R.S. Mutter, Warden v. Bobby Ross

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2018 Term

_______________

No. 16-1156 FILED

_______________ March 12, 2018

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

R.S. Mutter, Warden, SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Stevens Correctional Center,

Petitioner,

v.

BOBBY ROSS,

Respondent.

____________________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Tod J. Kaufman, Judge

Civil Action No. 15-P-322

AFFIRMED

____________________________________________________________

Submitted: January 24, 2018

Filed: March 12, 2018

Patrick Morrisey, Esq. Clinton W. Smith, Esq.

Attorney General Charleston, West Virginia

Brooks H. Crislip, Esq. Counsel for the Respondent

Deputy Attorney General

Celeste Webb-Barber, Esq.

Assistant Attorney General

Zachary A. Viglianco, Esq.

Assistant Attorney General

Charleston, West Virginia

Counsel for the Petitioner

JUSTICE KETCHUM delivered the Opinion of the Court.

SYLLABUS BY THE COURT

Generally, under Packingham v. North Carolina, 137 S.Ct. 1730 (2017), a

parole condition imposing a complete ban on a parolee’s use of the internet

impermissibly restricts lawful speech in violation of the First Amendment to the United

States Constitution. There are instances, however, where the West Virginia Parole Board

has a legitimate interest in restricting a parolee’s access to the internet. The restrictions

must be narrowly tailored so as to not burden substantially more speech than is necessary

to further the government’s legitimate interests.

i

Justice Ketchum:

The West Virginia Parole Board (“the Board”) revoked Bobby Ross’s

parole based, in part, on him violating a condition of parole prohibiting him from

possessing or having contact with a computer or other device with internet access. We

are asked whether this condition of parole is constitutional under the First Amendment.1

In 2017, the United States Supreme Court held in Packingham v. North

Carolina2 that a state statute barring registered sex offenders from accessing social media

networking websites was an overbroad restriction of the right to free speech in violation

of the First Amendment. Like the statute in Packingham, Mr. Ross’s condition of parole

“bars access to . . . sources for knowing current events, checking ads for employment,

speaking and listening in the modern public square, and otherwise exploring the vast

realms of human thought and knowledge.”3 Unlike the statute in Packingham, Mr.

Ross’s condition of parole extends beyond social media. It forbids Mr. Ross from

visiting any website, receiving an email from an employer or medical professional,

paying a bill online, using the internet to check the weather, or using a smartphone.

1

The First Amendment to the United States Constitution provides, in

pertinent part, that: “Congress shall make no law . . . abridging the freedom of speech[.]”

2

137 S.Ct. 1730 (2017).

3

Id., at 1737.

1

Because Mr. Ross’s condition of parole is broader than the statute struck

down in Packingham, we find that it is an overbroad restriction of free speech in violation

of the First Amendment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 1987, Mr. Ross sexually assaulted an adult female in her apartment and

stole money from her purse. He was convicted and sentenced to prison on the following

charges: (1) first-degree sexual assault; (2) burglary; and (3) attempted aggravated

robbery. He remained in jail until the Board released him on parole in May 2014. Upon

his release, Mr. Ross was required to register as a sex offender.4

Mr. Ross’s release on parole was subject to numerous conditions. Because

he was a sex offender, Mr. Ross’s parole officer imposed on him a special condition of

parole5 prohibiting him from “possess[ing] or hav[ing] contact with any computer,

electronic device, communication device or any device which is enabled with internet

4

Mr. Ross was not sentenced to extended supervision as a sex offender

upon his release from prison. West Virginia’s statute for extended supervision for sex

offenders, West Virginia Code § 61-12-26, did not take effect until June 2003 and did not

apply to Mr. Ross’s conviction in 1987.

5

The version of W.Va. Code St. R. § 90.2.2.1.l in effect when Mr. Ross

was released on parole authorized parole officers to impose additional restrictions on

individual parolees beyond the conditions imposed on all parolees by statute or by

regulation. These additional restrictions are commonly called “special conditions” of

parole. W.Va. Code St. R. § 90.2.2.1.1 was repealed in 2016. Its repeal has no effect on

this case.

