IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
Fall 2026 Term
FILED
_____________________ October 28, 2026
released at 3:00 p.m.
No. 24-115 C. CASEY FORBES, CLERK
_____________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
v.
JEREMY JARRETT,
Defendant Below, Petitioner.
Appeal from the Circuit Court of Kanawha County
The Honorable Jennifer F. Bailey, Judge
Case No. 09-F-497
AFFIRMED, IN PART, REVERSED, IN PART
AND REMANDED
Submitted: September 8, 2026
Filed: October 28, 2026
Tyler Keller, Esq. John B. McCuskey, Esq.
Public Defender Services Attorney General
Appellate Advocacy Division Michael R. Williams, Esq. Charleston, West Virginia Solicitor General
Counsel for Petitioner Office of the Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE FLANIGAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “When reviewing an order modifying or revoking a defendant’s
supervised release under West Virginia Code § 62-12-26(h), we apply a three-pronged
standard of review. We review the circuit court’s final order and decision to modify or
revoke a defendant’s supervised release under an abuse of discretion standard; we review
challenges to findings 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).
2. “Conditions of probation which are established or modified in the
absence of either the accused or his counsel are void and unenforceable.” Syl. Pt. 5, Louk
v. Haynes, 159 W. Va. 482, 223 S.E.2d 780 (1976).
3. A general condition of supervised release requiring a probationer to
comply with the rules of supervision and the orders or directives of a supervising probation
officer authorizes the officer to administer, implement, and enforce the conditions imposed
by the sentencing court. It does not authorize a probation officer to substantively enlarge
the conditions of supervised release by imposing a new restriction that materially expands
the restraints on the probationer’s liberty beyond those imposed by the court. A condition
so enlarged is void and unenforceable unless it is imposed by the circuit court after a
i
hearing at which the probationer is afforded the assistance of counsel, consistent with West
Virginia Code § 62-12-26 and Rule 32.1(b) of the West Virginia Rules of Criminal
Procedure.
4. A probationer who, as a condition of supervised release under West
Virginia Code § 62-12-9(a)(4), is prohibited from residing with or exercising visitation
with a minor child, and who petitions to modify that condition, bears the burden of
demonstrating that the modification is in the best interest of the child.
ii
FLANIGAN, Justice:
Petitioner Jeremy Jarrett appeals the Circuit Court of Kanawha County’s
February 2, 2024, order revoking his supervised release, sentencing him to a four-year term
of imprisonment, and denying his motion to modify the conditions of his supervised release
to allow him to have contact with his newborn daughter. In this appeal, Mr. Jarrett argues
that the circuit court erred because (1) the probation officer enlarged the conditions of his
supervised release by imposing supplemental conditions without affording him counsel or
a hearing, in violation of West Virginia Code § 62-12-26, Rule 32.1 of the West Virginia
Rules of Criminal Procedure, and due process; (2) certain supplemental conditions of his
supervised release are void for vagueness; and (3) the State failed to present sufficient
evidence to support the revocation. Mr. Jarrett also claims that the circuit court abused its
discretion when it denied his motion to have contact with his newborn daughter.
For reasons set forth below, we hold that the circuit court erred when it
revoked Mr. Jarrett’s supervised release based on violations of supplemental conditions
provided to him by a probation officer that amounted to substantive enlargements of the
circuit court’s previously imposed conditions, without a hearing or assistance of counsel.
However, we conclude that the circuit court did not abuse its discretion when it denied Mr.
Jarrett’s motion to modify the conditions of his supervised release to allow him to have
contact with his daughter. Consequently, we affirm in part, reverse in part, and remand this
case for further proceedings consistent with this opinion.
1
I. FACTS AND PROCEDURAL BACKGROUND
In 2009, a Kanawha County grand jury charged Jeremy Jarrett with four
counts of first-degree sexual abuse and one count of first-degree sexual assault. In 2010,
Mr. Jarrett pleaded guilty to two counts of first-degree sexual abuse.1 His victim was a
nine-year-old girl; Mr. Jarrett was eighteen years old at the time of the crimes.
