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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2013 Term 

____________ FILED 

No. 11-1352 April 11, 2013 ____________ released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

CARLOS A. LEEPER-EL, 

Petitioner Below, Petitioner 

v. 

ADRIAN HOKE, Warden,
 

Huttonsville Correctional Center,
 

Respondent Below, Respondent
 

Appeal from the Circuit Court of Ohio County
 

The Honorable Arthur M. Recht, Judge
 

Case Number 11-C-188
 

DISMISSED
 

Submitted: March 26, 2013 

Filed: April 11, 2013 

Christopher J. Prezioso, Esq. Patrick Morrisey, Esq.
 

Luttrell & Prezioso, PLLC Attorney General
 

Charles Town, West Virginia Marland L. Turner, Esq.
 

Counsel for Petitioner Assistant Attorney General
 

Charleston, West Virginia 

Counsel for Respondent 

The Opinion of the Court was delivered PER CURIAM. 
 

 

 

 

 

 

 

 

 

SYLLABUS
 

“Three factors to be considered in deciding whether to address technicallymoot 

issues are as follows: first, the court will determine whether sufficient collateral 

consequences will result from determination of the questions presented so as to justify relief; 

second, while technically moot in the immediate context, questions of great public interest 

may nevertheless be addressed for the future guidance of the bar and of the public; and third, 

issues which may be repeatedly presented to the trial court, yet escape review at the appellate 

level because of their fleeting and determinate nature, may appropriately be decided.” 

Syllabus Point 1, Israel by Israel v. West Virginia Secondary Schools Activities Commission, 

182 W.Va. 454, 388 S.E.2d 480 (1989). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Per Curiam: 

Petitioner Carlos A. Leeper-El (“Mr. Leeper-El”) filed a petition for a writ of 

habeas corpus with the Circuit Court of Ohio County arguing that his plea agreement was 

defective because it contained a promise – that his state and federal sentences would be run 

concurrently – which was not fulfilled or that was unfulfillable. Mr. Leeper-El requested that 

he be discharged from state custody so that he could immediately begin serving his federal 

prison sentence. The circuit court denied this petition on September 8, 2011. Mr. Leeper-El 

thereafter filed the present appeal arguing that the circuit court erred in denying his writ 

because 1) he received ineffective assistance of counsel and 2) his plea agreement was based 

on a promise which was not fulfilled or that was unfulfillable. 

While the instant appeal was pending, Mr. Leeper-El was paroled from the 

West Virginia Department of Corrections and he is no longer in the custody of the State of 

West Virginia. Mr. Leeper-El is currently in federal custody, serving his federal criminal 

sentence at a federal prison in Philadelphia, Pennsylvania. Shortly before oral argument in 

this matter, this Court was informed that the federal authorities credited Mr. Leeper-El for 

all of the time he served in state custody. Thus, his state and federal sentences were 

effectively served concurrent to each other. Because Mr. Leeper-El is no longer in the 

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custody of the State of West Virginia and has obtained the relief he sought in his habeas 

petition, we find that the instant appeal is moot.1 

I. Facts & Background 

On April 8, 2005, Mr. Leeper-El was granted supervised release from federal 

custody.2 Approximatelyfour months after being released from federal custody, Mr. LeeperEl was charged with first degree robbery in Ohio County, West Virginia. He subsequently 

entered a plea agreement with the State, agreeing to plead guilty to the lesser included 

offense of second degree robbery. 

In exchange for this guilty plea, the State agreed to recommend that “any 

sentence imposed by the [Circuit] Court run concurrent to any Federal sentence imposed by 

the United States District Court for violation of his supervised release.” The plea agreement 

informed Mr. Leeper-El that “any recommendation” made by the State to the circuit court “is 

1 While this case was pending before the Court, Patrick Morrisey was sworn into 

office as Attorney General for the State of West Virginia, replacing former Attorney General 

Darrell V. McGraw, Jr. 

2 The appendix record contains a brief description of Mr. Leeper-El’s underlying 

criminal offense that led to his federal incarceration. Based on the limited information in the 

record, it appears that Mr. Leeper-El was convicted of armed bank robbery in 1982 and 

received a twenty-five year federal prison sentence. 

