Clarifying “Absconding” as Justification for Full Probation Revocation Under W. Va. Code § 62-12-10

Introduction

In State of West Virginia v. Cornell Lee Smith, Supreme Court of Appeals of West Virginia, No. 23-300, decided May 28, 2025, the court addressed for the first time in a precedential opinion the scope of “absconding supervision” under West Virginia Code § 62-12-10(a)(1)(A) and the circuit court’s discretion to revoke a probationer’s entire suspended sentence rather than imposing a 60-day confinement for a first non-absconding violation. Cornell Lee Smith, the petitioner, had pled guilty to multiple offenses and received a sentence for “failure to appear” that was suspended upon his release, subject to five years of supervised probation. The key issue on appeal was whether his unexcused failure to report to the probation office—while he did report to parole supervision—constituted “absconding” and therefore justified full revocation of his suspended sentence.

Summary of the Judgment

The Supreme Court of Appeals, in a unanimous memorandum decision, affirmed the Randolph County Circuit Court’s revocation order. The court held:

Smith had stipulated—and the record confirmed—that he never reported to the Randolph County Probation Office after his parole. Although he did report to parole authorities, probation is a separate supervisory scheme, and compliance with parole does not satisfy probation reporting requirements.
The sentencing order was clear: the “failure to appear” sentence was suspended pending five years of supervised probation upon release from prison, which required reporting to the county probation office.
His failure to report constituted “absconding supervision” under W. Va. Code § 62-12-10(a)(1)(A), allowing the circuit court to revoke the entire suspended sentence rather than impose a 60-day confinement reserved for other first-time violations.
The court applied a three-pronged standard of review: abuse of discretion for the revocation decision, clearly erroneous for factual findings, and de novo for questions of law—and found no reversible error.

Analysis

Precedents Cited

The decision rests on established West Virginia authorities distinguishing probation from parole and on statutory construction principles:

State v. Duke, 200 W. Va. 356, 489 S.E.2d 738 (1997): Sets forth the three-pronged standard of review for probation revocation orders—abuse of discretion for the decision to revoke, clearly erroneous for factual findings, and de novo for legal questions.
Jett v. Leverette, 162 W. Va. 140, 247 S.E.2d 469 (1978): Clarifies that probation is a judicial function under the circuit court’s authority, whereas parole is an executive function governed by the Parole Board.
State v. Rose, 156 W. Va. 342, 192 S.E.2d 884 (1972): Emphasizes that probation is “a matter of grace and not a matter of right,” giving courts broad discretion to revoke.

Legal Reasoning

The court’s reasoning proceeds in several steps:

Separate Supervisory Schemes: It contrasted the statutory frameworks of parole (W. Va. Code §§ 15A-4-17; 62-12-13) and probation (W. Va. Code § 62-12-6), noting that compliance with one does not relieve obligations under the other.
Statutory Interpretation of “Absconded Supervision”: Under § 62-12-10(a)(1)(A), a court may revoke the full suspended sentence if there is reasonable cause to believe a probationer “absconded supervision.” Smith’s complete failure to report—despite acknowledging receipt of the sentencing order and hearing the judge’s instructions—fell squarely within that definition.
Discretion in Sentencing: Because “absconding” is listed among the serious violations in subsection (1), the statute vests the trial court with authority to revoke the entire suspension. The 60-day confinement cap applies only to lesser, first-time violations under subsection (2).
Clarity of Sentencing Order: The court rejected Smith’s claim of ambiguity in the March 19, 2020 sentencing order, finding the probation requirement clearly stated in writing and orally announced.

Impact

This decision underscores several principles that will guide future probation revocation proceedings in West Virginia:

Strict Compliance with Reporting: Probationers must follow the precise terms of their sentencing orders—and cannot rely on parole reporting to satisfy probation requirements.
Broad Discretion for Courts: Judicial grace in granting probation carries the risk of full revocation for serious infractions such as absconding, reinforcing that probation is not a right.
Statutory Categories of Violations: Practitioners should carefully distinguish between absconding or new criminal conduct (subsection (1) grounds) versus lesser technical violations (subsection (2)) to anticipate potential sanctions.
Emphasis on Clear Orders: Sentencing courts will likely take extra steps to ensure probation conditions are unambiguous and documented to avoid claims of misunderstanding.

Complex Concepts Simplified

Probation vs. Parole: Probation is a judicially imposed alternative to incarceration, supervised by court-appointed probation officers. Parole is an early release mechanism managed by the executive branch’s Parole Board. They operate under different statutes and agencies; compliance with one does not excuse non-compliance with the other.

Absconding Supervision: A probationer “absconds” when he or she intentionally avoids or fails to report to the probation officer as ordered, without lawful excuse. It is considered a serious violation permitting full revocation of a suspended sentence under § 62-12-10(a)(1)(A).

Standards of Review:

Abuse of discretion—used to review whether the trial court reasonably exercised its decision-making power in revoking probation.
Clearly erroneous—used to evaluate underlying factual findings (e.g., did the defendant actually abscond?).
De novo—used for pure legal questions, such as statutory interpretation.

Conclusion

State of West Virginia v. Cornell Lee Smith firmly establishes that an unexcused failure to report to a probation office—despite compliance with parole requirements—constitutes “absconding supervision” under W. Va. Code § 62-12-10(a)(1)(A). By affirming the full revocation of Smith’s suspended sentence, the Supreme Court of Appeals reaffirms the judiciary’s broad discretion to enforce probation conditions strictly, reinforcing the maxim that probation is a privilege, not a right. Moving forward, sentencing judges, probation officers, and defense attorneys must ensure that probation terms are crystal-clear and that probationers understand the separate obligations they owe to both the court and the Parole Board.