In April 2011, the circuit court sentenced Mr. Jarrett to consecutive terms of
one to five years of imprisonment for each count plus fifty years of supervised release and
entered an Order of Notification of Supervised Release (“2011 Order”) containing twentyseven paragraphs of conditions. The circuit court explained the conditions in open court,
gave Mr. Jarrett a written copy that he signed, and directed defense counsel to review the
terms with him. Under the terms of the 2011 Order, Mr. Jarrett was required to “comply
with the rules of supervision and other regulations of the Court and any orders or directives
of the supervising officer.” The 2011 Order’s child-related restrictions barred employment
or home services involving anyone under eighteen, relationships with anyone under
eighteen, residing where a child under sixteen lives, and residing or working within 1,000
feet of a school, childcare facility, or the victim’s residence.
1
W. Va. Code § 61-8B-7.
2
Mr. Jarrett was discharged from his term of imprisonment in February 2014
and began his fifty-year term of supervised release. Mr. Jarrett’s supervising probation
officer provided him with three additional documents—Sex Offender Conditions,
Definitions of Terms Regarding Contact with Minors, and Computer Use Conditions. Mr.
Jarrett acknowledged and initialed that he was subject to several conditions regarding his
contact with minors, including that he was prohibited from (1) living in the same residence
as a minor, exercising visitation with a minor, or having any contact with the victim; (2)
being present at or within two blocks of any park, school, playground, swimming pool,
daycare center, or other specific location where children are known to congregate unless
approved by his probation officer; and (3) engaging in a dating, intimate, or sexual
relationship with any person who has children under the age of eighteen. Mr. Jarrett was
also required to report any incidental contact with minors within twenty-four hours.
Contact with minors was defined to include “proximity contact” or “[b]eing in the
geographic proximity of a minor where verbal and/or non-verbal communication could be
established,” (“2014 Terms”).
In 2014, Mr. Jarrett violated the terms of his supervised release by having
incidental contact with a minor,2 and failing to report a cell phone. The circuit court
revoked his supervised release and imposed a term of five years of imprisonment. It further
2
Mr. Jarrett talked to a teenage girl, followed her into a store, and admitted interest in her.
3
ordered that upon his discharge, Mr. Jarrett was to complete the remainder of his supervised
release and comply with the terms of the 2011 Order. When Mr. Jarrett was discharged
from imprisonment in 2017, his probation officer provided him with a copy of the 2014
Terms and Mr. Jarrett acknowledged them.
Three months later, Mr. Jarrett violated his supervised release by failing to
notify his probation officer of a sexual relationship and viewing pornography on a shared
phone. The circuit court revoked Mr. Jarrett’s supervised release and ordered him to serve
five years of imprisonment. Again, the circuit court instructed Mr. Jarrett that upon
discharge, he was to complete the remainder of his supervised release and comply with the
terms of the 2011 Order. When Mr. Jarrett was discharged from his term of imprisonment
in 2019, his probation officer provided Mr. Jarrett with the 2014 Terms and Mr. Jarrett
acknowledged them. The probation officer also provided Mr. Jarrett a written order
prohibiting him from having any contact with a minor child in any fashion without first
petitioning the circuit court for modification.
In January 2023, Mr. Jarrett told his supervising officer that his wife was
pregnant. The officer advised Mr. Jarrett to contact his counsel and request a hearing to
modify the 2014 term and condition which prevented him from having contact with any
minor. Mr. Jarrett requested a hearing, which was scheduled for later that year.
4
On August 15, 2023, Mr. Jarrett met with a probation officer, who instructed
Mr. Jarrett that he was prohibited from going to the hospital if his wife went into labor prior
to the hearing scheduled for the motion to have contact with his child after birth. That
same day, Mr. Jarrett picked up his wife following her appointment with an obstetrician;
his wife told Mr. Jarrett that her physician told her to report immediately to Charleston
Area Medical Center’s (“CAMC”) Women’s and Children’s Hospital for an emergency
cesarean section. Mr. Jarrett escorted his wife to the hospital and remained in the waiting
room for several hours, leaving once to return with relatives.
Hospital staff contacted the probation office and reported that a registered
sex offender was in a waiting room at the hospital where children were present. Officers
arrested Mr. Jarrett at the hospital later that evening.
