Earl C. v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex ( 2022 )

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Earl C.,
Petitioner Below, Petitioner
vs.) No. 21-0749 (Kanawha County 09-F-147)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Earl C. 1 appeals the August 19, 2021, order of the Circuit Court
of Kanawha County denying his amended petition for a writ of habeas corpus. Respondent Donnie
Ames, Superintendent, Mt. Olive Correctional Complex, by counsel Patrick Morrisey and William
M. Longwell, filed a response in support of the circuit court’s order. Petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In 2009, petitioner was indicted in the Circuit Court of Kanawha County on six counts of
third-degree sexual assault and six counts of sexual abuse by a parent, guardian, custodian, or
person in a position of trust. According to the indictment, petitioner committed the offenses
“within three years prior to the date of the finding of this [i]ndictment.” At the time of the offenses,
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va.
254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W. Va. 24, 435 S.E.2d 162 (1993); State v.
Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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petitioner was approximately thirty-eight years old and the victim was approximately twelve years
old.
Pursuant to a plea agreement, petitioner pleaded guilty to four counts of third-degree sexual
assault and three counts of sexual abuse by a parent, guardian, custodian, or person in a position
of trust. In exchange, the State dismissed the remaining counts of the indictment. The circuit court
entered a sentencing order on December 8, 2009. For petitioner’s convictions for third-degree
sexual assault, the circuit court sentenced him to four concurrent terms of one to five years of
incarceration. For petitioner’s convictions for sexual abuse by a parent, guardian, custodian, or
person in a position of trust, the circuit court sentenced him to three terms of ten to twenty years
of incarceration. The circuit court ran petitioner’s first sentence for sexual abuse by a parent,
guardian, custodian, or person in a position of trust concurrent to his sentences for third-degree
sexual assault. However, the circuit court ran petitioner’s remaining two sentences for sexual abuse
by a parent, guardian, custodian, or person in a position of trust consecutive to each other and his
other sentences. Accordingly, the circuit court imposed an aggregate sentence of thirty to sixty
years of incarceration.
Following the entry of the December 8, 2009, sentencing order, the circuit court entered a
commitment order on December 23, 2009, signed by the circuit court judge, the circuit court clerk,
and a deputy circuit clerk, certifying the circuit court’s judgment to the West Virginia Division of
Corrections 2 (“DOC”) to “serve as the commitment of [petitioner].” Petitioner appealed from his
convictions and sentences on January 15, 2010. This Court, by order entered on March 11, 2010,
refused the appeal.
Petitioner filed a series of motions for a reduction of sentence. An amended motion for a
reduction of sentence was filed by petitioner’s counsel on January 10, 2011. The circuit court held
a hearing on the amended motion on February 10, 2011. At the hearing, petitioner argued that the
circuit court should run all of his sentences concurrent to each other for an aggregate sentence of
ten to twenty years of incarceration. The State opposed petitioner’s amended motion for a
reduction of sentence, noting that, while he admitted that he had sex with the twelve-year-old
victim, “he continually tried to blame her.” The circuit court did not rule on the amended motion
at the hearing and took the matter under advisement.
On April 7, 2011, the circuit court partially granted petitioner’s amended motion for a
reduction of sentence by entering an amended sentencing order prepared by counsel for the State.3
The circuit court made no change to the four concurrent one-to-five year sentences for third-degree
sexual assault. However, unlike in the original sentencing order, the circuit court ran only one
2
The West Virginia Division of Corrections is now known as the West Virginia Division
of Corrections and Rehabilitation. See W. Va. Code §§ 15A-3-2(a) and (b).
3
The circuit court initially entered its amended sentencing order on March 21, 2011. The
record does not reveal the reason that the circuit court entered an additional amended sentencing
order on April 7, 2011. Based upon our review, the two amended sentencing orders are identical.
2
(instead of two) of petitioner’s three ten-to-twenty year sentences for sexual abuse by a parent,
guardian, custodian, or person in a position of trust consecutive to his other sentences.