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non-binding upon the Court and the sentence imposed by the Court is in the sole and 

unfettered discretion of the Court.”3 

On January 6, 2006, the circuit court held a sentencing hearing. During this 

hearing, counsel for Mr. Leeper-El was aware that the promise of a concurrent state and 

federal sentence was dependent on whether the federal authorities were going to institute 

supervised release revocation proceedings against Mr. Leeper-El.4 Mr. Leeper-El’s lawyer 

informed the circuit court that 

the prosecutor agreed also to run this [sentence] concurrent with 

his federal time. We have since found out that the feds didn’t 

feel a necessity to do anything, obviously we know why. So 

they may pick it up or they may not pick it up, even after the 

sentencing. 

3 The plea agreement also included the State’s promise not to file a recidivist 

information against Mr. Leeper-El. 

4 28 C.F.R. § 2.47 [1996] sets forth the options that are available to federal authorities 

when a person on supervised release begins serving a new state sentence. It says, 

(c) If the prisoner is serving a new state or local sentence, the 

Regional Commissioner, following a dispositional record review 

may: 

(1) Withdraw the detainer and order reinstatement of the parolee 

to supervision upon release from custody, or close the case if the 

expiration date has passed. 

(2) Order a revocation hearing to be conducted by a hearing 

examiner or an official designated by the Regional 

Commissioner at the institution in which the parolee is confined. 

(3) Let the detainer stand and order further review at an 

appropriate time. If the warrant is not withdrawn and no 

revocation hearing is conducted while the prisoner is in state or 

local custody, an institutional revocation hearing shall be 

conducted after the prisoner's return to federal custody. 

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Mr. Leeper-El’s lawyer further demonstrated his awareness that the promise of concurrency 

was dependent on the federal authorities when he asked the circuit court to allow Mr. LeeperEl to have a hearing pursuant to Rule 35(b) of the West Virginia Rules of Criminal 

Procedure5 “depending on what the feds do.” The circuit judge stated that he would take a 

Rule 35(b) motion under advisement if the circumstances giving rise to such a motion 

occurred. 

The circuit judge acknowledged that the plea agreement called for the state 

sentence to run concurrent to the federal sentence. However, the circuit judge told Mr. 

Leeper-El, “I would just caution you not to be relying on the fact that there would be a 

material change in your sentence.” The circuit judge made it clear that the concurrency of 

the state and federal sentences was contingent on the actions taken by the federal authorities. 

The circuit judge stated, “To the extent that it’s possible, you are to put in the order that the 

sentence should be served in the federal penitentiary system, but I do not have the authority 

5 Rule 35(b) of the West Virginia Rules of Criminal Procedure states, 

(b) Reduction of Sentence. – A motion to reduce a 

sentence may be made, or the court may reduce a sentence 

without motion within 120 days after the sentence is imposed or 

probation is revoked, or within 120 days after the entry of a 

mandate by the supreme court of appeals upon affirmance of a 

judgment of a conviction or probation revocation or the entry of 

an order by the supreme court of appeals dismissing or rejecting 

a petition for appeal of a judgment of a conviction or probation 

revocation. The court shall determine the motion within a 

reasonable time. Changing a sentence from a sentence of 

incarceration to a grant of probation shall constitute a 

permissible reduction of sentence under this subdivision. 

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to order them [the federal government] to take it.” The circuit court thereafter accepted the 

plea agreement and entered a commitment order sentencing Mr. Leeper-El as follows, 

It is adjudged that the Defendant is hereby committed to 

the custody of the commissioner of the West Virginia Division 

of Corrections, or his authorized representative for 

imprisonment for a period of 5-18 years WVDOC to run 

concurrent with federal sentence. 

Mr. Leeper-El filed a pro se petition for a writ of habeas corpus on June 16, 

2011. Mr. Leeper-El argued that his guilty plea to second-degree robbery “was unlawfully 

induced by a promise that he would serve his sentence while serving an anticipated federal 

sentence for violation of supervised release from federal custody.” His habeas corpus 

petition requested that the circuit court grant him an unconditional discharge from state 

custody so that he could begin serving his federal sentence.6 

6 Mr. Leeper-El filed his habeas corpus petition pursuant to W.Va. Code § 53-4A-1(a), 

which states 

(a) 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 

(continued...) 