2

access.”6 Furthermore, Mr. Ross’s release on parole was subject to him not committing

any new violation of criminal law. Under West Virginia’s Sex Offender Registration

Act,7 it is a felony for a registered sex offender to fail to inform the West Virginia State

Police of any internet account(s) he or she has.8

While he was released on parole, Mr. Ross moved in with his girlfriend,

M.W. M.W. owned a computer with internet access which she kept at the residence she

shared with Mr. Ross. Both the computer and the internet account were password

protected, and it is undisputed that Mr. Ross did not know the password to M.W.’s

computer or her internet account. There was no evidence presented that Mr. Ross ever

used M.W.’s computer or logged on to the internet during his parole.

In December 2014, seven months after Mr. Ross was released on parole,

Mr. Ross’s parole officer learned that M.W. owned a computer. The parole officer did

not conduct a forensic analysis of the computer to determine whether Mr. Ross used the

computer or that he otherwise logged on to the internet during his parole. Nevertheless,

6

Emphasis added.

7

West Virginia Code §§ 15-12-1 – 10 [1999].

8

Under West Virginia Code § 15-12-2(d) [2012]:

Persons required to register [as a sex offender] under

the provisions of this article shall register in person at the

West Virginia State Police detachment responsible for

covering the county of his or her residence, and in doing so,

provide or cooperate in providing, at a minimum, the

following when registering: . . . (8) Information relating to

any Internet accounts the registrant has and the screen names,

user names or aliases the registrant uses on the Internet[.]

3

Mr. Ross was arrested and returned to custody for violating the conditions of his parole

by possessing or having contact with a computer with internet access.9

The Board conducted a parole revocation hearing charging Mr. Ross with

violating his parole in the following three ways: (1) possessing or having contact with a

computer with internet access; (2) failing to inform the State Police of an internet

account; and (3) using marijuana on three separate occasions during his parole. Mr.

Ross pled not guilty to possessing or having contact with a computer and failing to report

an internet account, but he admitted to using marijuana.

At the revocation hearing, Mr. Ross’s parole officer testified before the

Board that she conducted no forensic analysis of the computer to reveal its internet usage

history. The State presented no evidence that Mr. Ross used M.W.’s computer, used or

possessed another computer, or had an internet account or username. The State also

failed to refute testimony from both Mr. Ross and M.W. that he did not know the

password to M.W.’s computer or her internet account.

Nevertheless, the Board found sufficient evidence that Mr. Ross was guilty

of possessing or having contact with a computer, failing to report an internet account, and

using marijuana. The Board revoked Mr. Ross’s parole and reinstated his prison

sentence.

9

In addition to being charged with violating his parole, criminal charges

were filed against Mr. Ross for failing to report an internet account to the State Police.

For reasons not specified in the record, Mr. Ross’s criminal charges were dismissed.

However, his parole revocation charges regarding an internet account were not dismissed,

and they proceeded to a hearing before the Board.

4

Mr. Ross challenged the Board’s decision to revoke his parole and filed a

Petition for a Writ of Habeas Corpus in the circuit court. The circuit court vacated the

Board’s decision and reinstated Mr. Ross’s release on parole on the following three

grounds: (1) Mr. Ross’s special condition of parole prohibiting his possession or contact

with a computer with internet access was unconstitutional; (2) there was insufficient

evidence that Mr. Ross owned an internet account to report to the State Police; and (3) a

revocation of parole based on simple possession of marijuana violates West Virginia’s

parole laws.10 The State appeals the circuit court’s order and requests that we reinstate

the Board’s decision to revoke Mr. Ross’s parole.11

II.

STANDARD OF REVIEW

The State argues that the circuit court erred in reversing the Board’s

decision to revoke Mr. Ross’s parole. Generally, “[t]he decision to grant or deny parole .

. . shall be reviewed by this Court to determine if the [Parole Board] abused its discretion

10

The State requested and was granted a stay of the circuit court’s order

pending resolution of this appeal. Therefore, Mr. Ross has remained in custody

notwithstanding the circuit court’s order.

