No. 17-0276 – State of West Virginia v. Donald P. Cookman
FILED
April 27, 2018
released at 3:00 p.m.
LOUGHRY, Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I would affirm the circuit court’s March 21, 2017, order that ruled that the
petitioner must serve the remainder of his new five-year probationary period. It is clear
from the record that the petitioner’s new five-year period was not an extension of his
original probation, but rather a separate and distinct sentence. As such, the petitioner’s
probationary period does not exceed the statutory limit set forth in West Virginia Code §
62-12-11.
At the hearing on the revocation of the petitioner’s original period of
probation, the petitioner’s attorney stated as follows:
[W]e are in agreement that the Court can find that [the
petitioner was required to pay full restitution prior to the
expiration of his probation] and that has not been satisfied. It
was a condition of the original probation and that he has
complied with all other conditions of his probation according
to the State and to his probation officer, but because of the
full restitution issue the Court would revoke his probation,
sentence him to the suspended sentence – one-year sentence
for one of the suspended sentences. Then we are going to
move for a motion to – make a motion to reconsider. The
Court would grant that motion and place Mr. Cookman on
another term of probation of five years with the understanding
that if he makes full restitution prior to that time, the Court
would entertain a petition to early terminate his probation,
and also that he would continue to make payments at a
minimum of 20 percent of his gross earnings during the
extended period of his probation.
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It is evident that the petitioner intended to have his original probation revoked, to be
sentenced, and then for the circuit court to reconsider the sentence and place the
petitioner on probation. To that end, the circuit court’s April 1, 2016, order
revoke[d] Defendant’s supervised probation and sentence[d]
the Defendant to a term of incarceration. That the Defendant
would move the Court to suspend imposition of Defendant’s
sentence upon his second conviction for Petit Larceny.
Specifically, that the remainder of Defendant’s one (1) year
determinate jail sentence, for the second Petit Larceny
conviction, be suspended. Furthermore, Defendant would
tender to the Court payment in the amount of $53,748.40,
making the total paid to the victims to date $170,498.40,
leaving $118,497.20 to be paid.
Significantly, the petitioner’s original probationary period was revoked. Only after the
revocation did the circuit court grant a new, independent, and discrete probationary
period to the petitioner. As a result, the new five-year period of probation was not an
unlawful extension of his original period of probation under West Virginia Code § 62-12-
11, but rather a separate and distinct sentence.
By ignoring the record of the proceedings below, the majority has allowed
the petitioner to manipulate our justice system. Notably, the petitioner’s plea agreement
provided that he would make full restitution to the victims of his crimes. The petitioner
failed to pay full restitution during his original five-year probationary period. He then
requested the circuit court to grant him a new five-year probationary period in lieu of
incarceration in order to continue paying restitution. Upon receiving a new five-year
probationary period that he requested, the petitioner immediately challenged the
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probationary period as being in violation of our law. Such legal gamesmanship should not
be permitted, especially at the expense of the victims of the petitioner’s crimes. For these
reasons, I would affirm the circuit court’s order. Accordingly, I respectfully dissent.
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