Thereafter, the State filed a petition to revoke Mr. Jarrett’s probation,
charging him with violating the conditions of his supervised release by (1) being present at
or entering within two blocks of a location where children are known to congregate and (2)
failing to leave the geographical proximity where verbal and non-verbal communications
with minors could be established by loitering in the waiting room at CAMC Women’s and
Children’s Hospital. Mr. Jarrett moved to dismiss, arguing that the conditions were void
5
because they were imposed by the probation officer without a hearing or counsel present
in violation of West Virginia Code § 62-12-26(h)(2) and Rule 32.1(b) of the West Virginia
Rules of Criminal Procedure. He further argued that the 2014 Terms were void for
vagueness and not supported by the evidence.
At the October 2023 revocation hearing, the State called a medical social
worker at CAMC Women’s and Children’s Hospital, who testified that on August 15, 2023,
multiple nursing staff expressed concerns to her about Mr. Jarrett’s presence in the
hospital’s waiting room because they were aware that he was a registered sex offender. The
social worker observed Mr. Jarrett sitting in the second floor waiting room of the hospital,
consulted the hospital’s legal team, and then contacted the Kanawha County Probation
Office to report the incident. The Corporate Director of Security for the hospital testified
that security footage showed Mr. Jarrett arriving at the hospital and walking through the
main lobby. Mr. Jarrett remained in the waiting room for several hours, where children
were present. Officers arrested Mr. Jarrett at the hospital around 5:00 p.m. that day. Mr.
Jarrett’s probation officer testified that had Mr. Jarrett dropped his wife off at the hospital
that day and left, there would have been no concerns about him violating the proximity to
minors condition.
The circuit court found that Mr. Jarrett violated the conditions of his
supervised release. Specifically, it found that the 2011 Order required Mr. Jarrett to
6
“comply with the rules of supervision and other regulations of the Court and any orders or
directives of the supervising officer[,]” and that the 2014 Terms given to Mr. Jarrett by the
probation department were simply a modification of the court’s 2011 Order. The circuit
court further found that the challenged conditions were not void for vagueness. It then
sentenced Mr. Jarrett to a term of four years of incarceration.
Mr. Jarrett had separately moved to modify the conditions of his supervised
release to allow him to have contact with his newborn daughter and that motion was argued
at sentencing. The State opposed his motion. The circuit court relied on Mr. Jarrett’s
criminal history, presentence report admissions, and a therapist letter rating Mr. Jarrett as
an “average/moderate risk” to reoffend, which noted that he would have “ample
opportunity to offend” as a caretaker. The circuit court ultimately denied Mr. Jarrett’s
request to modify the conditions of his supervised release to allow him to have contact with
his daughter. However, the circuit court granted him “permission to seek supervised
visitation with his daughter provided appropriate assurances for the child’s safety” could
be demonstrated, and stated that visitation requests “must include supervision by a third
party, and the approval of a treatment provider.”
II. STANDARD OF REVIEW
Mr. Jarrett appeals from an order revoking his supervised release. This Court
has recently held that
7
[w]hen reviewing an order modifying or revoking a
defendant’s supervised release under West Virginia Code § 62-12-26(h), we apply a three-pronged standard of review. We
review the circuit court’s final order and decision to modify or
revoke a defendant’s supervised release under an abuse of
discretion standard; we review challenges to findings 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).
III. DISCUSSION
Mr. Jarrett presents several arguments regarding the revocation of his
supervised release. Because his first assignment of error is dispositive—we reverse the
order revoking his supervised release on that ground—we decline to address his second
and third assignments of error, which challenge the validity and enforcement of certain
supplemental conditions and the sufficiency of the State’s evidence supporting the
revocation. Mr. Jarrett also argues that the circuit court abused its discretion in denying
his motion to have contact with his newborn daughter.
A. Revocation Based on Supplemental Conditions of Supervised Release
We first address Mr. Jarrett’s argument that the two conditions of his
supervised release that he was found to have violated—a prohibition on being within two
blocks of locations where children congregate, and a requirement that he leave the
8
geographic proximity in which verbal or non-verbal communication with minors could be
established—were imposed by the Kanawha County Probation Department after his 2011
sentencing, without a hearing with counsel present. He argues that these conditions amount
to substantive enlargements, are void and unenforceable, and that a revocation premised
on them cannot stand. We agree.
