by Ron Gregory
CHARLESTON — The West Virginia Supreme Court has refused to issue an emergency show cause petition for a writ of prohibition in a Mingo County case.
The court ruled, on June 5, against Brandon White’s motion to grant an emergency writ of mandamus. At issue was the apparently unilateral revocation of White’s home confinement sentence from last year. In an odd twist, Prosecutor Jonathan “Duke” Jewell and the public defender, William Duty, found themselves on the same side in the matter. Ordinarily, prosecutors, representing the state, side with circuit judges.
In the ruling, the court declared “that a rule should not be awarded, and the writ prayed for by the petitioner (White) is hereby refused. It said Justice Robin Davis would have issued a rule to show cause.
After Duty filed his motion on behalf of White, Jewell a response in which he supported assertions by White’s counsel. In his narrative, Jewell said that an “Order Revoking Home Confinement” was signed by Thompson on May 30. “The Mingo County Prosecuting Attorney did not prepare or sign said Order,” Jewell wrote.
“Upon receiving a copy of the order and information that a hearing was being held on May 31, 2017, (Jewell) spoke with the Mingo County Home Confinement office and also with defendant/petitioner … White’s counsel. Thereafter, I concluded that Brandon White had not violated the rules of home confinement and I therefore made the decision to not prosecute or pursue any home confinement violation” regarding White.
At the May 31 hearing, Jewell said he informed Thompson that he had not filed a petition seeking revocation of White’s home confinement and did not intend to file such a petition. Further, he said he told the judge he did not intend to present any witnesses nor evidence in support of the revocation.
“The court then remanded … White to the Southwestern Regional Jail to await a hearing on June 2, 2017 at 10 a.m. In the interim, the Emergency Petition for Writ of Prohibition was filed and a scheduling order was made and entered by the … Supreme Court,” Jewell wrote.
“The State of West Virginia, by … the Mingo County Prosecuting Attorney, has determined that there is no good faith for the prosecution/state to seek a revocation” of White’s home confinement, Jewell said. “Therefore, the state would join (White) in his request for immediate release from incarceration at the Southwestern Regional Jail pending the resolution of this matter.”
In her response, Thompson basically insisted that she received information from another party that White violated the terms of his home confinement. According to the original petition filed by Duty, this amounted Thompson serving as both “judge and jury,” but the court majority apparently did not agree.
In her argument against the petition and oral arguments in the matter, the judge wrote, “the petition is not appropriate for review and the lower court did not clearly err as a matter of law during the hearing on May 31.”
Thompson goes on to assert that White pleaded guilty to attempted delivery of a Schedule III controlled substance (suboxone) on August 22 of last year. He was sentenced, the jury said, to 12 months of electronic home confinement.
“On May 23,” Thompson wrote, “the (circuit court) entered an Order Revoking Home Confinement after said order was tendered to said court and alleging ‘(White) was given a random drug screen on May 16, 2017, with the results showing diluted. This was (White’s) second alleged violation of home confinement.”
Based upon a hearing conducted May 24, Thompson said she placed White “back on electronic home confinement and instructed (him) and the home confinement department that at no time should (White) be out of range or violate any other terms or conditions.”
Two days later, Thompson wrote, “upon information presented to the lower court, (White) was allegedly out of range for 19 minutes.” The judge provided an exhibit apparently showing that White was out of range of electronic monitoring from 6:01 to 6:20 p.m., May 26. She added that Kevin Wilson, director of the Mingo Home Confinement Department, was present at the May 31 hearing and testified that White was out of range for the 19-minute span. She said that, although Jewell did not want to proceed with the revocation, the home confinement department did. As a result of the hearing, Thompson said she remanded White to the regional jail.
The judge argued that White has not been sentenced beyond the original sentence against him and has been afforded expedited access to her court calendar.
Thompson acknowledged that this case is unusual when she added, “the lack of case law regarding this topic is indicative of the rarity of such circumstances becoming an issue.” She acknowledged that the case is one of “first impression.”