IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2025 Term FILED May 20, 2025 released at 3:00 p.m. No. 23-184 C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
STATE OF WEST VIRGINIA, Respondent,
v.
LAWRENCE DAVONN FOYE, Petitioner.
Appeal from the Circuit Court of Kanawha County The Honorable Dan O’Hanlon, Senior Status Judge Case No. 18-F-306
AFFIRMED
Submitted: March 19, 2025 Filed: May 20, 2025
John Sullivan, Esq. John B. McCuskey, Esq. Deputy Chief Public Defender Attorney General Charleston, West Virginia William E. Longwell, Esq. Counsel for Petitioner Assistant Attorney General Charleston, West Virginia Counsel for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ARMSTEAD deeming himself disqualified, did not participate in the decision.
JUDGE JOSHUA D. BUTCHER sitting by temporary assignment. SYLLABUS BY THE COURT
1. “‘When reviewing the findings of fact and conclusions of law of a
circuit court sentencing a defendant following a revocation of probation, we apply a three-
pronged standard of review. We review the decision on the probation revocation motion
under an abuse of discretion standard; the underlying facts are reviewed under a clearly
erroneous standard; and questions of law and interpretations of statutes and rules are
subject to a de novo review.’ Syllabus Point 1, State v. Duke, 200 W. Va. 356, 489 S.E.2d
738 (1997).” Syllabus Point 1, State v. Hosby, 220 W. Va. 560, 648 S.E.2d 66 (2007).
2. “‘Moot questions or abstract propositions, the decision of which
would avail nothing in the determination of controverted rights of persons or of property,
are not properly cognizable by a court.’ Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W. Va.
684, 60 S.E. 873 (1908).” Syllabus Point 1, State ex rel. McCabe v. Seifert, 220 W. Va.
79, 640 S.E.2d 142 (2006).
3. “‘Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will determine whether sufficient
collateral consequences will result from determination of the questions presented so as to
justify relief; second, while technically moot in the immediate context, questions of great
public interest may nevertheless be addressed for the future guidance of the bar and of the
public; and third, issues which may be repeatedly presented to the trial court, yet escape
review at the appellate level because of their fleeting and determinate nature, may i appropriately be decided.’ Syl. Pt. 1, Israel by Israel v. West Virginia Secondary Schools
Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989).” Syllabus Point 2, State v.
Merritt, 221 W. Va. 141, 650 S.E.2d 240 (2007).
4. “‘In considering the constitutionality of a legislative enactment, courts
must exercise due restraint, in recognition of the principle of the separation of powers in
government among the judicial, legislative and executive branches. Every reasonable
construction must be resorted to by the courts in order to sustain constitutionality, and any
reasonable doubt must be resolved in favor of the constitutionality of the legislative
enactment in question. Courts are not concerned with questions relating to legislative
policy. The general powers of the legislature, within constitutional limits, are almost
plenary. In considering the constitutionality of an act of the legislature, the negation of
legislative power must appear beyond all reasonable doubt.’ Syllabus Point 1, State ex rel.
Appalachian Power Company v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).”
Syllabus Point 3, State v. Legg, 207 W. Va. 686, 536 S.E.2d 110 (2000).
5. The standard required for a final parole or probation revocation
hearing under West Virginia Code § 62-12-10(a)(1) (2013) is proof by a preponderance of
the evidence.
ii WALKER, Justice:
In January 2023, Lawrence Davonn Foye’s probation officer filed a petition
to revoke Mr. Foye’s court-supervised parole, alleging that he committed three violations.
Following a hearing, the Circuit Court of Kanawha County granted the petition and
imposed the underlying sentence. Mr. Foye appeals and raises issues regarding the burden
of proof applicable in these hearings and sufficiency of the evidence. We conclude that
the standard required for a final parole or probation revocation hearing under West Virginia
Code § 62-12-10(a)(1) (2013) is proof by a preponderance of the evidence. Because Mr.
Foye did not contest two of the alleged violations, and the State presented sufficient
evidence of the third, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 2020, Lawrence Foye pleaded guilty to and was convicted of the
felony offense of fleeing in a vehicle with reckless indifference to the safety of others. The
circuit court sentenced him to serve not less than one nor more than five years’
imprisonment but suspended the sentence in favor of home incarceration.
