Background
Brian Keith Morrison pleaded guilty to grand larceny and petit larceny and received prison sentences. The Circuit Court of Jackson County later granted his motion for reconsideration and placed him on probation, requiring him to live with his ex-wife, abstain from drugs and alcohol, and report any change of residence within twenty-four hours.
Within weeks, Morrison tested positive for alcohol and methamphetamine. His ex-wife then removed him from the approved residence because of his drug use. Morrison did not timely notify his probation officer of the change, but he reported to the probation office when directed and explained that he had been staying where he could in the area. After Morrison admitted four alleged violations, the circuit court found that he had absconded supervision, revoked probation, and imposed the underlying sentences of one to ten years for grand larceny and one year for petit larceny.
The Court’s Holding
A divided Supreme Court of Appeals reversed and remanded. The majority held that the circuit court abused its discretion by treating Morrison’s conduct as absconding under West Virginia Code § 62-12-10(a)(1)(A). The circuit court made no factual findings supporting that determination, and the record showed that Morrison remained in the community, complied when directed to report, and told the probation officer where he had stayed the previous night.
Because Morrison’s conduct did not amount to leaving secretly or suddenly to avoid arrest, the majority concluded that the statutory absconding provision did not authorize revocation and execution of the underlying sentence. In the absence of specific written findings justifying a departure under § 62-12-10(c), the court was required to apply § 62-12-10(a)(2)’s limitation for first-time violations and impose no more than sixty days of confinement. Chief Justice Bunn, joined by Justice Flanigan, dissented, reasoning that the record supported the absconding finding and that Morrison’s four admitted violations could independently permit revocation.
Key Takeaways
- A probationer does not necessarily abscond merely by leaving an approved residence and failing to report the change promptly.
- Revocation based on absconding requires factual support showing conduct that qualifies as evading supervision, not simply other probation violations.
- For a first violation outside the statutory revocation categories, confinement is limited to sixty days unless the court makes specific written findings supporting a departure.
Why It Matters
The decision limits when West Virginia courts may characterize probation violations as absconding and thereby impose an underlying prison sentence. A revocation court must connect the record facts to the statutory ground it invokes and cannot bypass graduated sanctions without the findings required by law.
The dissent highlights unresolved tension over whether several violations alleged in a single revocation proceeding should count separately under the graduated-sanctions statute and how much deference appellate courts owe trial judges when determining that a probationer absconded.