11

This appeal was filed by Mr. Ralph Terry, who was the then-acting

Warden of Stevens Correctional Center. Pursuant to Rule 41(c) of the West Virginia

Rules of Appellate Procedure, the current Warden of Stevens Correctional Center, Mr.

R.S. Mutter, has been automatically substituted. However, for the ease of the reader, we

refer to the Warden as “the State” throughout this Opinion.

5

by acting in an arbitrary and capricious fashion.”12 However, to the extent we are called

upon to resolve a constitutional question, our standard of review is de novo.13

III.

ANALYSIS

The Board revoked Mr. Ross’s parole on the following three grounds: (1)

he possessed or had contact with a computer with internet access; (2) he failed to inform

the State Police of an internet account; and (3) he used marijuana. The State argues that

the revocation of Mr. Ross’s parole was constitutional, supported by the evidence in the

record, and in accordance with West Virginia’s parole laws. For the reasons explained

below, we disagree with the State and affirm the circuit court’s order vacating the

Board’s decision to revoke Mr. Ross’s parole.

A. Possession or Contact with a Computer with Internet Access

Mr. Ross argues that the special condition of his parole, which prohibited

him from possessing or having contact with any computer or electronic device with

internet access, was unconstitutional in light of Packingham v. North Carolina, 137 S.Ct.

1730 (2017). In Packingham, the Court held that a state statute which barred registered

12

State ex rel. Stollings v. Haines, 212 W.Va. 45, 47, 569 S.E.2d 121, 123

(2002) (internal quotations and citations omitted).

13

See State ex rel. Corbin v. Haines, 218 W.Va. 315, 320, 624 S.E.2d 752,

757 (2005) (“To the extent Appellant raises constitutional questions, our standard of

review is de novo.”).

6

sex offenders from accessing “social media networking websites”14 was an overbroad

restriction on free speech in violation of the First Amendment.15 Mr. Ross contends that

the special condition of his parole was broader than the statute struck down in

Packingham because it operated as a complete ban on his access to the internet, and

therefore, it too was a violation of the First Amendment.

The First Amendment protects a person’s access to the internet.16 As the

Court in Packingham provided:

A fundamental principle of the First Amendment is

that all persons have access to places where they can speak

and listen, and then, after reflection, speak and listen once

more. . . . While in the past there may have been difficulty in

identifying the most important places (in a spatial sense) for

the exchange of views, today the answer is clear. It is

cyberspace – the vast democratic forums of the internet in

general.17

14

See Packingham, 137 S.Ct. at 1733-34 for North Carolina’s full

definition of “social media networking websites.” The Court noted that North Carolina’s

definition potentially covered websites as varied as Amazon.com, Washingtonpost.com,

and Webmd.com. Id., at 1736.

15

Id., at 1738.

16

Id.; See also Doe v. Kentucky ex rel. Tilley, 2017 WL 4767143 *3

(E.D.K.Y. 2017) (While discussing Packingham, the court stated: “Writing for the

majority, Justice Anthony Kennedy explained that internet use is clearly encompassed by

the First Amendment.”).

17

Packingham, 137 S.Ct. at 1735 (internal quotations and citations

omitted).

7

Therefore, a content neutral law restricting a person’s access to the internet cannot stand

unless it is “narrowly tailored to serve a significant governmental interest.” 18 That is, a

law must not restrict substantially more speech than is necessary to further the

government’s interest.19

In Packingham, the Court acknowledged that the purpose behind the

statute, protecting children from sexual abuse solicited over the internet, was a legitimate

governmental interest.20 Indeed: “The First Amendment permits a State to enact specific,

narrowly tailored laws that prohibit a sex offender from engaging in conduct that often

presages a sexual crime, like contacting a minor or using a website to gather information

about a minor.”21 The State is limited to narrowly tailored restrictions specifically crafted

to “ward off the serious harm that sexual crimes inflict.”22

The fatal flaw with the statute in Packingham was its broad scope: it

prohibited substantially more speech than was necessary to protect children from sexual

abuse solicited over the internet. By barring registered sex offenders from accessing

18

Id., at 1736, quoting McCullen v. Coakley, 134 S.Ct. 2518. Similarly,

this Court has provided as to content-neutral restrictions on free speech that “the

government may enforce regulations restricting the time, place, and manner of expression

if the regulations are narrowly tailored to serve a significant government interest, and

leave open ample alternative channels of communication.” Wheeling Park Comm’n v.