Our extended supervision statute, West Virginia Code § 62-12-26, “provides
that a court impose a period of extended supervision as part of the criminal sentence for
certain specified offenses, and sets forth the manner in which the supervision is to be
administered and enforced.” State v. James, 227 W. Va. 407, 414, 710 S.E.2d 98, 105
(2011). West Virginia Code § 62-12-26, also provides, in pertinent part, that “[a] defendant
sentenced to a period of supervised release shall be subject to any or all of the conditions
applicable to a person placed upon probation pursuant to the provisions of [West Virginia
Code] § 62-12-9.” W. Va. Code § 62-12-26(f).
West Virginia Code § 62-12-9(a)(1) to (6) sets out mandatory conditions for
probation, and West Virginia Code § 62-12-9(b) permits a circuit court to impose other
conditions “which it may determine advisable.” Id. While the conditions of supervised
release are subject to modification, a court may modify, reduce, or enlarge the conditions
of supervised release only when “consistent with the provisions of the West Virginia Rules
of Criminal Procedure relating to the modification of probation.” Id. Rule 32.1(b) of the
9
West Virginia Rules of Criminal Procedure in turn provides, in relevant part, that “[a]
hearing and assistance of counsel are required before the terms or conditions of probation
can be modified.”
By enacting West Virginia Code § 62-12-26, the Legislature codified a
constitutional command this Court recognized decades ago. In Syllabus Point 5 of Louk v.
Haynes, 159 W. Va. 482, 223 S.E.2d 780 (1976), we held that, “[c]onditions of probation
which are established or modified in the absence of either the accused or his counsel are
void and unenforceable.” Because supervised release conditions may be modified only in
accordance with the rules governing probation modification, the same protections attach
when the conditions of supervised release are enlarged. State v. Hedrick, 236 W. Va. 217,
778 S.E.2d 666 (2015).
The record establishes, and the State does not genuinely dispute, that the two
conditions underlying the revocation of Mr. Jarrett’s supervised release, included as part of
the 2014 Terms, were not among the terms set out in the 2011 Order that the circuit court
reviewed with Mr. Jarrett, in open court and with counsel, at his original sentencing.
Rather, they appeared in documents the probation department presented to Mr. Jarrett after
his release—the Sex Offender Conditions and the accompanying definitions governing
contact with minors—which together added numerous conditions not contained in the 2011
Order. The two conditions the circuit court found Mr. Jarrett violated were new. Critically,
10
they were never imposed, reviewed, or explained by the circuit court in a proceeding at
which Mr. Jarrett was represented by counsel. Under Louk and Rule 32.1(b), conditions
enlarged in that manner are void and unenforceable. Syl. Pt. 5, Louk, 159 W. Va. 482, 223
S.E.2d 780. Because those conditions were void and unenforceable, the revocation based
on those conditions cannot stand.
The State advances two principal responses, but neither is persuasive. First,
the State argues that Mr. Jarrett received all the process he was due at his 2011 sentencing,
when the circuit court ordered him—in open court and with counsel—to “comply with the
rules of supervision and other regulations of the Court and any orders or directives of the
supervising officer,” and that this general condition authorized the probation officer to
impose the later, more specific conditions without a further hearing. However, a general
directive to follow the lawful instructions of a supervising officer only permits the officer
to administer and carry out conditions the court has imposed. See e.g., United States v.
Amin, 85 F.4th 727, 734 (4th Cir. 2023) (“[A]s long as the court orders the broad principle
of guiding the condition of release and retains the ultimate authority over revoking release,
the court may allow the probation officer to fill in many of the details for applying it.”);
Shifflett v. Commonwealth, 903 S.E.2d 545, 555 (Va. Ct. App. 2024) (“the day-to-day
administration and management of Shifflett’s treatment—counseling being the form of sex
offender treatment prescribed by the circuit court—is directed by his probation officer—as
set out in the supervised probation condition—but the counseling condition is the basis for
11
the court’s requirement.”). A general directive to comply with the orders or directives of
the supervising officer does not empower the probation officer to unilaterally and
substantively enlarge the conditions of a probationer’s supervised release, without the
probationer receiving a hearing and counsel.
