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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2006 Term
_____________
No. 32976
_____________
STATE EX REL. ROBERT L. McCABE,
Petitioner Below, Appellant
v.
EVELYN SEIFERT, WARDEN,
NORTHERN CORRECTIONAL CENTER,
Respondent Below, Appellee
and the
WEST VIRGINIA DIVISION OF CORRECTIONS
PAROLE SERVICES,
Appellee
__________________________________________________
Appeal from the Circuit Court of Monongalia County
Honorable Russell M. Clawges, Jr., Judge
Case No. 05-C-211
DISMISSED AS MOOT
__________________________________________________
Submitted: October 19, 2006
Filed: November 29, 2006
Melissa J. Giggenbach, Esq.
Morgantown, West Virginia
Attorney for the Appellant
| Darrell V. McGraw, Jr., Esq.
Attorney General
Dawn E. Warfield, Esq.
Deputy Attorney General
Charleston, West Virginia
Attorneys for the Appellees |
JUSTICE STARCHER, deeming himself disqualified, did not participate in the decision in
this appeal.
JUDGE JAMES P. MAZZONE, Chief Judge of the First Judicial Circuit, sitting by
temporary assignment.
JUSTICE ALBRIGHT dissents and reserves the right to file a dissenting opinion.
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “Moot questions or abstract propositions, the decision of which would avail
nothing in the determination of controverted rights of persons or of property, are not properly
cognizable by a court.” Syl. pt. 1,
State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873
(1908)
2. “Where the State agrees that a specific sentence is a suitable disposition of
a criminal case and enters into a plea agreement with the defendant pursuant to Rule
11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the trial court may either
accept or reject the entire agreement, but it may not accept the guilty plea and impose a
different sentence.” Syl. pt. 2,
State ex rel. Forbes v. Kaufman, 185 W.Va. 72, 404 S.E.2d
763 (1991)
Per Curiam:
This case is before this Court upon the appeal of Robert L. McCabe from the
April 20, 2005, order of the Circuit Court of Monongalia County denying him relief in
habeas corpus. McCabe was convicted in that Court, in 2000, of five felonies: three counts
of obtaining money by false pretenses, one count of obtaining labor, services and materials
by false pretenses and one count of conducting a fraudulent scheme. The convictions were
entered upon guilty pleas and concerned a contracting business McCabe operated in the
Monongalia County area. McCabe was sentenced to a term of 1 to 10 years upon each of the
convictions, the sentences to run concurrently. No direct appeal was filed.
In this habeas proceeding, filed in the Circuit Court in April 2005, McCabe
alleged several grounds for relief and focused, primarily, upon an alleged discrepancy
between the sentencing order and his underlying plea agreement. The alleged discrepancy
concerns the date his concurrent sentences were to commence. Pursuant to its order of April
20, 2005, the Circuit Court denied relief upon all grounds. After McCabe filed his appeal
in this Court from that order, he was released upon parole. That fact was noted by this Court
during oral argument at which time counsel for the State asserted that, in view of McCabe's
release, this appeal is moot. Also during oral argument, counsel for McCabe stated that two
unrelated issues raised in his appeal from the April 20, 2005, order are now withdrawn.
This Court has before it the petition for appeal, all matters of record and the
briefs and argument of counsel. Upon careful examination, and in view of McCabe's release
from incarceration in combination with (1) his withdrawal of a substantial portion of the
appeal from this Court's consideration and (2) the fact that he raises no issues concerning the
terms of his parole, other than an uncertainty as to its termination date brought about by the
alleged discrepancy, this Court concludes that this appeal is moot and should be dismissed
from the docket of this Court, with leave granted to McCabe to file a motion in the Circuit
Court for a corrected sentencing order.
I.
Procedural Background
In 1996, in an unrelated Monongalia County prosecution, McCabe was
convicted of conspiracy to commit murder, obtaining money by false pretenses and
obtaining property in return for a worthless check. He received an aggregate sentence of 2
to 15 years with an effective sentence date of June 10, 1995. McCabe was placed upon
parole as to those convictions in 1998. His parole was revoked, however, and he was
reincarcerated.
