STATE ex rel. Robert L. MCCABE, Petitioner Below, Appellant, v. Evelyn SEIFERT, Warden, Northern Correctional Center, Respondent Below, Appellee, and West Virginia Division of Corrections Parole Services, Appellee.
No. 32976.
Supreme Court of Appeals of West Virginia.
Submitted: Oct. 19, 2006. Decided: Nov. 29, 2006.
640 S.E.2d 142
issue of damages. Accordingly, we refuse to grant the writ of prohibition requested by Petitioner.5 Writ denied.
Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, Charleston, for the Appellees.
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 sen-tences 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counsel for McCabe stated that two unrelated issues raised in his appeal from the April 20, 2005, order are now withdrawn.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.
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.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.
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 current convictions.3 Thereafter,
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, 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.4 The State Constitution and other provisions of State law confer jurisdiction in such cases upon this Court and upon the circuit courts.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,
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).6 The
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.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 De-cember
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).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 judicata9 and
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, 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
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.
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
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.
ALBRIGHT, Justice, dissenting.
My genuine dismay and concern with the majority opinion in this case is founded on three grounds: (1) the majority‘s seeming surrender of this Court‘s constitutionally bestowed power in habeas corpus matters; (2) the majority‘s use of legerdemain in order to find a viable issue moot; and (3) the majority‘s refusal to settle the recurring question of whether the avenue of a writ of coram nobis is still open in a criminal context.
1. Constitutional Grant of Authority
In West Virginia, the authority of this Court and the circuit courts to issue writs of habeas corpus is granted by our State Constitution in Article VIII, Sections 3 and 6.1 In this state‘s Post-Conviction Habeas Corpus Act, West Virginia Code Chapter 53, Article 4A, the Legislature undertook to supplant, not merely supplement, that authority by boldly reciting in the Post-Conviction Habeas Corpus Act that the Act
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 [§§ 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[.]
The majority tells us that it is not deferring to the language of the Post-Conviction Habeas Corpus Act. Such deference is indeed improper because the people of this state, speaking through our constitution, expressly and unambiguously placed oversight of matters involving restraints on liberty directly within the jurisdiction of the state courts. Addressing the significance of this direct entrustment by the people in our constitution, this Court in State ex rel. Burgett v. Oakley, 155 W.Va. 276, 184 S.E.2d 318 (1971), considered earlier decisions of this Court:
In the case of Donaldson v. Voltz, 19 W.Va. 156 (1881), in declaring certain legislative restrictions placed upon the exercise of the exemption provided in Article VI, Section 48, null and void, this Court recognized that this constitutional provision authorized the legislature to enact certain regulations, but said:
*** Where a Constitution establishes a right but has not particularly designated the manner of its exercise, it is within the constitutional limits of the legislative power to adopt all necessary regulations in regard to the time and mode of exercising it, which are reasonable and uniform and designed to secure and facilitate the exercise of such right. Such a construction would afford no warrant for such an exercise of the legislative power, as under the pretense of regulating should subvert or destroy the right itself. (Emphasis added.)
In the case of Buskirk v. Judge of Circuit Court, 7 W.Va. 91, decided in 1873, Judge Haymond said:
“The writs of habeas corpus, mandamus and prohibition are highly esteemed and appreciated by the intelligent and patriotic of all free, well regulated governments, and the absence and denial of them, as remedies to the citizen has ever been a source of well founded grief and lamentation by the same class in governments of oppression and despotism. So strong has been the regard and appreciation of the people of this State for these writs they have not been content to leave them ... dependent upon mere act of the Legislature, but they have ... made them constitutional writs.... * * * I am clearly of opinion that it was not the purpose or intention of the Legislature in enacting that section to prohibit this court from hearing application for, and awarding writs of ... habeas corpus....”
155 W.Va. at 279-80, 184 S.E.2d at 320 (emphasis in original). As a result of this discussion, it was held in syllabus point two of Burgett that:
The intent of the Post-Conviction Habeas Corpus Act, Code, 53-4A-1 et seq., as amended, was to liberalize, rather than restrict, the exercise of the writ of habeas corpus in criminal cases.
The majority in the case at hand says it recognized this holding from Burgett. However, since the conclusion reached by the majority is in direct conflict with the Burgett holding, I surmise from the majority‘s discussion that it reached its conclusion on what is the unreasonable ground that parole poses no infringement on individual liberty except in narrow circumstances attacking specific conditions imposed during the parole period. The history of habeas corpus and its application by courts in other jurisdictions does not limit the writ to such a narrow scope.