In October 2022, the circuit court granted Mr. Foye’s motion for
reconsideration of his sentence and placed him on a one-year term of court-supervised
parole. Mr. Foye was subject to several parole conditions, including that he not “violate
1 any of the laws of the State of West Virginia,” consort with “disreputable persons,”1 nor
use or possess any drugs described in the Uniform Controlled Substances Act unless
prescribed by a licensed physician. Mr. Foye signed the order that set forth the parole
terms and conditions, acknowledging that he understood and agreed to abide by them.
Because the circuit court granted Mr. Foye’s request for parole after he
served part of his sentence on home incarceration, his revocation was subject to the
procedures set forth in West Virginia Code § 62-12-10, which uses the term probation
rather than parole. 2 So, even though Mr. Foye was a “parolee,” the statute governing
revocation refers to “probationer.” This Court has explained that “[t]he basic distinction
between parole and probation, . . . is that the term of probation ‘has no correlation to the
underlying criminal sentence, while parole is directly tied to it.’”3 That said, throughout
1 The parole order specifically provides that Mr. Foye “shall refrain from frequenting unlawful or disreputable places or consorting with disreputable persons, including but not limited to, people who are charged with or have been convicted of a misdemeanor or felony, or are or have been on probation or parole, or any other person as directed by the supervising officer[.]” 2 See W. Va. Code § 62-11B-12(b) (2002) (providing that when parole is granted following a sentence of home incarceration, parolee is subject to the procedures and penalties set forth in § 62-12-10). 3 State v. Cooper, 167 W. Va. 322, 331, 280 S.E.2d 95, 100-01 (1981) (quoting Syl. Pt. 1, in part, Jett v. Leverette, W. Va., 247 S.E.2d 469 (1978)). Simply stated, probation is a term of conditional liberty imposed instead of a term of imprisonment, whereas parole is a term of conditional liberty imposed upon early release from prison. 2 this opinion, we acknowledge and attempt to minimize the confusion that the use of the
two terms might create.
In January 2023, Huntington Police Detective Brandon Adkins filed a
criminal complaint in the Magistrate Court of Cabell County charging Mr. Foye with the
first-degree murder of Christopher Johnson, who was shot and killed in Huntington on
November 30, 2022. Detective Adkins alleged that Mr. Foye, along with Matthew
Daughtery, Malik Hawk, and Demarquis Patterson, “willfully and deliberately participated
in the events that ultimately led to the death of Christopher Johnson.” Mr. Foye was
arrested, and at his preliminary hearing, the magistrate found probable cause to bind Mr.
Foye’s case over to the grand jury for indictment.
Mr. Foye’s probation officer promptly filed a petition to revoke parole,
alleging that Mr. Foye committed three violations when he (1) failed to abstain from
possessing and using drugs described in the Uniform Controlled Substances Act as
evidenced by his December 16, 2022 admission to using marijuana; (2) violated the laws
of the State of West Virginia when he was charged with the felony offense of first-degree
murder; and (3) failed to refrain from having contact with a disreputable person, Malik
Hawk, who was in the car with Mr. Foye at the time of his arrest on the murder charge.
The circuit court held a hearing on the petition to revoke Mr. Foye’s parole
on February 24, 2023. Detective Adkins testified about his investigation into the murder
3 of Mr. Johnson, explaining that a “cooperating individual” who was at the scene of the
crime provided him with the details of the murder and the names of four suspects, including
Mr. Foye. Mr. Foye’s counsel objected to this testimony as hearsay and the State responded
that the Rules of Evidence do not apply to parole revocation hearings.4 After the court
overruled the objection, Detective Adkins stated that the information obtained from the
cooperating witness was corroborated through cell phone extractions, call detail records,
and video footage. He explained that Mr. Foye’s cell phone data showed that he was in
Huntington at the time of Mr. Johnson’s murder. Detective Adkins also testified that he
located a vehicle involved in the murder that Mr. Foye was alleged to have been using at
the time. He stated that Mr. Foye was charged with first-degree murder, and that the
magistrate court found probable cause to bind the case over to the grand jury.