In January 2000, a Monongalia County grand jury returned a seven count
indictment against McCabe, No. 00-F-43, charging him with offenses relating a to
contracting business he operated in the Monongalia County area. On October 16, 2000,
McCabe, his court appointed counsel and the prosecuting attorney signed a plea agreement
made under the provisions of West Virginia Rule of Criminal Procedure 11(e)(1)(C).
(See footnote 1) Pursuant thereto, McCabe agreed to plead guilty to three counts of obtaining money by false
pretenses, one count of obtaining labor, services and materials by false pretenses and one
count of conducting a fraudulent scheme. The agreement further provided that McCabe
would serve five concurrent sentences of 1 to 10 years each and that the sentences would be
“consecutive to the sentence or sentences which [McCabe] is currently serving [the 2 to 15
years for the 1996 convictions].”
On December 11, 2000, the Circuit Court entered an order accepting the plea
agreement. The order made clear that McCabe understood that the plea agreement was
binding and that he would be sentenced in accord with the agreement's provisions. As the
order reflects, McCabe was sentenced to five concurrent terms of 1 to 10 years each for his
convictions of obtaining money by false pretenses, obtaining labor, services and materials
by false pretenses and conducting a fraudulent scheme. The order, however, contained a
discrepancy concerning the date the concurrent sentences were to commence. Although the
plea agreement stated that those sentences would be served consecutively to the sentence or
sentences McCabe received with regard to the 1996 convictions, the December 11, 2000,
order indicated that the new sentences would not begin to run until McCabe was again
paroled upon the 1996 convictions.
(See footnote 2) No direct appeal was ever filed from the order.
The petition for a writ of habeas corpus was filed in the Circuit Court of
Monongalia County on April 13, 2005, under the West Virginia Post-Conviction Habeas
Corpus Act.
W.Va. Code, 53-4A-1 (1967),
et seq. McCabe, represented by new appointed
counsel, alleged several grounds for relief and focused, primarily, upon the discrepancy
between the sentencing order of December 11, 2000, and the underlying plea agreement.
Pursuant to the order of April 20, 2005, however, the Circuit Court denied relief upon all
grounds. In particular, the Circuit Court indicated that the purported discrepancy did not
affect the commencement of McCabe's concurrent 1 to 10 year sentences as contemplated
under the plea agreement.
The appeal from the denial of habeas relief was filed with the Clerk of the
Circuit Court on July 11, 2005, and received in this Court in August 2005. On January 23,
2006, McCabe was released upon parole with regard to the 1996 convictions.
(See footnote 3) Thereafter,
final argument was heard by this Court, and the appeal was submitted for decision.
II.
Standard of Review
As long recognized by this Court: “Moot questions or abstract propositions, the
decision of which would avail nothing in the determination of controverted rights of persons
or of property, are not properly cognizable by a court.” Syl. pt. 1,
State ex rel. Lilly v.
Carter, 63 W.Va. 684, 60 S.E. 873 (1908).
See also, syl. pt. 5,
Cooper v. City of Charleston,
218 W.Va. 279, 624 S.E.2d 716 (2005); syl.,
Kemp v. State of West Virginia, 203 W.Va. 1,
506 S.E.2d 38 (1997). Similarly, syllabus point 1 of
Tynes v. Shore, 117 W.Va. 355, 185
S.E. 845 (1936), holds: “Courts will not ordinarily decide a moot question.”
III.
Discussion
The right to petition for relief in habeas corpus is recognized in The
Constitution of the United States and in The Constitution of West Virginia.
(See footnote 4) The State
Constitution and other provisions of State law confer jurisdiction in such cases upon this
Court and upon the circuit courts.