Under the conditions of supervised release, set forth in the 2011 Order, the
circuit court prohibited Mr. Jarrett from “living or working within 1,000 feet of a school,
childcare facility, or the victim’s residence,” and from“dating minors, living with minors,
and working with or around minors[.]” In contrast, the 2014 Terms and conditions
provided by the probation department were significantly more restrictive on Mr. Jarrett’s
ability to move throughout the community. We therefore reject the State’s assertion that
the 2014 Terms were tethered to the implementation of the conditions set by the court. The
2014 Terms prohibited Mr. Jarrett from “being present at or within two blocks of any park,
school, playground, swimming pool, daycare center, or other specific location where
children are known to congregate,” and “being in the geographic proximity of a minor
where verbal and/or non-verbal communication could be established.” To read the catchall condition in the 2011 Order of supervised release as allowing the probation department
to impose the enlarged, restrictive 2014 Terms, as the State proposes, would allow a
probation officer to accomplish precisely what West Virginia Code § 62-12-26 and Rule
32.1(b) reserve for the circuit court, acting in a hearing at which counsel for the probationer
is present. Simply stated, the due process protections this Court recognized in Louk cannot
12
be waived in advance by a boilerplate condition and then substantively enlarged, years
later, by a probation officer acting unilaterally.
We hereby hold that a general condition of supervised release requiring a
probationer to comply with the rules of supervision and the orders or directives of a
supervising probation officer authorizes the officer to administer, implement, and enforce
the conditions imposed by the sentencing court. It does not authorize a probation officer
to substantively enlarge the conditions of supervised release by imposing a new restriction
that materially expands the restraints on the probationer’s liberty beyond those imposed by
the court. A condition so enlarged is void and unenforceable unless it is imposed by the
circuit court after a hearing at which the probationer is afforded the assistance of counsel,
consistent with West Virginia Code § 62-12-26 and Rule 32.1(b) of the West Virginia Rules
of Criminal Procedure. This holding is consistent with the plain intent of West Virginia
Code § 62-12-26. See T. Weston, Inc. v. Mineral Cnty., 219 W. Va. 564, 568, 638 S.E.2d
167, 171 (2006) (“Courts should favor the plain and obvious meaning of a statute as
opposed to a narrow or strained construction.”).
Second, the State relies on State v. Hedrick, 236 W. Va. 217, 778 S.E.2d 666
(2015), in which this Court rejected a procedural due process challenge to conditions of
supervised release that probation officers added, and the probationer signed outside the
presence of counsel. However, Hedrick is factually distinguishable from this case. In
13
Hedrick, the probationer’s counsel promptly moved to strike the challenged conditions,
and the court conducted a hearing, at which the probationer was represented by counsel,
on the merits of those conditions before any alleged violation. When affirming the
conditions of supervised release in Hedrick, this Court emphasized that such a proceeding
did not occur in Louk. Id. at 224, 778 S.E.2d at 673. Critically, no comparable proceeding
occurred in this case either. Mr. Jarrett never received a hearing with counsel on the
supplemental conditions; he first challenged them after the State moved to revoke his
supervised release for violating them. For this reason, Hedrick confirms, rather than
defeats, Mr. Jarrett’s claim: the court process that cured the defect in Hedrick was never
afforded to him.3
We are mindful that supervised release must function in practice. Circuit
courts carry heavy dockets, and probation officers necessarily exercise considerable
judgment in the day-to-day supervision of those serving lengthy terms of extended
supervision. Nothing in our decision today curtails that discretion or requires a circuit court
to convene a hearing every time a probation officer takes a routine supervisory action. A
probation officer may, without petitioning the court to conduct a hearing and furnish a
probationer counsel under West Virginia Code § 62-12-26, take those actions that
3
The State also maintained that the 2014 Terms placed on Mr. Jarrett’s supervised release were reasonable and rationally related to protecting the public. However, this argument does not change our analysis. The defect in this case is procedural, not substantive.
14
implement, administer or enforce a condition the sentencing court has already imposed.
