STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Paul White, FILED 

Petitioner Below, Petitioner June 28, 2013 

RORY L. PERRY II, CLERK 

vs) No. 12-0999 (Webster County 11-P-11) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Marvin Plumley, Warden 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Paul White, by counsel Steven B. Nanners, appeals the circuit court’s order 

entered July 30, 2012, denying his petition for writ of habeas corpus. Warden Plumley1 of 

Huttonsville Correctional Center, by counsel Scott E. Johnson, filed a response in support of the 

circuit court’s order. 

This 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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

After being indicted by grand jury, petitioner entered a guilty plea for malicious assault in 

a criminal proceeding before the Circuit Court of Webster County on January 4, 2008. Petitioner 

had a pending criminal case in Upshur County, wherein he was charged with first degree robbery, 

at the same time that the underlying criminal case was pending in Webster County. The agreedupon plea agreement required guilty pleas in both cases and stated that 

[t]he State will make a non-binding recommendation that the defendant be 

sentenced to two to ten years in prison upon his conviction for malicious 

wounding in Webster County. . . . If the defendant is sentenced last in Webster 

County the prosecuting attorney in Webster County will stand silent as to whether 

the sentence in that county run consecutively or concurrently with any sentence 

imposed in Upshur County.” 

Whether the State complied with this provision at the sentencing hearing is at issue here. At the 

sentencing hearing, petitioner’s counsel expressed that petitioner was sorry for what occurred in 

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Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have 

replaced the respondent party’s name with Warden Marvin Plumley. The initial respondent on 

appeal, Adrian Hoke, is no longer the warden of Huttonsville Correctional Center. 

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the case, that the victim provided a statement that she wished for petitioner to not be incarcerated 

for the offense, and that petitioner was currently serving a twenty-year term for a crime in Upshur 

County. Petitioner’s counsel then stated as follows: 

But nevertheless we would ask that with respect to this . . . charge . . . that the 

Court grant [petitioner] probation upon his release in Upshur County. Should the 

Court not feel that’s appropriate, then we would ask the Court to consider 

concurrent sentencing, particularly in light of the victim’s statement, the victim’s 

request that my client not receive incarceration. 

(emphasis added) Following this request, the circuit court asked whether the State had anything to 

say and counsel for the State responded as follows: 

Judge, I don’t know how he could be sorry for doing what he did when he didn’t 

admit – If you recall, this was a Kennedy plea. . . . You know, the victim says 

what she says ‘cause she’s trying to marry the man, or has tried. But she does list 

her injuries: broken jaw bones, tooth went through my bottom lip. That alone 

shows the severity of the beating that we alleged here, and it deserves a prison 

sentence. And shortly after he committed this offense, of course, he committed an 

extremely serious crime in Upshur County which he’s been sentenced for. We’re 

required, Judge, since he has been sentenced in Upshur County, to stand silent as 

to whether this be consecutive or concurrent, so we will. 

Petitioner was sentenced to two to ten years of incarceration and the sentence is to run 

consecutively with the sentence in Upshur County. 

On June 11, 2011, petitioner filed a pro se petition for writ of habeas corpus in the circuit 

court. The circuit court appointed petitioner counsel and, after an omnibus hearing on December 

12, 2012, ordered briefing of the issue of possible prosecutorial misconduct by the assistant 

prosecutor’s breach of the plea bargain and ineffective assistance of counsel. After a hearing, the 

circuit court entered the order denying petitioner habeas corpus relief. In its order, the circuit 

court held that the assistant prosecutor’s statement was within the rights reserved by the State 

because: the statement made was not prejudicial or influential, the State did not make any 

recommendation regarding whether the sentence imposed in Webster County should run 

consecutively or concurrently to the sentence imposed in Upshur County, and petitioner stated at 

the plea hearing that he understood that the court was not bound by the terms of the plea bargain 

agreement at sentencing. The petitioner appeals the denial of habeas corpus relief only on the 

basis of prosecutorial misconduct. 

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. 

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Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). 

Petitioner argues that the circuit court improperly found no breach of the plea agreement 

when it denied petitioner’s habeas corpus petition. The Court has carefully considered the merits 

of each of petitioner’s arguments as set forth in his brief. Petitioner’s counsel at sentencing 

advocated two distinct sentencing possibilities: probation and concurrent sentences. The plea 

agreement required the State to be silent on the latter, but specifically required the State to 

advocate against the former by “mak[ing] a non-binding recommendation that the defendant be 

sentenced to two to ten years in prison . . .” for the offense. We agree with the State and the 

circuit court that the State’s only comment at sentencing regarding concurrent or consecutive 

sentencing was the statement that they would be silent on the issue. 

The circuit court did not abuse its discretion in denying petitioner’s habeas corpus petition 

because the circuit court’s order included specific findings of fact and conclusions of law in 

support of its ruling that the prosecutorial misconduct ground raised in the petition is without 

merit. Finding no error in the denial of habeas corpus relief, the Court incorporates and adopts the 

circuit court’s detailed and well-reasoned “Order Denying Post-Conviction Habeas Corpus 

Petition” dated July 30, 2012, insofar as it addresses the assignments of error alleged herein, and 

directs the Clerk to attach the same hereto. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 28, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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