(See footnote 5) Complimentary to those broad provisions, the West
Virginia Legislature has recognized various circumstances wherein the filing of a petition for
a writ of habeas corpus would be appropriate. For example,
W.Va. Code, 53-4-1 (1923),
provides for the granting of habeas relief to a person “detained without lawful authority,”
and, in
W.Va. Code, 49-5-14(b) (1999), the right to seek release by habeas corpus in juvenile
matters is acknowledged. Moreover,
W.Va. Code, 27-5-5 (1974), recognizes the right to
petition for habeas relief in involuntary hospitalization cases, and
W.Va. Code, 48-1-222
(2001), defines a domestic relations action as including an action to allocate custodial
responsibility and determine decision-making responsibility or to otherwise determine child
custody, “as in an action petitioning for a writ of habeas corpus wherein the issue is child
custody.”
As stated above, McCabe's petition for a writ of habeas corpus was filed in the
Circuit Court under the West Virginia Post-Conviction Habeas Corpus Act. As this Court
concluded in syllabus point 2 of
State ex rel. Burgett v. Oakley, 155 W.Va. 276, 184 S.E.2d
318 (1971): “The intent of the Post-Conviction Habeas Corpus Act, Code, 53-4-1,
et seq.,
as amended, was to liberalize, rather than restrict, the exercise of the writ of habeas corpus
in criminal cases.” Syl. pt. 1,
Adams v. Circuit Court of Randolph County, 173 W.Va. 448,
317 S.E.2d 808 (1984).
(See footnote 6) The relevant portion of the Act to these proceedings,
W.Va. Code,
53-4A-1(a) (1967), provides:
Any person convicted of a crime and incarcerated under sentence of
imprisonment therefor who contends that there was such a denial or
infringement of his rights as to render the conviction or sentence void under
the Constitution of the United States or the Constitution of this State, or both,
or that the court was without jurisdiction to impose the sentence, or that the
sentence exceeds the maximum authorized by law, or that the conviction or
sentence is otherwise subject to collateral attack upon any ground of alleged
error heretofore available under the common-law or any statutory provision of
this State, may, without paying a filing fee, file a petition for a writ of habeas
corpus ad subjiciendum, and prosecute the same, seeking release from such
illegal imprisonment, correction of the sentence, the setting aside of the plea,
conviction and sentence, or other relief [.]
In his appeal from the April 20, 2005, order denying habeas relief, McCabe
asserted, inter alia, that the Circuit Court committed error in refusing to find that his former
court appointed counsel was ineffective and in refusing to set aside his current guilty pleas
under indictment No. 00-F-43 as involuntary. During oral argument before this Court,
however, McCabe's new appointed counsel stated that those assignments of error are now
withdrawn. (See footnote 7)
McCabe focuses primarily, however, upon the discrepancy between the
December 11, 2000, sentencing order and the underlying plea agreement concerning the
commencement date of his concurrent sentences under indictment No. 00-F-43. Although
the plea agreement stated that those sentences would be consecutive to the sentences he
received with regard to the 1996 convictions, the December 11, 2000, order provided that
those sentences would not begin to run until McCabe was again paroled upon the 1996
convictions. The record does not indicate why the commencement of the sentences under
indictment No. 00-F-43 was made contingent upon his parole with regard to the 1996
convictions. See, n. 2, supra.
The record does reveal, however, that the principal impact of the discrepancy
was upon the minimum sentence to be served under McCabe's concurrent 1 to 10 year terms.
After McCabe served the 1 year minimum thereof and appeared to be otherwise eligible for
parole, the West Virginia Parole Board granted him “administrative parole” upon the 1996
convictions and concluded that, only then, would his 1 year minimum term under the new
convictions begin to run. Consequently, as the State agrees, McCabe was required to serve
the minimum term under indictment No. 00-F-43 twice before becoming eligible for parole
upon the current convictions.
As reflected in the order of April 20, 2005, the Circuit Court denied habeas
relief concerning the discrepancy between the December 11, 2000, sentencing order and the
plea agreement. A review of the April 20, 2005, order, however, indicates that, in so ruling,
the Circuit Court confused that issue with the separate claim raised by McCabe concerning
presentence credit for time. See, n. 7, supra. Nevertheless, McCabe has now been released
upon parole with regard to his convictions under indictment No. 00-F-43. Accordingly, the
State contends that, although McCabe may be entitled to a corrected sentencing order, this
appeal is otherwise moot.