Hotel & Rest. Empl. Int’l Union, 198 W.Va. 215, 222, 479 S.E.2d 876, 883 (1986).

19

Packingham, 137 S.Ct. at 1736.

20

Id.

21

Id., at 1737.

22

Id.

8

social media, the state restricted First Amendment activity that was not likely to lead to

the sexual abuse of a child. As the Court explained:

Social media allows users to gain access to

information and communicate with one another about it on

any subject that might come to mind. . . . By prohibiting sex

offenders from using those websites, North Carolina with one

broad stroke bars access to what for many are the principle

sources for knowing current events, checking ads for

employment, speaking and listening in the modern public

square, and otherwise exploring the vast realms of human

thought and knowledge.23

Accordingly, the Court struck down the statute as a “prohibition unprecedented in the

scope of First Amendment speech it burdens.”24

The special condition of Mr. Ross’s parole restricted more First

Amendment activity than was necessary to protect anyone from misconduct that is a

consequence of internet use. Mr. Ross was not allowed to use, possess, or have contact

with any computer or electronic device with internet access, which necessarily entails

him being prohibited from accessing social media networking websites, as was the case

in Packingham. Thus, Mr. Ross was “bar[red] access to . . . sources for knowing current

events, checking ads for employment, speaking and listening in the modern public

square, and otherwise exploring the vast realms of human thought and knowledge.”25

23

Id.

24

Id.

25

Id.

9

Moreover, the special condition of Mr. Ross’s parole went even further

than the statute struck down in Packingham because he was prohibited from visiting any

website, including sites as varied as Amazon.com, Webmd.com, news sites, or job sites.

The special condition of Mr. Ross’s parole forbade him from receiving an email from an

employer or medical provider, paying a bill online, using the internet to check the

weather, or using a smartphone. If his special condition of parole prohibited him from

being in the same building as a computer with internet access, as the State seems to argue

in its brief,26 Mr. Ross would potentially be excluded from visiting a library, a school,

most brick and mortar stores, and many places of employment.

The State attempts to distinguish this case from Packingham based on the

fact that Mr. Ross is a parolee. It relies on a D.C. Circuit case, United States v. Rock,27 in

which the court upheld a condition of supervised release prohibiting the defendant from

accessing the internet. Applying a plain error analysis, the court found: “The Supreme

Court’s recent decision in Packingham v. North Carolina . . . does not make the error

plain because Rock’s condition is imposed as part of his supervised-release sentence, and

is not a post-custodial restriction of the sort imposed on Packingham.”28 The State argues

26

Although we resolve this issue on constitutional grounds, the parties

argued extensively as to whether Mr. Ross violated the special condition of his parole.

The State argued that, even though there is no evidence Mr. Ross did log on to the

internet during his parole, he could have accessed the internet because he lived in a

residence with an internet-enabled computer.

27

863 F.3d 827 (D.C. 2017).

28

Rock, 863 F.3d at 831.

10

that we should adopt the D.C. Circuit’s analysis in Rock to hold that the Board may

impose an internet ban on a parolee simply because he or she is on parole.

We do not agree with the State that Mr. Ross’s special condition of parole

is constitutional under the court’s analysis in Rock. Rock is distinguishable from this case

because the defendant in Rock used the internet to commit his crime. He installed a

hidden camera in the bedroom of his girlfriend’s eleven-year-old daughter and tried to

distribute images of her naked body online.29 This distinction is supported by the cases

cited by Rock in which the D.C. Circuit decided on supervisory conditions imposing bans

on internet access: in the cited cases where the defendant’s crime was committed

primarily over the internet, the conditions were upheld.30 By contrast, in the case cited by

Rock where the defendant’s crime was not committed primarily over the internet, the

condition was struck down as an overbroad restriction of the defendant’s liberty.31

Likewise, it has been noted that:

29

Id., 863 F.3d at 829.