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The circuit court denied Mr. Leeper-El’s habeas corpus petition on September 

8, 2011. The circuit court found that the terms of the plea agreement did not include “any 

firm promise as to the outcome of his sentencing.” Instead, the agreement provides that the 

State would recommend that his state sentence be served concurrent to his federal supervised 

release violation. The circuit court also found that the recommendation of concurrency was 

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(...continued) 

sentence, the setting aside of the plea, conviction and sentence, 

or other relief, if and only if such contention or contentions and 

the grounds in fact or law relied upon in support thereof have 

not been previously and finally adjudicated or waived in the 

proceedings which resulted in the conviction and sentence, or in 

a proceeding or proceedings on a prior petition or petitions filed 

under the provisions of this article, or in any other proceeding or 

proceedings which the petitioner has instituted to secure relief 

from such conviction or sentence. Any such petition shall be 

filed with the clerk of the supreme court of appeals, or the clerk 

of any circuit court, said supreme court of appeals and all circuit 

courts of this State having been granted original jurisdiction in 

habeas corpus cases by the Constitution of this State, or with the 

clerk of any court of record of limited jurisdiction having 

criminal jurisdiction in this State. Jurisdiction is hereby 

conferred upon each and every such court of record of limited 

jurisdiction having criminal jurisdiction (hereinafter for 

convenience of reference referred to simply as a “statutory 

court”) to refuse or grant writs of habeas corpus ad 

subjiciendum in accordance with the provisions of this article 

and to hear and determine any contention or contentions and to 

pass upon all grounds in fact or law relied upon in support 

thereof in any proceeding on any such writ made returnable 

thereto in accordance with the provisions of this article. All 

proceedings in accordance with this article shall be civil in 

character and shall under no circumstances be regarded as 

criminal proceedings or a criminal case. 

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made contingent on the bringing of federal parole violation 

proceedings in the United States District Court. Were federal 

parole officials to bring violation proceedings, and were a 

federal sentence imposed, the sentencing order . . . . would 

permit Petitioner to continue serving his state sentence while in 

federal custody. 

After the circuit court denied his habeas corpus petition, Mr. Leeper-El filed 

the instant appeal. While the instant appeal was pending, Mr. Leeper-El was paroled from 

the West Virginia Department of Corrections and he is no longer in the custody of the State 

of West Virginia. Mr. Leeper-El is currently in federal custody serving a federal criminal 

sentence. The terms of Mr. Leeper-El’s federal sentence are set forth in his Federal 

Expedited Revocation document. This revocation document states that Mr. Leeper-El was 

sentenced to 90 months for violating his supervised release agreement. The revocation 

document also states that Mr. Leeper-El received federal credit for all 85 months he spent 

in state custody while serving his state sentence. Because he received credit for all 85 

months he spent in state custody, Mr. Leeper-El only has to serve five months in federal 

custody.7 Thus, Mr. Leeper-El’s state and federal sentences were effectively run concurrent 

to one another. 

7 Mr. Leeper-El’s estimated release date from federal custody is April 13, 2013. 

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II. Standard of Review &
 

Analysis
 

We begin by addressing whether the instant appeal is moot. Mr. Leeper-El’s 

habeas petition requested that he be discharged from state custody so that he could begin 

serving his federal sentence for violating his federal supervised release. Mr. Leeper-El has 

been paroled from state custody. He is currently serving his federal sentence. Because Mr. 

Leeper-El has received the relief he sought in his habeas petition, the State argues that the 

present appeal is moot. We agree. 

In Syllabus Point 1 of Israel by Israel v. West Virginia Secondary Schools 

Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989), this Court set forth a threefactor test to be considered in deciding whether to address technically moot issues: 

Three factors to be considered in deciding whether to 

address technically moot issues are as follows: first, the court 

will determine whether sufficient collateral consequences will 

result from determination of the questions presented so as to 

justify relief; second, while technically moot in the immediate 

context, questions of great public interest may nevertheless be 

addressed for the future guidance of the bar and of the public; 

and third, issues which may be repeatedly presented to the trial 

court, yet escape review at the appellate level because of their 

fleeting and determinate nature, may appropriately be decided. 