As stated above, “[m]oot questions or abstract propositions, the decision of
which would avail nothing in the determination of controverted rights of persons or of
property, are not properly cognizable by a court.” Syl. pt. 1, State ex rel. Lilly v. Carter, supra. See also, syl. pt. 3, State v. Eddie Tosh K., 194 W.Va. 354, 460 S.E.2d 489 (1995);
syl. pt. 1, State ex rel. Durkin v. Neely, 166 W.Va. 553, 276 S.E.2d 311 (1981); syl. pt. 1, State ex rel. Hedrick v. Board of Commissioners, 146 W.Va. 79, 118 S.E.2d 73 (1961). (See footnote 8)
In State ex rel. Richey v. Hill, 216 W.Va. 155, 603 S.E.2d 177 (2004), the
petitioner, found guilty of sexual assault in the third degree, sought relief in mandamus in this
Court to obtain post-conviction DNA testing of the victim's clothing. This Court denied
relief upon the ground of res judicata (See footnote 9) and also because no authority in the law mandated
DNA testing on behalf of criminal defendants who were not incarcerated. Upon the latter
ground, this Court, in Richey, compared the petitioner's request for mandamus relief to the
remedy of habeas corpus and observed:
Our concern in Zain I [recognizing the remedy of habeas corpus in cases
where false serology evidence was presented upon behalf of the State] for
those still incarcerated flowed, at least in part, from the jurisdictional
requirement that habeas lies only for one “convicted of a crime and
incarcerated under sentence of imprisonment therefor [.]” W.Va. Code § 53-
4A-1(a) (1967) (2000 Repl. Vol.). * * * [O]ur own post-conviction
habeas corpus statute, and the views of other jurisdictions establish that a post-
conviction petitioner seeking DNA testing must be incarcerated.
216 W.Va. at 160-61, 164, 603 S.E.2d at 182-83, 186.
Moreover, in Kemp v. State of West Virginia, 203 W.Va. 1, 506 S.E.2d 38
(1997), the appellant, Michael Kemp, filed an appeal in this Court from the denial of habeas
relief with regard to his convictions of four counts of sexual abuse in the first degree. One
week prior to oral argument, however, the appellant was released from the penitentiary.
Consequently, this Court held that the appeal was moot. As this Court stated: “One week
prior to oral arguments, the appellant was released from the penitentiary, and we find that the
extraordinary relief offered by the post-conviction writ of habeas corpus is not available to
Mr. Kemp.” 203 W.Va. at 1, 506 S.E.2d at 38. In his habeas petition, the appellant had
alleged ineffective assistance of counsel and certain errors committed at the trial court level.
Although the opinion in Kemp did not state whether the appellant's release from the
penitentiary was upon parole, this Court, in determining the appeal to be moot, noted: “We
acknowledge that many state and federal courts have determined that parole or probation is
sufficient restriction of freedom to warrant a writ be issued. However, with this particular
set of facts we will not decide that issue at this time.” 203 W.Va. at 2 n. 3, 506 S.E.2d at 39
n. 3.
In the present case, the State invites this Court to hold that parole is excluded
from the word “incarcerated” within the context of W.Va. Code, 53-4A-1(a) (1967), of the
West Virginia Post-Conviction Habeas Corpus Act, and that, therefore, inasmuch as McCabe
has been released upon parole, he has no remedy under the Act. Such an extension of the law
in the factual circumstances herein, however, is unnecessary. Nor would such an extension
in this unique case be appropriate in view of the admonition expressed in W.Va. Code, 53-
4A-1(e) (1967), of the Post-Conviction Habeas Corpus Act that the writ of habeas corpus
provided for therein “comprehends and takes the place of all other common law and statutory
remedies, including, but not limited to, the writ of habeas corpus ad subjiciendum provided
for in article four [W.Va. Code, 53-4-1, et seq.,] of this chapter, which have heretofore been
available for challenging the validity of a conviction or sentence and shall be used
exclusively in lieu thereof [.]” See, n. 6, supra. Here, as in Kemp, the aspects of confinement
or “incarceration” due solely to parole are not before this Court. McCabe has not sought to
amend his petition for appeal to challenge the terms set forth in his parole agreement or the
nature of his supervision. Rather, he raises the uncertainty as to the termination date of his
parole brought about by the discrepancy between the December 11, 2000, sentencing order
and the plea agreement. Thus, as in Kemp, McCabe's focus in this habeas proceeding is upon
matters occurring prior to his release from incarceration.