During cross-examination, 5 Detective Adkins read Mr. Foye’s criminal
complaint on the record. It stated that, based on information obtained through a
“cooperating witness,” Mr. Foye, Mr. Hawk, Mr. Patterson, and Mr. Daughtery traveled
4 Rule 1101 of the West Virginia Rules of Evidence states, in part, that, “[u]nless otherwise provided by rules of the Supreme Court of Appeals, these rules other than those with respect to privileges do not apply in the following situations: . . . (3) Miscellaneous Proceedings. Sentencing; granting or revoking probation or supervised release[.]” 5 Before cross-examining Detective Adkins, counsel for Mr. Foye asked for the cell phone records. The State advised that it did not have the records in its possession and argued that it was unnecessary to provide them given the nature of the proceedings. The circuit court ruled that Mr. Foye was entitled to the records and directed counsel to proceed with questioning in the meantime.
4 from Charleston to Huntington in two separate vehicles, one being a black Chevrolet Blazer
with a Texas license plate, and made plans to meet with Mr. Johnson. The four then
separated into two groups, with Mr. Patterson and Mr. Daughtery meeting Mr. Johnson and
Mr. Foye and Mr. Hawk remaining in the Blazer a short distance away. The complaint
indicated that the cooperating witness heard gunshots, and security camera footage
captured Mr. Daughtery running from the scene and being picked up by the Blazer, and
Mr. Patterson leaving the scene in the second vehicle.
Detective Adkins testified that Mr. Daughtery was believed to be the primary
shooter, but that Mr. Patterson had possibly been a shooter as well. He acknowledged that
Mr. Foye did not appear to be a shooter as he was located approximately “half a block
away.” Detective Adkins stated that the cooperating witness was with Mr. Foye during the
entire encounter but had not yet been charged.
After Detective Adkins testified, Mr. Foye’s counsel informed the circuit
court that Mr. Foye did not contest the allegations in the revocation petition that he used
marijuana and failed to refrain from having contact with a disreputable person, Mr. Hawk.
Mr. Foye’s counsel stated that he did not plan to have Mr. Foye give a sworn admission,
“[b]ut for the legal purpose of this hearing, we’ll accept those violations [with the]
understanding that they can lead to revocation.”
5 The State called Mr. Foye’s probation officer who testified that in the process
of submitting to a drug screen in December 2022, Mr. Foye admitted to using marijuana
and tested positive for that drug. The probation officer testified that she became aware that
Mr. Foye was arrested and charged with the first-degree murder of Mr. Johnson and that
he was having contact with a disreputable person, Mr. Malik. After the State presented its
case, Mr. Foye did not testify or present any evidence.
At the conclusion of the hearing, the circuit court heard arguments from
counsel who disputed the standard of proof that governs a parole revocation. The State
maintained that under West Virginia Code § 62-12-10(a)(1), the standard of proof was
“reasonable cause” to believe that Mr. Foye violated the terms of his parole.6 On the other
hand, Mr. Foye’s counsel claimed that the standard was clear and convincing evidence, but
on appeal to this Court he now admits that he misspoke and states that a “clear
preponderance of the evidence” standard applies, citing Sigman v. Whyte.7 The parties also
disputed whether there was sufficient evidence for the court to conclude that Mr. Foye
6 See W. Va. Code § 62-12-10(a), in part (“(1) If the court or judge finds reasonable cause exists to believe that the probationer: (A) Absconded supervision; (B) Engaged in new criminal conduct other than a minor traffic violation or simple possession of a controlled substance; or (C) Violated a special condition of probation designed either to protect the public or a victim; the court or judge may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed and order that sentence be executed.”). 7 See Syl. Pt. 4, Sigman v. Whyte, 165 W. Va. 356, 268 S.E.2d 603 (1980) (“Where a probation violation is contested, the State must establish the violation by a clear preponderance of the evidence.”). 6 violated State law in connection with his murder charge. The court ruled from the bench
that it would revoke Mr. Foye’s parole based on all three violations.
The circuit court entered its Parole Revocation and Sentencing Order on
March 2, 2023, revoking Mr. Foye’s parole and sentencing him to not less than one nor
more than five years of incarceration, for his conviction of fleeing in a vehicle with reckless
indifference to the safety of others, with credit for time served. Mr. Foye appealed the
circuit court’s order to this Court.
Shortly before arguments were held in this matter in March 2025, the State
informed this Court about two events that appeared to render Mr. Foye’s appeal moot.