30

See United States v. Legg, 713 F.3d 1129, 1132 (D.C. Cir. 2013)

(providing, as to condition of supervised release imposed on defendant who used the

internet to solicit sex from minor, that: “this court has stated that such limitations [on a

defendant’s internet use] may be appropriate for those who use the Internet to initiate or

facilitate the victimization of children.”) (internal quotations and citations omitted);

United States v. Accardi, 669 F.3d 340, 347-48 (D.C. Cir. 2012) (defendant used internet

to distribute child pornography); United States v. Laureys, 653 F.3d 27, 31 (D.C. Cir.

2011) (defendant tried to solicit sex with child online); United States v. Love, 593 F.3d 1,

4 (D.C. Cir. 2010) (defendant traded child pornography with people he met online);

United States v. Sullivan, 451 F.3d 884, 885 (D.C. Cir. 2006) (defendant possessed child

porn on his computer).

31

United States v. Malenya, 736 F.3d 554 (D.C. Cir. 2013) (defendant

knowingly solicited sex with a minor primarily over text message).

11

[C]ourts have upheld conditions prohibiting all use of

the Internet only in limited circumstances. Thus far, such

conditions have been permitted in one of two scenarios: when

use of the Internet was ‘essential’ or ‘integral’ to the offense

of conviction, or when ... the defendant had a history of using

the Internet to commit other offenses.32

One court, relying on Packingham, has held that a condition of parole prohibiting access

to the internet violated the First Amendment, noting that: “none of [the defendant’s]

convictions, each of which occurred at least twenty years ago, involved the use of the

internet or social media.”33

We recognize that “a person placed on parole . . . has substantial restraints

on his freedom[,]”34 but “[t]his does not mean . . . that a parolee or probationer is not

entitled to any constitutional rights whatsoever[.]”35 Packingham is clear that a

32

United States v. LaCoste, 821 F.3d 1187, 1191 (9th Cir. 2016). See also

See United States v. Ramos, 763 F.3d 45, 62 (1st Cir. 2014) (“[C]ases in other circuits are

in general accord: where a defendant’s offense did not involve the use of the internet or a

computer, and he did not have a history of impermissible internet or computer use, courts

have vacated broad internet and computer bans regardless of probation’s leeway in being

able to grant exceptions.”); United States v. Smathers, 351 Fed.Appx. 801, 802 (4th Cir.

2009) (invalidating supervisory condition restricting defendant’s internet access because

“Smathers’s crime did not involve a computer or the Internet. Nor is there any evidence

that Smathers has a history of using the computer or Internet to obtain or disseminate

child pornography.”); United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005)

(Condition of supervised release imposing ban on defendant’s internet access violated the

First Amendment because, “[a]lthough Mr. Crume has a lengthy history of grievous

sexual misconduct, the record is devoid of evidence that he has ever used his computer

for anything beyond simply possessing child pornography.”).

33

Manning v. Powers, 2017 WL 6512228 at *4 (C.D. Cal. 2017).

34

Conner v. Griffith, 160 W.Va. 680, 686, 238 S.E.2d 529, 532 (1977).

35

State ex rel. Eads v. Duncil, 196 W.Va. 604, 609, 474 S.E.2d 534, 539

(1996).

12

government restriction on internet access must be narrowly tailored so as not to burden

more speech than is necessary to further the government’s legitimate interests. On this

well-established rule, Packingham made no exception for parolees. Thus, we decline to

accept the State’s argument that Mr. Ross’s status as a parolee, by itself, renders his

special condition of parole constitutional.