Accordingly, in view of McCabe's release from incarceration in combination
with: (1) his withdrawal of a substantial portion of the appeal from this Court's consideration
and (2) the fact that he raises no issues concerning the terms of his parole agreement, other
than an uncertainty as to its termination date brought about by the discrepancy, this Court
concludes that this appeal is moot and should be dismissed from the docket of this Court.
Nevertheless, while it is too late to cure McCabe's serving of two minimum sentences under
indictment No. 00-F-43, he is entitled to a correction of the December 11, 2000, sentencing
order. The discrepancy notwithstanding, the sentencing order made clear that the plea
agreement was binding pursuant to Rule 11(e)(1)(C) and that McCabe would be sentenced
in accord with the agreement's provisions. The agreement provided that McCabe would
serve the five concurrent sentences consecutively to the sentences concerning the 1996
convictions, and no requirement concerning parole upon the 1996 convictions was
mentioned. Syllabus point 2 of State ex rel. Forbes v. Kaufman, 185 W.Va. 72, 404 S.E.2d
763 (1991), holds:
Where the State agrees that a specific sentence is a suitable disposition
of a criminal case and enters into a plea agreement with the defendant pursuant
to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the trial
court may either accept or reject the entire agreement, but it may not accept the
guilty plea and impose a different sentence.
State ex rel. Brewer v. Starcher, 195 W.Va. 185, 193, 465 S.E.2d 185, 193 (1995).
Although W.Va. Code, 53-4A-1(a) (1967), of the Post-Conviction Habeas
Corpus Act provides for the correction of sentences, see, syl. pt. 2, State ex rel. Koton v.
Coiner, 155 W.Va. 668, 187 S.E.2d 209 (1972) (recognizing that the correction of sentences
is authorized under the Act), subsection (e) of W.Va. Code, 53-4A-1 (1967), states that the
Act does not affect remedies “incident to the criminal proceedings in the trial court.” Upon
the latter provision, and in conjunction with Rule 11(e)(1)(C), this Court grants McCabe
leave to file a motion in the Circuit Court for a correction of the sentencing order to eliminate
the condition that his sentences under indictment No. 00-F-43 would not begin to run until
his parole upon the 1996 convictions. (See footnote 10) Upon receipt of such a corrected order, the West
Virginia Parole Board may adjust its records accordingly.
IV.
Conclusion
Upon all of the above, the appeal filed by appellant Robert L. McCabe is moot
and is dismissed from the docket of this Court, with leave granted to McCabe to file a motion
in the Circuit Court of Monongalia County, West Virginia, for a corrected sentencing order.
Appeal Dismissed as Moot
Rule 11(e)(1)(C) provides:
(e)
Plea agreement procedure. - (1) In general. - The attorney for the state
and the attorney for the defendant or the defendant when acting
pro se may
engage in discussions with a view toward reaching an agreement that, upon the
entering of a plea of guilty or nolo contendere to a charged offense or to a
lesser or related offense, the attorney for the state will do . . . the
following: . . . (C) Agree that a specific sentence is the appropriate
disposition of the case [.]
Footnote: 2 After noting that McCabe was returned to the penitentiary upon a previous parole
revocation concerning the 1996 convictions, the December 11, 2000, order stated: “Effective
Sentence Date: Date of parole on sentences for Monongalia County cases 95-F-83, 95-F-88
and 96-F-14 [the 1996 convictions].”