First, Mr. Foye discharged his sentence at issue here on May 15, 2024. And second,
following his Kennedy8 plea for conspiracy to commit murder of Mr. Johnson in August
2024, Mr. Foye was convicted of the criminal offense that he contested at the parole
revocation hearing.
8 See Syl. Pt. 1, Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987) (stating that “[a]n accused may voluntarily, knowingly and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, if he intelligently concludes that his interests require a guilty plea and the record supports the conclusion that a jury could convict him.”).
7 II. STANDARD OF REVIEW
Mr. Foye appeals the circuit court’s order revoking his parole. This Court
has held that
“[w]hen reviewing the findings of fact and conclusions of law of a circuit court sentencing a defendant following a revocation of probation, we apply a three-pronged standard of review. We review the decision on the probation revocation motion under an abuse of discretion standard; the underlying facts are reviewed under a clearly erroneous standard; and questions of law and interpretations of statutes and rules are subject to a de novo review.”[9]
The determination of whether the statutory procedures afforded an individual
comport with the constitutional requirements for procedural due process presents a
question of law we review de novo.
III. ANALYSIS
A. Public Interest Exception to the Mootness Doctrine
We begin with the observation that during the appellate process, Mr. Foye
discharged the underlying sentence for his conviction of fleeing in a vehicle with reckless
indifference to the safety of others. Mr. Foye was also convicted of conspiracy to commit
murder of Mr. Johnson—the only alleged parole violation he contested. The State contends
that these events render Mr. Foye’s appeal moot because any decision granting his request
9 Syl. Pt. 1, State v. Hosby, 220 W. Va. 560, 648 S.E.2d 66 (2007) (quoting Syl. Pt. 1, State v. Duke, 200 W. Va. 356, 489 S.E.2d 738 (1997)).
8 for relief would be futile as he has discharged the sentence at issue here and cannot be
placed back on parole. Even so, Mr. Foye asks that we address the issues because they
involve fundamental constitutional rights.
Our general rule is that “[m]oot questions or abstract propositions, the
decision of which would avail nothing in the determination of controverted rights of
persons or of property, are not properly cognizable by a court.”10 Even so, this Court has
recognized certain exceptions to this rule when we held that
“[t]hree factors to be considered in deciding whether to address technically moot issues are as follows: first, the court will determine whether sufficient collateral consequences will result from determination of the questions presented so as to justify relief; second, while technically moot in the immediate context, questions of great public interest may nevertheless be addressed for the future guidance of the bar and of the public; and third, issues which may be repeatedly presented to the trial court, yet escape review at the appellate level because of their fleeting and determinate nature, may appropriately be decided.”[11]
We agree with Mr. Foye that procedural due process protections pertaining
to the revocation of parole is a matter of public interest, and a determination of the standard
10 Syl. Pt. 1, State ex rel. McCabe v. Seifert, 220 W. Va. 79, 640 S.E.2d 142 (2006) (quoting Syl. Pt. 1, Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908)). 11 Syl Pt. 2, State v. Merritt, 221 W. Va. 141, 650 S.E.2d 240 (2007) (quoting Syl. Pt. 1, Israel by Israel v. W. Va. Secondary Schs. Activities Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (1989)).
9 of proof required at a final parole revocation hearing should be addressed for the future
guidance of the bar and of the public. So, we proceed to the merits of this appeal.
B. Procedural Due Process
Parole revocation proceedings are not part of a criminal prosecution, so they
are not subject to the same strict procedural requirements attendant to a criminal trial.12 By
the time Mr. Foye was charged with committing parole violations, his underlying criminal
case had already been adjudicated. Mr. Foye escaped total loss of liberty only because the
circuit court exercised its discretion and placed him on parole. Even though this Court has
stated that “probation is a privilege of conditional liberty bestowed upon a criminal
defendant through the grace of the circuit court[,]”13 we held in Louk v. Haynes,14 that the
Due Process Clause of the Fourteenth Amendment of the United States Constitution
requires a probationer who is arrested for violating the conditions of his probation to be
afforded both a prompt preliminary hearing and a final revocation hearing.15
12 State v. Holcomb, 178 W. Va. 455, 459, 360 S.E.2d 232, 236 (1987). 13 State v. Duke, 200 W. Va. 356, 364, 489 S.E.2d 738, 746 (1997). 14 159 W. Va. 482, 223 S.E.2d 780 (1976). 15 Id. at 496-97, 223 S.E.2d at 789-90.