Therefore, we now hold that, generally, under Packingham v. North

Carolina, 137 S.Ct. 1730 (2017), a parole condition imposing a complete ban on a

parolee’s use of the internet impermissibly restricts lawful speech in violation of the First

Amendment to the United States Constitution. There are instances, however, where the

West Virginia Parole Board has a legitimate interest in restricting a parolee’s access to

the internet. The restrictions must be narrowly tailored so as to not burden substantially

more speech than is necessary to further the government’s legitimate interests.36

Mr. Ross’s underlying offense did not involve the internet, and he has no

history of using the internet to engage in criminal behavior. Moreover, the State has

provided no explanation as to how a sweeping ban on Mr. Ross’s internet access would

36

Our decision today does not affect the validity of the pre-Packingham

case, State v. Hargus, 232 W.Va. 735, 753 S.E.2d 893 (2013). In Hargus, we upheld a

condition of supervised release prohibiting a sex offender who was convicted of child

pornography from residing in the same house as a computer. We explained that: “there is

good reason to restrict Mr. Hargus’s computer and Internet usage in his own home: Mr.

Hargus has shown a propensity for downloading sexually explicit material involving

minors onto his computer, and such material may be accessed more easily in the privacy

of a home.” Id. at 746 (emphasis added). Hargus remains valid law because the

following two circumstances were present in that case: (1) his underlying offense

involved the internet; and (2) he had a history of using the internet to engage in criminal

behavior.

13

protect anyone from misconduct that might result from his internet use or why the State’s

legitimate interests could not be furthered through less restrictive means, such as

computer monitoring.37 Yet, the State imposed a condition of parole prohibiting him

from possessing or using any computer or device with internet access. The special

condition of parole is clearly unconstitutional in light of the Supreme Court’s ruling in

Packingham. Thus, it cannot serve as a basis for Mr. Ross’s parole revocation.38

B. Failure to Inform the State Police Regarding an Internet Account

The Board also found that Mr. Ross failed to inform the State Police of an

internet account. We have held that, “[t]he West Virginia Board of Probation and Parole

must obey legislation and must act in a way which is not unreasonable, capricious, or

37

See United States v. Browder, 866 F.3d 504, 512 (2d Cir. 2017)

(distinguishing condition of supervised release requiring defendant to submit to computer

monitoring, which the court held was constitutional, from a condition imposing an

internet ban). Our decision today does not affect the validity of a supervisory condition

requiring the defendant to submit to computer monitoring.

38

Before disposing of this issue, we note the State’s argument that the

special condition of Mr. Ross’s parole does not run afoul of Packingham because it

allowed Mr. Ross to access the internet after obtaining permission from his parole

officer. We disagree. As explained by the District Court of Maryland in its consideration

of a similar supervisory condition after Packingham: “the fact that Defendant may use the

Internet if he obtains prior written approval from his probation officer cannot salvage this

otherwise overly broad restriction.” United States v. Maxson, 2017 WL 6206044 *4 (D.

Md. 2017) (citing United States v. LaCoste, 821 F.3d 1187, 1192 (9th Cir. 2016) (“If a

total ban on Internet use is improper but a more narrowly tailored restriction would be

justified, the solution is to have the district court itself fashion the terms of that narrower

restriction. Imposing a total ban and transferring open-ended discretion to the probation

officer to authorize needed exceptions is not a permissible alternative.”), and United

States v. Ramos, 763 F.3d 45, 61 (1st Cir. 2014) (“This authority of probation or a future

court to modify a sweeping ban on computer or internet use does not immunize the ban

from an inquiry that evaluates the justification for the ban in the first instance.”)).

14

arbitrary.”39 That is, there must be “some evidence in the record to support the Board’s

decision.”40

The State presented no evidence that Mr. Ross owned any internet account

while he was released on parole. Moreover, there is also no indication in the record that

he logged onto the internet while he was released on parole. Finally, it is undisputed that

Mr. Ross did not use, possess, or have physical contact with the computer in question,

which belonged to his girlfriend, M.W. After reviewing the record, we find that there

was no evidence presented which supports the Board’s finding that Mr. Ross was guilty

of failing to report an internet account to the State Police. Therefore, the Board’s

decision on this charge was arbitrary and capricious.

C. Mr. Ross’s Admitted Use of Marijuana

Mr. Ross pled guilty to three counts of using marijuana. Accordingly, the

Board issued an order revoking his parole and reinstating his prison sentence. The

Board’s order did not contain any written statement explaining why revocation of Mr.

Ross’s parole, as opposed to a lesser penalty, was warranted. Mr. Ross has remained in

jail for more than three years, since December 2014, due, in part, to him using marijuana.