As the Fourth Circuit Court of Appeals has explained, “as long as the court orders the broad
principle” guiding the conditions of release “and retains the ultimate authority over
revoking release, the court may allow the probation officer to fill in many of the details for
applying it.” Amin, 85 F.4th at 734.4
What a probation officer may not do, without first requesting a hearing before
the court where the probationer is present with counsel under West Virginia Code § 62-12-26, is substantively enlarge the conditions of supervised release—that is, impose new
conditions that materially expand the restraints on the probationer’s liberty beyond those
the sentencing court ordered. The touchstone is whether the probation officer is carrying
out a directive the court imposed or adding a new one. A directive that imposes a
categorical prohibition the court did not order, or that meaningfully expands the
geographic, associational, or other liberty restrictions the court set, works as a prohibited
expansion of the court’s conditions, however reasonable the added restriction might be.
4
A probation officer may, for example, set and adjust reporting schedules and the manner of reporting; direct the day-to-day mechanics of a treatment, counseling, and/or testing program the court has required. See generally, Shifflett, 903 S.E.2d at 555; United States v. Ortega, 19 F.4th 831, 834 (5th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 1460, 212 L.Ed.2d 548 (2022) (affirming a condition of supervised release that gave the probation officer discretion over the length of the probationer’s inpatient treatment “within a particularized eight-month window,” where the maximum duration of the condition was the expiration of the one-year term of supervised release).
15
The 2014 Terms illustrate the distinction: barring Mr. Jarrett from coming
within two blocks of any location where children are known to congregate, and from any
geographic proximity to a minor where communication could be established, did not
merely implement the 2011 Order’s prohibition on residing or working within 1,000 feet
of a school, childcare facility, or the victim’s residence. Rather, the 2014 Terms imposed
materially greater restraints on Mr. Jarrett’s freedom to move throughout the community.
When a probation officer concludes that a broader restriction is warranted, West Virginia
Code § 62-12-26 and Rule 32.1(b) supply the mechanism: the probation officer, through
the State, may petition the circuit court, which may enlarge the conditions of supervised
release after a hearing at which the probationer is afforded the assistance of counsel.
Accordingly, we reverse the circuit court’s order revoking Mr. Jarrett’s
supervised release. Because this holding disposes of the revocation in full, it is unnecessary
to address his second and third assignments of error.
B. Denial of Motion to Allow Contact with Newborn Child
The second question for resolution is whether the circuit court abused its
discretion in denying Mr. Jarrett’s motion to modify the conditions of his supervised release
to allow him to have contact with his daughter, born in August 2023. While the circuit
court denied Mr. Jarrett’s request to modify the terms of his supervised release to allow
16
him to have contact with his child, at this time, it stated that it would consider supervised
visitation pending an expert opinion. Mr. Jarrett argues that the court abused its discretion
considering that his criminal conduct occurred over ten years ago, and he has not
committed any new offenses since that time. He contends that he is adequately supervised
by the probation office, which has administered polygraphs, observed his sex offender
therapy, and required him to routinely meet with his probation officer. Mr. Jarrett argues
that this level of supervision will ensure that he does not commit any offenses against his
child. The State responds that the circuit court did not abuse its discretion, considering Mr.
Jarrett’s history, the facts and circumstances underlying the crime, as well as the prior
revocations of his supervised release.
The condition Mr. Jarrett sought to relax is statutory. Because he was
convicted of a qualifying sexual offense against a child, Mr. Jarrett was subject, as a
condition of supervised release, to the prohibition of West Virginia Code § 62-12-9(a)(4),
which provides, in pertinent part, that:
[r]elease on probation is conditioned upon the following:
(4) That in every case in which the probationer has been
convicted of an offense defined in . . . article eight-b . . . of
[Chapter 61 of the West Virginia Code] against a child, the
probationer may not live in the same residence as any minor
child, nor exercise visitation with any minor child . . . .
Provided, That the probationer may petition the court of the
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circuit in which he or she was convicted for a modification of
this term and condition of his or her probation and the burden
rests upon the probationer to demonstrate that a modification
is in the best interest of the child.
Under this statutory scheme, a probationer who, as a condition of supervised
release under West Virginia Code § 62-12-9(a)(4), is prohibited from residing with or
exercising visitation with a minor child, and who petitions to modify that condition, bears
the burden of demonstrating that the modification is in the best interest of the child.
Although it does not appear that this Court has squarely addressed the issue,
the United States Court of Appeals for the Eighth Circuit confronted a similar challenge in
United States v. Stelmacher, 891 F.3d 730 (8th Cir. 2018), when considering a probationer’s
appeal of the district court’s decision denying his motion to modify the special conditions
of his supervised release that limited his freedom to have contact with his minor daughter.