10 In Louk, we relied on Morrissey v. Brewer 16 and Gagnon v. Scarpelli, 17
where the Supreme Court of the United States established that individuals with conditional
freedom privileges—parolees and probationers—are entitled to due process when faced
with revocation of their freedom. It also recognized the State’s “overwhelming interest in
being able to return the individual to imprisonment without the burden of a new adversary
criminal trial if in fact he has failed to abide by the conditions of his parole.”18 Parole
revocation is a two-step process; “[t]he first stage occurs when the parolee is arrested and
detained, usually at the direction of his parole officer.[19] The second occurs when parole
is formally revoked.”20
16 408 U.S. 471 (1972). 17 411 U.S. 778 (1973). 18 Morrissey, 408 U.S. at 483. 19 See Morrissey, 408 U.S. at 485 (“Such an inquiry should be seen as in the nature of a ‘preliminary hearing’ to determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions.”); see also W. Va. Code § 62-12-10 (“(a) If at any time during the period of probation there shall be reasonable cause to believe that the probationer has violated any of the conditions of his or her probation, the probation officer may arrest him or her with or without an order or warrant, or the court which placed him or her on probation, or the judge thereof in vacation, may issue an order for his or her arrest, whereupon he or she shall be brought before the court, or the judge thereof in vacation, for a prompt and summary hearing.”). 20 Morrissey, 408 U.S. at 471 (footnote added); see W. Va. Code § 62-12-10(a)(1) and (2), discussed infra.
11 In Morrissey, the Supreme Court mandated a hearing “prior to the final
decision on revocation by the parole authority,” if the parolee desires such a hearing. 21
While declining to “write a code of procedure” for parole revocation hearings, the Supreme
Court specified minimum requirements of due process.22 This Court adopted the same
procedural due process protections in Louk.23 For instance, due process provides a parolee
or probationer the right to be heard, present witnesses, and cross-examine the State’s
witnesses at the final revocation hearing.
When addressing the standard of proof, Morrissey instructs that the final
revocation hearing
must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions,
21 Morrissey, 408 U.S. at 488. 22 Id. 23 See Syl. Pt. 12, Louk, 159 W. Va. 482, 223 S.E.2d 780 (“The final revocation proceeding required by the due process clause of the Fourteenth Amendment and necessitated by W. Va. Code, 62-12-10, as amended, must accord an accused with the following requisite minimal procedural protections: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of evidence against him; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (5) a ‘neutral and detached’ hearing officer; (6) a written statement by the fact-finders as to the evidence relied upon and reasons for revocation of probation.”).
12 or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation.[24]
The primary issue in this appeal—the standard of proof for a final parole
revocation hearing—is an important procedural safeguard. “The function of a standard of
proof . . . is to instruct the factfinder concerning the degree of confidence . . . he should
have in the correctness of factual conclusions for a particular type of adjudication,”
indicating “the relative importance attached to the ultimate decision.”25
Before our detailed examination of the statute at issue, it is helpful to review
the continuum of burdens of evidentiary proof and the procedural standards implicated. In
criminal cases, the demanding standard of proof beyond a reasonable doubt applies because
a person who is presumed to be innocent is facing total loss of liberty.26 In contrast, the
clear and convincing evidence standard is required in exceptional civil cases, such as a
court order limiting or terminating parental rights to the custody of minor children,27 or
24 Morrissey, 408 U.S. at 488. 25 Addington v. Texas, 441 U.S. 418, 423 (1979) (internal quotation marks and citations omitted). 26 Id. 27 Syl. Pt. 6, In re Willis, 157 W. Va. 225, 207 S.E.2d 129 (1973) (“The standard of proof required to support a court order limiting or terminating parental rights to the custody of minor children is clear, cogent and convincing proof.”).
13 taking private property by adverse possession.28 Less demanding than that is proof by a
preponderance of the evidence, the general standard used in civil cases,29 which means
“more likely than not.”30 Finally, the probable cause standard requires even less than a
preponderance of the evidence standard. In the context of an arrest, we have explained that
probable cause exists when the facts within the knowledge of the arresting officer are
“sufficient to warrant a prudent man in believing that an offense has been committed.”31
With this background to guide our analysis, we proceed to Mr. Foye’s assignments of error.