To resolve whether the Board erred by revoking Mr. Ross’s parole based on

his marijuana use, we turn to West Virginia Code § 62-12-19 [2013]. In analyzing a

statute, it is well-established that: “[w]e look first to the statute’s language. If the text,

39

Syl. Pt. 3, State ex rel. Eads, 196 W.Va. 604, 474 S.E.2d 534.

40

Southern v. Burgess, 198 W.Va. 518, 521, 482 S.E.2d 135, 138 (1996).

15

given its plain meaning, answers the interpretive question, the language must prevail and

further inquiry is foreclosed.”41

In West Virginia Code § 62-12-19(a)(2)(A), the Legislature provided that

the Board may revoke a parolee’s release on parole if he or she “committed new criminal

conduct other than a minor traffic violation or simple possession of a controlled

substance[.]”42 Thus, under the plain language of West Virginia Code § 62-12-

19(a)(2)(A), simple possession of a controlled substance (like marijuana) is excepted

from the general provision that the Board may revoke parole for new criminal conduct.

The Legislature prescribed a lesser penalty for a parole violation involving

simple possession of a controlled substance, like marijuana; West Virginia Code § 62-12-

19(a)(2)(B) provides that:

If the Parole Board panel finds that . . . the parolee has

violated a condition of release or supervision other than the

conditions of parole set forth in subparagraph (A),

subdivision (2) of this subsection, the panel shall require the

parolee to serve, for the first violation, a period of

confinement up to sixty days or, for the second violation, a

period of confinement up to one hundred twenty days unless

the Parole Board makes specific written findings of fact that a

departure from the specific limitations of this paragraph is

warranted[.]43

41

Appalachian Power Co. v. State Tax Dep’t of W.Va., 195 W.Va. 573,

587, 466 S.E.2d 424, 438 (1995).

42

Emphasis added.

43

Emphasis and footnote added.

16

Therefore, West Virginia Code § 62-12-19(a)(2)(A)-(B) makes two points

clear: (1) simple possession of a controlled substance is excepted from the general

provision that the Board may revoke parole for new criminal conduct; and (2) the

appropriate penalty for a parole violation involving simple possession of a controlled

substance is sixty days in confinement for a first offense and one hundred twenty days in

confinement for a second offense unless the Board makes specific written findings of fact

that a different penalty is warranted.

The State argues that we should construe West Virginia § 62-12-

19(a)(2)(A)-(B) to allow the revocation of Mr. Ross’s parole because he used marijuana

three times. We disagree. The State’s argument ignores the plain language of West

Virginia Code § 62-12-19(a)(2)(A), which clearly states that the Board may revoke

parole for new criminal conduct “other than a . . . simple possession of a controlled

substance[.]”44 (Emphasis added). Moreover, the lesser penalties prescribed by the

Legislature in West Virginia Code § 62-19-12(a)(2)(B) may be departed from only if the

Board makes specific written findings of fact that another penalty is warranted. As we

have held: “A statutory provision which is clear and unambiguous and plainly expresses

the legislative intent will not be interpreted by the courts but will be given full force and

effect.”45

44

Emphasis added.

45

Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).

17

Despite the clear directives of West Virginia Code § 62-12-19(a)(2)(A)-(B),

the Board revoked Mr. Ross’s parole for simple possession of marijuana without making

a specific written finding of fact stating why it was departing from the lesser penalties

provided in West Virginia Code § 62-12-19(a)(2)(A)-(B). As a result, Mr. Ross has

remained in jail for more than three years since the revocation of his parole.

The circuit court did not err by finding that the Board’s decision to revoke

Mr. Ross’s parole was contrary to West Virginia’s parole laws. We affirm the circuit

court.

IV.

CONCLUSION

The Board’s decision to revoke Mr. Ross’s parole was unconstitutional

under Packingham v. North Carolina. It was also without support from the evidence in

the record and contrary to West Virginia’s parole laws. Therefore, we affirm the circuit

court’s order vacating the Board’s decision and reinstating his release on parole.

Affirmed.

18