The record does not reveal why the commencement of McCabe's sentences was made
contingent upon his parole with regard to the 1996 convictions. The Circuit Court made no
reference to parole during the plea hearing concerning the current convictions. Instead, the
Circuit Court stated that the sentences would be consecutive to the sentence or sentences
McCabe previously received. A letter dated August 2, 2004, to McCabe from the West
Virginia Division of Corrections stated that the December 11, 2000, order “is the only order
we have ever received that establishes the effective sentence date as 'Date of parole' on prior
sentences [;] . . . your 1 year minimum on the new terms could not begin until you were
granted parole on cases 95-F-83, 95-F-88 and 96-F-14.”
Footnote: 3 In view of his current parole, this Court permitted McCabe to add the West Virginia
Division of Corrections Parole Services as a party to this appeal.
Footnote: 4 U.S. Const. art. I, § 9, provides that “[t]he Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may
require it.” Similarly, W.Va. Const. art. III, § 4, provides that “[t]he privilege of the writ of
habeas corpus shall not be suspended.”
Footnote: 5 W.Va. Const. art. VIII, § 3, provides that the Supreme Court of Appeals “shall have
original jurisdiction of proceedings in habeas corpus, mandamus, prohibition and certiorari.”
See also, W.Va. R. App. P. 14(a), recognizing this Court's original jurisdiction in habeas
corpus cases, and
W.Va. Code, 51-1-3 (1923), recognizing this Court's original and appellate
jurisdiction in habeas corpus cases.
With regard to circuit courts, W.Va. Const. art. VIII, § 6, provides that such courts
“shall have original and general jurisdiction . . . of proceedings in habeas corpus [.]”
See also,
W.Va. Code, 51-2-2 (1978), conferring original and general jurisdiction upon the
circuit courts in habeas corpus cases.
Footnote: 6 The interrelationship of the West Virginia Post-Conviction Habeas Corpus Act and
other remedies, and particularly as to habeas relief under
W.Va. Code, 53-4-1 (1932),
supra,
is set forth in
W.Va. Code, 53-4A-1(e) (1967), which states, in part:
The writ of habeas corpus ad subjiciendum provided for in this article is not
a substitute for nor does it affect any remedies which are incident to the
criminal proceedings in the trial court or any remedy of direct review of the
conviction or sentence, but such writ comprehends and takes the place of all
other common law and statutory remedies, including, but not limited to, the
writ of habeas corpus ad subjiciendum provided for in article four [
W.Va.
Code, 53-4-1,
et seq.,] of this chapter, which have heretofore been available
for challenging the validity of a conviction or sentence and shall be used
exclusively in lieu thereof: Provided, that nothing contained in this article shall
operate to bar any proceeding or proceedings in which a writ of habeas corpus
ad subjcicendum is sought for any purpose other than to challenge the legality
of a criminal conviction or sentence of imprisonment therefor.
With regard to the disposition of cases under the Act,
see this Court's Rules
Governing Post-Conviction Habeas Corpus Proceedings in West Virginia.
Footnote: 7 McCabe's counsel indicated to this Court that the two issues were being withdrawn
because McCabe now states that he does not want his guilty pleas under indictment No. 00-
F-43 to be vacated.
In addition to those two issues, however, McCabe asserts that he was entitled to credit
for time upon his current convictions under indictment No. 00-F-43 for the period between
January 2000 when the indictment was returned and October 2000 when he executed the plea
agreement. McCabe's former court appointed counsel failed to file an appeal from an
adverse ruling by the sentencing court upon that claim. McCabe now contends that, in
denying relief in habeas corpus in the subsequent April 20, 2005, order, the Circuit Court
committed error in concluding that the failure to file an appeal concerning the claim for credit
for time was “probably harmless” because such an appeal would have been “entirely
speculative.”