C. Conditional-freedom Privilege Revocation Under W. Va. Code § 62-12-10(a)(1)
Mr. Foye first argues that the circuit court did not apply the correct burden
of proof and so violated his procedural due process rights at the parole revocation hearing.
Relying on Sigman, Mr. Foye claims the circuit court should have applied a “clear
preponderance of evidence” standard. 32 The State responds that the court applied the
correct standard—the “reasonable cause” standard set forth in West Virginia Code § 62-
28 Syl. Pt. 2, Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d 489 (1996) (“The burden is upon the party who claims title by adverse possession to prove by clear and convincing evidence all elements essential to such title.”). 29 Lutz v. Orinick, 184 W. Va. 531, 534, 401 S.E.2d 464, 467 (1990). 30 Jackson v. State Farm Mut. Auto. Ins. Co., 215 W. Va. 634, 640, 600 S.E.2d 346, 352 (2004). 31 In re Moss, 170 W. Va. 543, 547-48, 295 S.E.2d 33, 38 (1982). 32 See supra note 7. Mr. Foye complains that the circuit court applied the wrong burden of proof at the hearing and in its order. 14 12-10(a)(1), the statute that governs final revocation hearings. The State goes on to explain
that prior to 2013, there was no burden of proof specified in the statute, so this Court filled
the gap in Sigman by holding that a clear preponderance of the evidence standard applied.
But in 2013, the Legislature amended West Virginia Code § 62-12-10(a) to include the
reasonable cause standard, providing, in relevant part, that:
(1) If the court or judge finds reasonable cause exists to believe that the probationer:
(A) Absconded supervision;
(B) Engaged in new criminal conduct other than a minor traffic violation or simple possession of a controlled substance; or
(C) Violated a special condition of probation designed either to protect the public or a victim; the court or judge may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed and order that sentence be executed.
Section 62-12-10 does not define “reasonable cause,” and the parties have
cited no case law from any other jurisdiction that applies or explains what a reasonable
cause evidentiary standard means in this context. Courts generally do not use reasonable
cause as a standard of proof at an evidentiary hearing. Rather, the Legislature has used this
phrase as a standard that triggers State action. For example, in State v. Dunbar, 33 we
discussed the language of West Virginia Code § 17C-16-2(a) (2009), which authorizes the
33 229 W. Va. 293, 728 S.E.2d 539 (2012).
15 West Virginia State Police to make traffic stops when there is “reasonable cause to believe
that a vehicle is unsafe or not equipped as required by law[.]”34 And at the first step of a
parole or probation revocation process, a probation officer may make an arrest, with or
without a warrant, when there is “reasonable cause to believe that the probationer has
violated any of the conditions of his probation.”35 At oral argument, the State asserted that
reasonable cause is akin to a probable cause standard. On the other hand, Mr. Foye
maintains that reasonable cause is not a constitutionally adequate burden of proof under
Morrisey. He urges us to reject the standard set forth in § 62-12-10(a)(1) as
unconstitutional and return to the clear preponderance of evidence standard under Sigman.
When a question of a statute’s constitutionality is raised, courts must
approach it with caution, examine it with care, and sustain the legislation unless its
invalidity is clear. We have held that:
“In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act
34 W. Va. Code § 17C-16-2(a) 35 W. Va. Code § 62-12-10(a).
16 of the legislature, the negation of legislative power must appear beyond all reasonable doubt.”[36]
As discussed above, minimal constitutional due process requirements are met
when the process provides adequate safeguards to the parolee confronted by an action
against him by the State. While Mr. Foye’s liberty interest in avoiding incarceration is
constitutionally significant, it is a conditional one. The standard of proof in a final parole
revocation hearing must “insure that his liberty interest is not unjustifiably taken away,”
while also serving the State’s important interest in not “imprudently prejudicing the safety
of the community.”37 For this reason, we reject the State’s contention that the reasonable
cause standard should be viewed as a probable cause standard in this context because
Morrissey states that the final hearing “must be the basis for more than determining
probable cause[.]”38 But we also reject Mr. Foye’s request to negate the statute and apply
Sigman because it has been superseded by statute.
To resolve the issue of what standard of proof applies at the final parole
revocation hearing, we begin with an examination of West Virginia Code § 62-12-10(a)(1).
