Devon Woodward Appeal - Supervised Release Revocation

1 STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS State of West Virginia, Plaintiff Below, Respondent v.) No. 24-2 (Jefferson County CC-19-2018-F-27) Devon Woodward, Defendant Below, Petitioner MEMORANDUM DECISION Petitioner Devon Woodward appeals the December 4, 2023, order entered by the Circuit Court of Jefferson Count y that revoked his supervised release. 1 On appeal, the petiti oner argues that his sentence is constitutionally disproportionate. Upon our review, finding no substantial question of law and no prejudicial error, we determine oral argum ent is unnecessary and that a memorandum decision is appropriate. See W. Va. R. App. P. 21(c). In July 2018, the petitioner pled guilty to one count of third-de gree sexual assault, 2 and he was sentenced to one to five years of imprisonment and five years of supervised release. The petitioner was released from prison in January 2022 after serving his underlying sentence. In December 2022, the State filed a petition to re voke t he p etitioner’s supervised release, alleging that he was arrested for fishing without a li cense in May 2022; assault and brandishing a deadly weapon in November 2022; and first-o ffense driving under the influence (DUI), failure to maintain lane, and driving without an operator’s license in December 2022. After holding a hearing on t he petition in February 2023, the circuit court revoked the petitioner’s supervised release and imposed one year of imp risonment with credit for ti me served. The petitioner was released from jail in June 2023 after serving approximately six months of imprisonment for that violation. 1 The petitioner appe ars by counsel Michael Santa Bar bara. The State appears by Attorney General John B. McCuskey and Deputy Attorney General Andrea Nease. Bec ause a new Attorney General took office while this appeal was pending, his name has been substituted as counsel. 2 See W. V a. Code § 61-8B-5(a)(2) (providing that a person is guilty of t hird-degree sexual assault “when... th e person being 16 years old or more, engages in s exual int ercourse or sexual intrusion with another person who is less than 16 years old and who is at l east four years younger than the defendant”). FILED February 18, 2026 C. CASEY FORBE S, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

2 In October 2023, the S tate filed a second petiti on to revoke supervised rel ease after th e petitioner’s arrest in September 2023 for spee ding in a school zone and driving with a license that was revoked for DUI. At a hearing on the petition held in December 2023, the petitioner admitted the allegations in th e se cond revocation petition. The petitioner’s probation officer, James Tesh, testified that he had supervised the petiti oner for approximately two years and characterized the petitioner as one of his “problem children comp ared to the other people I su pervise.” Mr. Tesh also stated that the petitioner “really needs to get his life together[,]” and he was “no longer amenable to supervised relea se” because “ he’s a danger to the community[.]” Mr. Te sh stated that “since [the petit ioner has] been under my supervision it’s a constant struggl e trying to get him to stay employed at one sp ot.” On cross-examinati on, Mr. Tesh admitted that the petitioner had completed anger management classes, provided negative drug screens, and had attended therapy, but “[n]ot as frequently as he sh ould[.]” Mr. Tesh also admitted that the pet itioner turned himself in t o authorities after t he second petition was filed. After hearing the arguments of counsel, the court sentenced the petitioner to five years of imprisonment with 250 days’ credit for time served. The petitioner now appeals. In his si ngle assignment of error, the petitioner argues that t he circuit court erred in sentencing him to five yea rs of imprisonment with 250 days’ credit for time served after revoking his supervised release pursuant to West Virginia Code § 62-12-26, which provides, in relevant part: (a) N otwithstanding any other provision of this c ode to the c ontrary, any defendant convicted after the effective date of this section of a violation of section twelve, article eight, chapter sixt y-one of this code or a felony violation of the provisions of article eight-b... shall, as part of the sentence im posed at final di sposition, be required to serve, in additi on to any other penalty or condition imposed by the court, a period of supervised release of up to fifty years[;]. . . . (g) The court may:. . . . (3) Revoke a te rm of supervised release a nd require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on supervised release if the court, p ursuant to the West Virginia Rules of C riminal Procedure applicable t o revocation of probation, finds by clear and convincing evidence that the defendant violated a condition of su pervised release, except that a defendant whose t erm is revoked under this subdivi sion m ay not be requi red to serve more than the period of supervised release[.] The petitioner does not challenge the circuit court’s finding that he violated the terms of supervised release, nor does he dispute that t hose violations warranted revocation; instead, the petitioner asserts that the length of the cou rt’s revocation sentence was excessive and