This Court also discussed when it will consider a technically moot issue in State ex rel. 

Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 156, 697 S.E.2d 740, 748 (2010), stating 

that 

although changes may occur during the course of litigation that 

typically would render a case moot, the particular circumstances 

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attending such changes may preserve the merits of the case so as 

to save it from mootness and to permit its consideration by the 

presiding tribunal. See Hart v. National Coll. Athletic Ass’n, 209 

W.Va. 543, 548, 550 S.E.2d 79, 84 (2001) (per curiam) (“[T]he 

simple fact of apparent mootness, in and of itself, does not 

automatically preclude our consideration of [a] matter.”). Thus, 

a case may survive mootness upon a change of circumstances. 

“When collateral effects of a dispute remain and continue to 

affect the relationship of litigants, the case is not moot.” 

Firefighters Local [Union No. 1784 v. Stotts], 467 U.S. [561], 

at 585, 104 S.Ct. [2576], at 2591, 81 L.Ed.2d 483 (O'Connor, J., 

concurring) (footnote and citations omitted). A case also may 

survive mootness despite a change in party status. “As long as 

the parties have a concrete interest in the outcome of the 

litigation, the case is not moot [.]” Firefighters Local, 467 U.S. 

at 571, 104 S.Ct. at 2584 (citation omitted). Finally, “[a] case is 

not rendered moot even though a party to the litigation has had 

a change in status such that he no longer has a legally cognizable 

interest in the litigation or the issues have lost their adversarial 

vitality, if such issues are capable of repetition and yet will 

evade review.” Syl. pt. 1, State ex rel. M.C.H. v. Kinder, 173 

W.Va. 387, 317 S.E.2d 150 (1984). 

In the case sub judice, we find that the Israel factors weigh in favor of the 

State. Mr. Leeper-El received the relief he sought in his habeas petition: he has been released 

from state custody. Additionally, Mr. Leeper-El received federal credit for all 85 months he 

spent in state custody. Because his state and federal sentences were effectively run 

concurrent to each other, we find that the underlying error he complained of is moot. 

Further, we find that Mr. Leeper-El has failed to demonstrate that this case contains an issue 

which may be repeatedly presented to the trial court, yet escapes review at the appellate level. 

Our law on a plea agreement that contains a promise which was not fulfilled or that was 

unfulfillable is clearly set forth in State ex rel. Morris v. Mohn, 165 W.Va. 145, 267 S.E.2d 

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443 (1980), and we find nothing in the instant case that compels us to clarify our holding 

therein.8 

Accordingly, we need not and will not exercise our discretion to decide the 

moot issue raised in this appeal. 

IV. Conclusion 

Having established that the matter is moot, this appeal is dismissed from the 

docket of this Court. 

Dismissed as moot. 

8 Syllabus Point 1 of Morris states 

[a] recognized corollary to the principle that a guilty plea must 

be shown to have been intelligently and voluntarily entered is 

the rule that if the plea is based on a plea bargain which is not 

fulfilled or is unfulfillable, then the guilty plea cannot stand. 

In Morris, a defendant filed a petition for a writ of habeas corpus after the State 

and circuit court promised him that his state and federal sentences would run concurrently 

even though his federal parole revocation proceedings were not imminent. This Court 

granted the defendant’s writ in Morris because the promise was legallyimpossible to perform 

as neither the State nor the circuit court had control over the defendant’s federal parole 

revocation proceedings. In the present case, Mr. Leeper-El was not promised that his state 

sentence would run concurrent to his federal sentence. Instead, the circuit court clearlystated 

during the sentencing hearing that it had no control over the actions of the federal authorities. 

The State and circuit court only promised Mr. Leeper-El that in the event that the federal 

authorities did institute supervised release revocation proceedings while he was serving his 

state sentence, the circuit court would allow him to be transferred to federal custody and to 

serve his state sentence concurrent to his federal sentence. Thus, the present case is clearly 

distinguishable from Morris. 

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