36 Syl. Pt. 3, State v. Legg, 207 W. Va. 686, 536 S.E.2d 110 (2000) (quoting Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965)). 37 Gagnon, 411 U.S. at 785. 38 Morrissey, 408 U.S. at 488. We acknowledge that the reasonable cause standard at the first step of the revocation process—when a probationer is arrested and detained— could be viewed as a probable cause standard consistent with Morrissey. See supra note 19.
17 As a matter of course, we apply a presumption that the Legislature intended the 2013
amendments to the revocation statute to be read commensurate with the body of law
surrounding the standard for probation revocation hearings because, in enacting a statute,
we presume that “the legislators who drafted and passed it were familiar with all existing
law applicable to the subject-matter, whether constitutional, statutory, or common, and
intended the statute to harmonize completely with the same and aid in the effectuation of
the general purpose and design thereof.”39 In accordance with that rule, this Court must
presume that when the Legislature amended West Virginia Code § 62-12-10(a)(1) in 2013,
the legislators were familiar with the clear preponderance of evidence standard articulated
in Sigman, yet specifically chose not to use that standard. At the same time, we presume
that they were familiar with the constitutional principles set forth in Morrissey that require
a higher standard of proof than probable cause and intended the statute to harmonize
completely with them.
Because due process requires that the final evidentiary hearing be the basis
for more than determining probable cause, and we presume that West Virginia Code § 62-
12-10(a) is not contrary to any constitutional right, we construe § 62-12-10(a)(1)’s
“reasonable cause” requirement to mean proof by a simple preponderance of the evidence.
The application of the preponderance of the evidence standard appropriately protects the
39 Syl. Pt. 4, in part, Davis Mem’l Hosp. v. W. Va. State Tax Comm’r, 222 W. Va. 677, 671 S.E.2d 682 (2008).
18 interests of both the State and the offender. For this reason, many state courts40 and federal
courts41 apply that standard of proof in final parole and probation revocation hearings. We
hereby hold that the standard required for a final parole or probation revocation hearing
under West Virginia Code § 62-12-10(a)(1) (2013) is proof by a preponderance of the
evidence.
D. Sufficiency of Evidence of Parole Violations
Mr. Foye next contends that the circuit court erred when it concluded that the
State presented sufficient evidence to demonstrate that he violated the terms of his parole.
The State responds that the evidence shows that Mr. Foye was charged with the murder of
40 See, e.g., Jones v. Bailey, 576 S.W.3d 128, 147 (Ky. 2019) (“as with probation revocation, the standard of proof required to establish a conditional-freedom violation is preponderance of the evidence.”); State ex rel. Flowers v. Dep’t of Health & Soc. Servs., 260 N.W.2d 727, 734 (Wis. 1978) (“In our opinion, the preponderance of evidence standard of proof is the proper standard to use in parole and probation revocation cases.”); People v. Smith, 245 N.E.2d 13, 15 (Ill.App.2d 1969) (“to revoke probation guilt need merely be shown by a preponderance of the evidence.”); State v. Fisher, 522 P.2d 560, 562 (Ariz.App. 1974) (“The civil standard of proof by a preponderance of the evidence is all that is required to revoke probation.”); State v. Hughes, 200 N.W.2d 559, 563 (Iowa 1972) (stating the requisite degree of proof at a probation revocation hearing is preponderance of the evidence). 41 See, e.g., United States v. Perkins, 67 F.4th 583, 615 (4th Cir. 2023) (recognizing that preponderance of the evidence standard applies to probation revocation); United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996) (“The revoking court must base a finding of a probation violation on a preponderance of the evidence.”); United States v. Smith, 767 F.2d 521, 523-24 (8th Cir. 1985) (“[T]he standard of proof required for probation revocation is only a preponderance of the evidence[.]”); United States v. Lyons, 312 F. App’x 133, 134 (10th Cir. 2009) (affirming district court’s finding that, by a preponderance of the evidence, the defendant violated probation).
19 Mr. Johnson, violated a no-contact provision of his parole, and violated a no-illegal-drug
use provision of his parole.