Stelmacher pleaded guilty to possession of a firearm as an unlawful user of a controlled
substance and the district court sentenced him to imprisonment and three years of
supervised release. Id. at 732. As part of Stelmacher’s sentence, the district court imposed
special conditions of supervised release based on his prior conviction for fourth-degree
sexual assault involving a minor; one condition prohibited contact with children under the
age of 18 “without the prior written consent of the probation office.” Id. At the time of his
sentencing, Stelmacher had no children. However, the special condition specified that, in
the event Stelmacher were to father or adopt a child, the “U.S. Probation Office shall work
18
with the defendant and the defendant’s family to set up supervised communications and
visits with the defendant’s biological and legally adopted children.” Id. After fathering a
child, Stelmacher moved to modify the special conditions, requesting to have contact with
his daughter. Id. The district court denied the request. “Without a current professional
assessment of Stelmacher as a sex offender, the court concluded that the record did not
support lifting the restriction on unsupervised contact with his daughter.” Id. at 733.
On appeal, the Eighth Circuit affirmed, concluding that the district court did
not abuse its discretion because “the special condition was ‘reasonably related’ to deterring
future criminal conduct and protecting Stelmacher’s daughter.” Id. at 734. The court noted
that it had “held in prior decisions that a criminal history involving sexual offenses against
minors is sufficient to justify restrictions on contact with a defendant’s own minor
children.” Id. (citing United States v. Schultz, 845 F.3d 879, 882–83 (8th Cir. 2017) and
United States v. Simons, 614 F.3d 475, 481–82 (8th Cir. 2010)).
At the hearing on Mr. Jarrett’s motion to modify the conditions of his
supervised release, his counsel argued that it would be in the best interest of the child to
have her father in her life. Conversely, counsel for the State argued that “having a father
figure in the house is an important factor for children, of course, it is, but not exposing
them to the possibility of abuse or a sexual assault or abuse is also important, and I think it
outweighs the other.” The State emphasized that the presentence materials reflected Mr.
19
Jarrett’s admissions that he was sexually aroused by young girls and that he had engaged
in sexual acts with family members, including four female cousins and a younger brother.
It also noted that Mr. Jarrett’s supervised release had been revoked twice—once in 2014
for incidental contact with a minor female to whom he admitted an attraction, and again in
2017 for failing to disclose a sexual relationship (with his father’s ex-girlfriend) and
viewing pornography. The parties discussed the fact that Mr. Jarrett was sexually abused
by his parents when he was a child, that “his mother sold him to other men, basically
pimped him out[,]” and how that abuse could potentially impact the chance he would
reoffend. The circuit court also considered a letter prepared by a therapist that indicated
Mr. Jarrett “would still be considered average/moderate risk” of reoffending and that
assuming a caretaking role as a father would afford him “ample opportunity to offend.”
The circuit court’s conclusion that Mr. Jarrett had not shown that contact
would be in the child’s best interest, at this time, was neither arbitrary nor unreasonable.
The court weighed Mr. Jarrett’s history, his own admissions, and the risk assessment he
submitted, and it declined to place a newborn in his care, while leaving open the possibility
of supervised visitation upon further expert evaluation. That measured disposition reflects
a considered exercise of the discretion soundly committed to the circuit court. As the
Supreme Court of the United States has recognized, “[t]he risk of recidivism posed by sex
offenders is ‘frightening and high.’” Smith v. Doe, 538 U.S. 84, 103 (2003) (quoting
McKune v. Lile, 536 U.S. 24, 34 (2002)). For these reasons, we discern no abuse of
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discretion and affirm the circuit court’s denial of Mr. Jarrett’s motion to modify the
conditions of his supervised release.
IV. CONCLUSION
For the foregoing reasons, the Circuit Court of Kanawha County’s February
2, 2024, order is affirmed, in part, and reversed, in part. We affirm the circuit court’s
decision denying Mr. Jarrett’s motion to modify the conditions of his supervised release to
allow contact with his child. However, we reverse Mr. Jarrett’s supervised release
revocation and remand this case for further proceedings consistent with this opinion.
Affirmed, in part, reversed,
in part, and remanded.
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