McCabe's claim for credit for time, however, was the subject of a separate habeas
corpus petition filed
pro se in the Circuit Court of Monongalia County in August 2003 and
denied on September 10, 2003. In any event, McCabe acknowledges the decision of this
Court in
Echard v. Holland, 177 W.Va. 138, 351 S.E.2d 51 (1986), which held that
presentence credit on one sentence is not available where a criminal defendant is already
incarcerated upon another conviction. Here, during the period between January 2000 and
October 2000, McCabe was already incarcerated pursuant to his 1996 convictions under
indictments 95-F-83, 95-F-88 and 96-F-14. To give McCabe credit for time again under
indictment No. 00-F-43, as he now asks this Court to do, would constitute the functional
equivalent of permitting him to serve the consecutive sentences in a concurrent manner
which is contrary to both the plea agreement and the December 11, 2000, sentencing order.
Although McCabe asserts that
Echard should be overruled, this Court declines to so rule.
In fact, the principles expressed in
Echard were recently confirmed and clarified by this
Court in
State v. Middleton, no. 33048 (W.Va. - opinion filed Nov. _ , 2006). In
Middleton,
this Court indicated that, rather than awarding a criminal defendant duplicate credit for time,
courts have uniformly held that, when consecutive sentences are imposed for two or more
offenses, periods of presentence incarceration may be credited only against the aggregate of
all terms imposed. As syllabus point 6 of
Middleton holds:
Consistent with our decision in
Echard v. Holland, 177 W.Va. 138, 351
S.E.2d 51 (1986), when a trial court awards credit for presentence
incarceration to a defendant receiving consecutive sentences, the period of
presentence incarceration must be credited against the aggregated maximum
term of the consecutive sentences. To the extent that language in the decision
of
State v. Scott, 214 W.Va. 1, 585 S.E.2d 1 (2003), suggests a different
allocation of presentence credit to consecutive sentences, it is disapproved.
Footnote: 8 An exception to the above principle has been recognized by this Court for issues
which may be “repeatedly presented to the trial court, yet escape review at the appellate level
because of their fleeting and determinate nature.” Syl. pt. 3,
State ex rel. Shifflet v. Rudloff,
213 W.Va. 404, 582 S.E.2d 851 (2003); syl. pt. 1,
Israel v. Secondary Schools Activities
Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989).
In view of McCabe's focus upon the discrepancy between the plea agreement and the
sentencing order, however, this case is an unlikely candidate for that exception. As set forth
in footnote 2 above, the letter of August 2, 2004, to McCabe from the West Virginia Division
of Corrections stated that the December 11, 2000, sentencing order “is the only order we
have ever received that establishes the effective sentence date as 'Date of Parole' on prior
sentences [.]” Nothing in the record before this Court suggests that such a discrepancy
constitutes an issue which has been repeatedly presented for adjudication.
Footnote: 9 Prior to seeking mandamus relief in this Court, the petitioner made a number of
unsuccessful attempts in various judicial forums to challenge his sexual assault conviction.
Some of the challenges took the form of habeas corpus petitions, a
coram nobis petition and
a motion for relief under Rule 60(b) of the West Virginia Rules of Civil Procedure.
“
Coram nobis” is defined in Black's Law Dictionary 338 (7
th ed. 1999), in part, as a
writ of error “directed to a court for review of its own judgment and predicated on alleged
errors of fact.” As stated in
Richey: “We have noted that even though
coram nobis is
abolished in purely civil cases, it may still be available in a post-conviction context when the
petitioner is not incarcerated.” 216 W.Va. at 162 n. 10, 603 S.E.2d at 184 n. 10. Here,
inasmuch as McCabe was paroled after the filing of this appeal, he asks this Court, as an
alternative to reversing the denial of habeas relief, to convert his appeal into a
coram nobis proceeding. The State, on the other hand, asserts that there is no precedent for such a
conversion and that the remedy of
coram nobis is not available under the circumstances
herein. As discussed in this opinion, however, this Court concludes that the only relief to
which McCabe is now entitled is leave to file a motion below for a corrected sentencing
order. Therefore, a resolution of whether McCabe may convert this appeal into a
coram
nobis proceeding is unnecessary.
Footnote: 10
See also, Rule 35(a) of the West Virginia Rules of Criminal Procedure concerning
the correction of sentences.