200 Kerens Avenue
Elkins, West Virginia 26241
Telephone (304) 637-5755
Facsimile (304) 637-1001
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
MICHAEL ALLEN PHARES
Petitioner,
v.
Upon Original Jurisdiction
In Prohibition,
No. __________________
THE HONORABLE JOHN L. HENNING
JUDGE OF THE CIRCUIT COURT OF
RANDOLPH COUNTY, WEST VIRGINIA
Respondent,
CERTIFICATE OF SERVICE
This is to certify that on this ____ day of December, 2008, the undersigned counsel
served the foregoing “PETITION FOR WRIT OF PROHIBITION” upon counsel of record
by depositing a true copy in the United States Mail, postage prepaid, in an envelope addressed as
follows:
Frank P. Bush, Jr.
Randolph County Prosecutor’s Office
2nd Floor Courthouse Annex
4 Randolph Avenue
Elkins, WV 26241
_____________________________
Dorwin J. Wolfe