Accordingly, the circuit court reduced petitioner’s aggregate sentence from thirty to sixty years of
incarceration to twenty to forty years of incarceration and noted petitioner’s objection to its partial
denial of his amended motion. The circuit court further noted that its amended sentencing order
was being entered nunc pro tunc to December 9, 2009, the date of the original sentencing order.
On April 15, 2011, the circuit court entered an amended commitment order that conflicted
with its April 7, 2011, amended sentencing order. Notwithstanding the consecutive sentence
imposed in the April 7, 2011, amended sentencing order, the circuit court’s amended commitment
order listed all of petitioner’s sentences as being concurrent to each other for an aggregate sentence
of ten to twenty years of incarceration. Despite its inconsistency with the April 7, 2011, amended
sentencing order, the April 15, 2011, amended commitment order referenced that order’s notation
that it was being entered nunc pro tunc as authority for petitioner’s effective sentence date
remaining as December 9, 2009.
Subsequently, petitioner initiated a habeas corpus proceeding in the circuit court, which
was given the same case number as petitioner’s criminal case. The circuit court appointed habeas
counsel who filed an amended habeas petition on petitioner’s behalf on March 12, 2021. In his
amended petition, petitioner included a claim that he had already discharged his aggregate sentence
of incarceration due to the conflict between the April 7, 2011, amended sentencing order and the
April 15, 2011, amended commitment order regarding the length or the aggregate sentence.
Petitioner argued that “it can be assumed that [his amended motion for a reduction of sentence]
was granted, which requested a ten to twenty year sentence.” 4
At a July 14, 2021, habeas corpus hearing, respondent acknowledged that the April 7, 2011,
amended sentencing order and the April 15, 2011, amended commitment order conflicted with
each other. However, respondent agreed with the circuit court that commitment orders are usually
prepared by the circuit clerk’s office rather than the circuit court judge. Respondent further stated
that the April 15, 2011, amended commitment order entered in petitioner’s case “appears to be the
standard form . . . that is used by the [circuit clerk].”
The circuit court, by order entered on August 19, 2021, rejected petitioner’s habeas
claims, including the claim that he had already served his aggregate sentence of ten to twenty years
of incarceration. 5 The circuit court found that, notwithstanding the April 15, 2011, amended
4
In claiming that he had already discharged an aggregate sentence of ten to twenty years of
incarceration, petitioner noted in his amended habeas petition that, pursuant to West Virginia Code
§ 15A-4-17(c), incarcerated persons in the DOC’s custody receive one day of credit for every day
they exhibit good conduct while incarcerated.
5
Petitioner asserted other claims in his habeas proceeding below. However, on appeal,
petitioner challenges only the denial of his habeas petition as to the circuit court’s rejection of his
claim that he had already served an aggregate sentence of ten to twenty years of incarceration due
(continued . . .)
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commitment order, “there is no indication the [c]ourt meant to reduce petitioner’s sentence to one
term of ten to twenty years[.]” The circuit court further found that the April 15, 2011, amended
commitment order, “presumably prepared by the [circuit clerk’s office],” conflicted with the April
7, 2011, amended sentencing order, “which was prepared by counsel [for the State].” Accordingly,
the circuit court concluded that petitioner was not entitled to habeas relief as the April 15, 2011,
amended commitment order contained “a typographical error.”
Petitioner now appeals the circuit court’s August 19, 2021, order denying the amended
habeas petition. We review a circuit court’s order denying a habeas petition under the following
standard:
“In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review
the final order and the ultimate disposition under an abuse of discretion standard;
the underlying factual findings under a clearly erroneous standard; and questions
of law are subject to a de novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va.