3 disproportionate to the nature of his supervised release violations. He contends t hat imposition of such a sentence is prohibited by Article III, Section 5 of the West Virginia Constitut ion. When reviewing an order modifying or revoking a defendant’s supervised release under West Virginia Code § 62-12-26(h), w e apply a thre e-pronged standard of review. W e r eview the circuit court’s fi nal order and d ecision to modify or revok e a de fendant’s supervised r elease und er an abuse of discretion st andard; we review challenges to findi ngs of fact under a clearly erroneous standard; and we review questions of law and interpretations of statutes de novo. Syl. Pt. 1, State v. White, 249 W. Va. 532, 896 S.E.2d 698 (2023). Similarly, we review “sentencing orders. . . un der a d eferential abuse of discretion standard, unless the order violates statutory or constitutional commands.” Syl. Pt. 1, i n part, State v. Lucas, 201 W. Va. 271, 496 S.E.2d 221 (1997). “Where the issue involves t he application of constitutional protections, our review is de novo.” State v. Patrick C., 243 W. Va. 258, 261, 843 S.E.2d 510, 513 (2020) (citations omitted). Furthermore, “Article III, S ection 5 of the West Virginia Constitution, which contains the cruel and unusu al punishment counterpart to the Eighth Amendment of the United States Constit ution, has an express statement of t he proportionality principle: ‘Penalties sh all be propo rtioned to th e character and degree of the offence.’” Syl. Pt. 8, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980). We ordina rily limit proportionality reviews to sentences “where ther e is either no fixed maximum set by statute or where there is a life recidivi st sentence.” Syl. Pt. 4, in part, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981). However, we often review su pervised release senten ces for proportionality. See, e.g., State v. Brautigam, ___ W. Va. __, _, 922 S.E.2d 764, 770 (2025). Like our other proportionality reviews, we apply two t ests to evaluate the proportionality of a sent ence issued upon t he revocation of supervised release. Id. at _, 922 S.E.2d at 770-71. “The first i s subjective and asks whether the sentence for t he particu lar crime shocks the conscience of t he court and society. If a sentence is so offensive that it cannot pass a societal and judicial sense of justice, the inquiry need not proceed further.” State v. Cooper, 172 W. Va. 266, 272, 304 S.E.2d 851, 857 (1983). The s econd i s an obje ctive inquiry, re quiring us to give consideration “to the nature of t he off ense, the legislative purpose behind the punishment, a comparison of the punishm ent with what would be inflicted in ot her jurisdictions, and a comparison with other offense s within the same jurisdiction.” Id. (quoting Wanstreet, 166 W. V a. at 523-24, 276 S.E.2d at 207, Syl. Pt. 5, in part). When considering these two tests, we bear in mind the relation of the purposes of supervised release—including rehabilit ation, conditional liberty, and the protection of society—to the corresponding breach of t he court’s trust by a defendant and the resulting revocation term of imprisonment. See Brautigam, __ W. V a. at ___, 922 S.E.2d at 771-72 (discussing the purposes of supervised release). And, when considering the purposes of supervised r elease, alongside the petitioner’s actions while on supervised release that resulted in multiple revocations, here we find that the circuit court’s s entence of five years of imprisonment resulting from the second revocation was not disproportionate under either test.

4 For the subjective test, this Court examines whether the sentence is “ so disproportionate to the crime” that “it shocks the conscience and offends fundament al notions of human dignity” compared to the “character and degree of an offense.” C ooper, 172 W. Va. at 267-68, 304 S.E.2d at 852, Syl. Pt. 5, in part. Here, t he petitioner’s revocation sentence is not subjectively disproportionate because it does not shock th e conscience. S ee id. Following his original conviction for third-degree sexual assault, which gave rise to his term of supervised release, the circuit court gave t he petitioner multiple cha nces to comply with the supervised r elease requirements. The court imposed a lenient term of imprisonment after his first revocation, where the court found he violated multiple terms of his supervised release, in cluding driving without a license and threatening a group of people with a knife, which breached t he court’s trust. After his release from the first revocation term of imprisonment, he again demonstrated an inability to comply with the terms of his supervised release. The petitioner violated the conditions of his supervised releas e by driving on a suspend ed license and speeding in a sc hool zone, shortly after his earlier revocation which had been in part ba sed on a sim ilar traffic offense, thus failing to “demonstrate his ability t o reha bilitate and safely reenter society.” Brauti gam, ___ W. Va. at ___, 922 S.E.2d at 773. His a ctions “demonstrate his continued inability to conform his beh avior on supervised release to the circuit c ourt’s requirements.” Id. Given the p etitioner’s continuing violations and multiple breac hes of the court’s trust, the court’s sentence does not shock the conscience. To determine whether a sentence is objectively disproportionate, we consider the “nature of the offense” and “the legislative purpose behind the punishment,” and compare the punishment “with what would be inflicted in other jurisdictions,” and “with other offenses within the same jurisdiction.” Wanstreet, 166 W. Va. at 523-24, 276 S.E.2d at 207, Syl. Pt. 5, in pa rt. The petitioner argues that his sentence is disproportionate be cause the revocation i s based upon what he characterizes as “minor traffic offenses.” The peti tioner also contends that the maximum penalty for causing bodily injury while driving under the in fluence is one year of imprisonment, see W. Va. Code § 17C-5-2(d), and t hat the penalties for speeding and driving revoked for DUI i n Virginia, Maryland, and Pennsylvania are like those in West Virginia. However, these comparisons are not relevant to determining whether the petitioner’s sentence was constitutionally proportionate because the p etitioner does not analyze these offenses in the cont ext of supervised re lease violations. Instead, applying the Wanstreet fac tors here, we consider the defendant’s violations of the terms and conditions of supervised r elease and corresponding breach of the court’s trust when evaluating the resul ting revocation sentence. See Brautigam, __ W. Va. at ___, 922 S.E.2d at 773-74. The petiti oner’s history of noncompliance wit h the conditi ons of supervised release is analogous to other cases in which we af firmed longer terms of imprisonment upon revocation after multiple breaches of the courts’ trust. See St ate v. Payne, No. 17-0195, 201 8 WL 1444287, at *4- 5 (W. Va. Mar. 23, 2018) (memorandum deci sion) (affirming a twen ty-four-year sentence following supervised release r evocation); State v. Winni ng, No. 17-0921, 2018 WL 4944416, at *3-4 (W. Va. Oct. 12, 2018) (memorandum decision) (affirming a twenty-year sente nce following supervised release revocation). Considering the pur pose of supervised release and other revocation sentences in West Virginia, the petit ioner’s sentence was not objectively disproportionate. Therefore, we find tha t the circ uit court did not abuse its discretion when sentencing him to a f ive- year term of imprisonment upon the revocation of his supervised release.

5 For the reasons stated, we affirm. Affirmed. ISSUED: February 18, 2026 CONCURRED IN BY: Chief Justice C. Haley Bunn Justice William R. Wooton Justice Charles S. Trump IV Justice Thomas H. Ewing Justice Gerald M. Titus III