We recognize that parole revocation hearings are not connected with
retribution. Parole and probation are intended to foster the reintegration of the individual 42 into society at the earliest opportunity. So, “[t]he ultimate question in revocation
proceedings is whether the parolee remains a ‘good risk’; whether his rehabilitation can be
successfully achieved outside prison walls or will be furthered by returning him to a closed
society.” 43 To this end, the final revocation hearing is flexible, and because the West
Virginia Rules of Evidence do not apply at parole or probation revocation hearings,44 a
court may consider evidence including letters, affidavits, and other material that would not
be admissible in a criminal trial.45 While hearsay evidence is admissible, there must be
some corroboration and basis for believing the hearsay to be reliable.46 “The law has been
42 Gagnon, 411 U.S. at 783. 43 State ex rel. Flowers, 260 N.W.2d at 732. 44 W. Va. R. Evid. 1101. 45 Morrissey, 408 U.S., at 489 (“[T]he process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial”). 46 In Crawford v. Jackson, 323 F.3d 123, 128 (D.C. Cir. 2003), the court stated that “[r]eliance on hearsay in parole revocation hearings is not per se impermissible.” But, “the use of unsubstantiated or unreliable hearsay would certainly eviscerate the safeguards guaranteed by Morrissey and Gagnon.” Id. (internal quotation marks and ellipses omitted)).
20 summarized as holding: ‘Although a revocation of probation may not be based on hearsay
evidence alone, a revocation of probation will stand even though hearsay evidence was
introduced at a hearing, provided there was additional competent evidence sufficient to
support the revocation.’”47
In this case, the State presented unrebutted evidence that Mr. Foye committed
two parole violations when he had contact with a disreputable person, his co-defendant in
the murder case, Mr. Hawk, and engaged in illegal marijuana use. Mr. Foye did not contest
these parole violations; in fact, his counsel conceded that “we’ll accept those violations
[with the] understanding that they can lead to revocation.” While Mr. Foye now argues
that those were “technical violations” that should have been resolved by graduated jail
sanctions,48 he did not argue that below. Because Mr. Foye did not preserve this challenge
for appellate review, that issue is not properly before this Court, and we decline to address
it here.49
47 State v. Stuckey, 174 W. Va. 236, 239, 324 S.E.2d 379, 381-82 (1984) (citing 21 Am.Jur.2d Criminal Law § 579 (1981)); see, e.g., Ash v. Reilly, 433 F. Supp. 2d 37, 44 (D.D.C. 2006) (“Thus, when hearsay is used to support a decision to revoke parole, there must be some independent basis for believing the hearsay to be true.”). 48 See W. Va. Code § 62-12-10(a)(2). 49 See Syl. Pt. 2, State ex rel. Cooper v. Caperton, 196 W. Va. 208, 470 S.E.2d 162 (1996) (“To preserve an issue for appellate review, a party must articulate it with such sufficient distinctiveness to alert a circuit court to the nature of the claimed defect.”).
21 The remainder of Mr. Foye’s attack on the sufficiency of the evidence is his
contention that the evidence connecting him to the murder of Mr. Johnson was based on
nothing but hearsay. We disagree. Although Detective Adkins relied on statements from
a confidential informant who was allegedly at the scene of the murder, he corroborated that
information during his investigation by reviewing Mr. Foye’s cell phone records and video
footage of the area surrounding the scene around the time when Mr. Johnson was shot and
killed. He explained that Mr. Foye’s cell phone data showed that he was in Huntington at
the time. Detective Adkins testified that he located a vehicle involved in the murder and
determined that Mr. Foye was using that vehicle. The State also presented evidence that
Mr. Foye was charged with the murder of Mr. Johnson in Cabell County, and that the
magistrate court found probable cause to bind the case over to the grand jury.
Rather than focusing on whether certain pieces of evidence would be
admissible at a criminal trial, courts reviewing revocation decisions “are properly more
concerned with whether the evidence considered as a whole, including the hearsay
evidence, was both sufficient in quantity and reliability to ensure fundamental due process
rights.”50 Considering the record before us, we readily conclude that the State proved, by
a preponderance of the evidence, that Mr. Foye committed three parole violations. So, the
circuit court did not abuse its discretion when revoking his parole.
50 Crawford, 323 F.3d at 128.
22 IV. CONCLUSION
For the reasons set out above, we affirm the March 2, 2023, order of the
Circuit Court of Kanawha County.
Affirmed.