417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, Anstey v. Ballard, 237 W. Va. 411, 787 S.E.2d 864 (2016). Additionally, in Syllabus
Point 1 of State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997), we held that “West
Virginia Code section 53-4A-7(c) (1994) requires a circuit court denying or granting relief in a
habeas corpus proceeding to make specific findings of fact and conclusions of law relating to each
contention advanced by the petitioner, and to state the grounds upon which the matter was
determined.” 6
On appeal, petitioner argues that the circuit court erred in rejecting his claim that he had
already discharged his aggregate sentence of ten to twenty years of incarceration. Although
petitioner describes the circuit court’s findings as “limited” due to (1) its belief that the April 15,
2011, amended commitment order contained an error regarding the length of petitioner’s aggregate
sentence and (2) its incorrect reading of the February 10, 2011, hearing transcript, we find that
petitioner’s argument is not that the circuit court failed to make sufficient findings but that it erred
to the conflict between the April 7, 2011, amended sentencing order and the April 15, 2011,
amended commitment order regarding the length of the aggregate sentence.
6
West Virginia Code § 53-4A-7(c) provides, in pertinent part:
When the court [in a post-conviction habeas corpus proceeding] determines to deny
or grant relief . . ., the court shall enter an appropriate order . . . . In any order entered
in accordance with the provisions of this section, the court shall make specific
findings of fact and conclusions of law relating to each contention or contentions
and grounds (in fact or law) advanced, shall clearly state the grounds upon which
the matter was determined, and shall state whether a federal and/or state right was
presented and decided.
4
in finding that his sentence, as reflected in the April 15, 2011, amended commitment order, was
incorrect as a result of a typographical error.
Based upon our review of the record, including the February 10, 2011, hearing transcript,
we find that the circuit court did not err in finding that the sentence in the April 15, 2011, amended
commitment order contained a typographical error. “The real authority by which the [DOC]
detains a petitioner is the valid final judgment of the trial court in which he was convicted,” and
the commitment order prepared by the circuit clerk’s office, “which is transmitted to [the DOC],
is only evidence of such authority.” State ex rel. Clevenger v. Coiner, 155 W. Va. 853, 855-56,
188 S.E.2d 773, 775 (1972) (citing State ex rel. Roberts v. Tucker, 143 W. Va. 114, 118, 100
S.E.2d 550, 552-53 (1957)); see also Cart v. Seifert, No. 12-0342, 2013 WL 1286076, at *2 (W.
Va. Mar. 29, 2013) (memorandum decision) (affirming the denial of a habeas claim that petitioner
was entitled to benefit from the sequence of his sentences set forth in the commitment order, which
contradicted the way the sentences were listed in the sentencing order).
Here, the final judgment in petitioner’s criminal case was the April 7, 2011, amended
sentencing order, which partially granted his amended motion for a reduction of sentence by
reducing petitioner’s aggregate sentence from thirty to sixty years of incarceration to twenty to
forty years of incarceration. Accordingly, we concur with the circuit court’s findings that “there is
no indication the [c]ourt meant to reduce petitioner’s sentence to one term of ten to twenty years”
and that the April 15, 2011, amended commitment order, which was based upon a standard form
and not prepared by the court or counsel, was erroneous.
“Under the statute of this state dealing with habeas corpus proceedings . . .[,] [a] petitioner
has the burden of proving by a preponderance of the evidence the allegations contained in his
petition or affidavit which would warrant his release.” Frank A. v. Ames, 246 W. Va. 145, __, 866
S.E.2d 210, 230 (2021) (quoting Syl. Pt. 1, in part, State ex rel. Scott v. Boles, 150 W. Va. 453,
453, 147 S.E.2d 486, 487 (1966)). We find that petitioner failed to meet this burden as he did not
establish by a preponderance of the evidence that the April 7, 2011, amended sentencing order was
incorrect. Therefore, we conclude that the circuit court properly rejected petitioner’s claim that he
had already discharged his aggregate sentence because the April 7, 2011, amended sentencing
order, which is the controlling order, provides that he is serving an aggregate sentence of twenty
to forty years of incarceration.
For the foregoing reasons, we affirm the circuit court’s August 19, 2021, order denying
petitioner’s amended petition for a writ of habeas corpus.
Affirmed.
ISSUED: September 20, 2022
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CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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