2. Continuing Viability of Issue Raised
The majority held Appellant‘s claim for relief from a sentence of imprisonment moot because Appellant has been released from prison and placed on parole. While the majority asserted that it was not basing its decision on any distinction between incarceration and parole, it acknowledged that Appellant‘s complaint questioned the proper termination date for his parole supervision-which were he to be again imprisoned for parole violation, would also be the date of termination of his sentence of imprisonment. It is clearly disingenuous to find this issue moot when the termination date thus has vigor as a critical component of the conditions of parole. This type of fancy footwork to circumvent the issue raised would be funny if it were not so serious.
In the context of a post-conviction collateral attack, this Court has never held as a point of law that actual or implied incarceration is required to demonstrate judicially cognizable impingement of liberty in order to invoke habeas jurisdiction of the courts. Indeed, we have expressly acknowledged “that many state and federal courts have determined that parole or probation is sufficient restriction of freedom to warrant a writ [of habeas corpus] be issued.” Kemp v. State, 203 W.Va. 1, 2 n. 3, 506 S.E.2d 38, 39 n. 3 (1997).2 Other courts have explained the basis of our Kemp comment. For example, the Supreme Court of Washington in Monohan v. Burdman, aptly summarized the reasons for permitting parolees to pursue habeas corpus actions regardless of the substance of the actual challenge raised by explaining that:
[T]he restrictions, limitations, and conditions attached to the usual parole status constitute a form of “custody” ... because a parolee, unlike the ordinary citizen is subject to supervision by his parole officer, limited in his mode, manner, and place of living and travel, restricted as to his associates and type of employment, and subject to reincarceration in the event of a breach of any conditions of his parole. Thus he is not a free man in the commonly accepted sense.
530 P.2d at 336-37. A similar litany of restrictions on liberty was recited by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 478, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and the high court added dimension to the level of restraint on freedom a parolee may encounter in one of its more recent decisions. In Samson v. California, --- U.S. ---, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), the Supreme Court examined the constitutionality of a California law requiring a candidate for parole to provide advance consent to warrantless search and seizure for any or no reason by a law enforcement officer as a condition for release on parole. In reaching the conclusion that parolees are not protected under the Fourth Amendment against suspicionless searches by law enforcement, the high court observed that “parolees enjoy even less of the average citizen‘s absolute liberty than do probationers.” Id. at 2198.
On the other hand, I appreciate that the right of a parolee to seek post-conviction relief through habeas corpus is not universally recognized, (see Andrea G. Nadel, When is a Person in Custody of Governmental Authorities for Purpose of Exercise of State Remedy of Habeas Corpus-Modern Cases, 26 A.L.R.4th 455, 466 (1983)). However, the raw numbers on each side of this issue is not a determinative factor in this debate considering the constitutional dimension habeas corpus has in this state.
The judicial authority granted-and the concomitant duty imposed-for habeas corpus proceedings under the West Virginia Constitution state simply and plainly the constitutional priority of our Court‘s jurisdiction to address cases in which any person duly alleges and seeks a remedy for material impediments to that person‘s liberty. The ma-jority
3. Writ of Coram Nobis
The majority failed once again to answer a simple-if somewhat obscure-pleading question that has been left unanswered in our courts since the West Virginia Rules of Civil Procedure became effective nearly fifty years ago: When the writ of coram nobis was abolished in civil cases in 1960,3 did the writ survive for use in criminal cases? Rather than give a forthright answer to this question, the majority suggested Appellant might have relief from a clear sentencing error by filing “a motion” in a lower court.4 I see no good reason for this Court to keep sidestepping this question.5
To be clear, this dissent has nothing at all to do with letting parolees go free. The heartfelt concern I raise is that the majority is being less than faithful and resolute in living up to the responsibility entrusted to the judiciary by the people of this state for review by habeas corpus where significant impediments to liberty interests are alleged. As long as freedoms may be unlawfully curtailed, the people of this state have said through their constitution that there is a right to seek vindication of those freedoms in the judicial system by means of habeas corpus. Accordingly, I dissent from the majority‘s refusal to fulfill the sacred obligation entrusted to the courts in this case.