State of West Virginia v. Andrew Wayne Miller ( 2023 )

FILED
STATE OF WEST VIRGINIA January 18, 2023
SUPREME COURT OF APPEALS EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
State of West Virginia,
Plaintiff Below, Respondent
vs.) No. 21-0519 (Kanawha County No. 19-F-608)
Andrew Wayne Miller,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Andrew Wayne Miller appeals the amended sentencing order entered by the
Circuit Court of Kanawha County on June 2, 2021, that corrected the credit granted to him for time
served, revoked his post-conviction bond, and sentenced petitioner to a determinate term of three
years. The State of West Virginia responds in support of circuit court’s order. 1 The State also
asserts that this appeal is moot. Upon our review, we determine that oral argument is unnecessary
and that a memorandum decision is appropriate. See W. Va. R. App. Proc. 21. This Court
concludes that this appeal is dismissed as moot pursuant to Rule 27(b) of the Rules of Appellate
Procedure.
On July 10, 2020, petitioner pled guilty to being a prohibited person in possession of a
firearm. He was found guilty and granted post-conviction bond with a condition of home
confinement until the sentencing hearing scheduled for September 9, 2020. On September 1, 2020,
petitioner was arrested on alleged violations of the home confinement bond conditions. A notice
of violation, with a notice of final hearing scheduled for September 9, 2020, was filed the following
day listing violations related to a positive drug test and a failure to pay home confinement fees. On
September 9, 2020, petitioner appeared, admitted the home confinement violations and waived
proceeding with the hearing. He confirmed, and the circuit court found, that this was a knowing,
free and voluntary waiver of hearing and admission of violations, made after consultation with
counsel. Petitioner’s bond was revoked and the circuit court proceeded immediately to the
sentencing hearing.
Considering the home confinement violations, petitioner’s history, underlying offense, that
the underlying offense was committed while on parole, and that there was some involvement of
narcotics, the circuit court sentenced petitioner to a determinate term of three years with credit for
time served. After consideration of petitioner’s Rule 35 motion for reconsideration seeking to
1
Petitioner appears by Daniel L. Holstein; respondent appears by Patrick Morrisey and
Katherine M. Smith.
1
reduce his sentence, to have his sentence run concurrently with any sentence related to parole
violations, and that credit for time served be corrected, the circuit court entered an amended
sentencing order on June 2, 2021, correcting petitioner’s credit for time served but otherwise
denying the motion. Petitioner appeals this order, seeking remand to grant a preliminary hearing
on the bond revocation, a new final hearing on the post-conviction bond violations if necessary,
and resentencing on the underlying violation. We take notice, based on respondent’s supplemental
appendix and representation, that petitioner discharged his sentence in this case on July 27, 2021. 2
In this appeal petitioner challenges only the procedure leading to the revocation of his post-
conviction bond and his sentence on the underlying offense, not the underlying conviction. Given
that petitioner is not challenging his conviction and has discharged his sentence in this case, the
appeal of the post-conviction bond revocation and sentence is moot. See Syl., State v. J.C., 241 W.
Va. 712, 828 S.E.2d 100 (2019) (“‘[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 el. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873(1908)”); State v. Merritt, 221 W. Va. 141, 143, 650 S.E.2d 240, 242 (2007) (appeal of an order
denying a stay of sentence moot upon completion of the sentence). Based on the limited nature of
this appeal, we find no basis for making an exception to the mootness doctrine and no request to
do so has been made by petitioner. See Syl. Pt. 1, Israel v. W. Va. Secondary Sch. Activities
Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (1989) (discussing facts to be considered in deciding
whether to address technically moot issues).
For the foregoing reasons, we dismiss this appeal as moot.
Dismissed.
ISSUED: January 18, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
DISQUALIFIED:
Justice John A. Hutchison
2
At the time respondent submitted its brief, petitioner remained incarcerated on a sentence
in another case.
2