STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia,
 

Plaintiff Below, Respondent November 18, 2016
 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS vs) No. 16-0032 (Brooke County 13-F-72 and 14-F-45) OF WEST VIRGINIA 

Adam Barnhart,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Adam Barnhart, pro se, appeals the January 5, 2016, order of the Circuit Court of 

Brooke County denying his motion for correction of illegal sentence. Respondent State of West 

Virginia, by counsel Julie A. Warren, filed a summary response in support of the circuit court’s 

order. 

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 Case No. 13-F-72, petitioner was indicted for murder in the first degree. In Case No. 

14-F-45, petitioner was charged by information of two counts of wanton endangerment with a 

firearm. The parties agreed to resolve both cases through a plea bargain. The State agreed to 

dismiss the indictment for first degree murder in No. 13-F-72 in exchange for petitioner agreeing 

to plead guilty to the lesser included offense of murder in the second degree. Petitioner agreed to 

waive his right to be indicted in No. 14-F-45 and to proceed in that case on the information. The 

parties agreed that petitioner would be sentenced to a definite term of forty years of incarceration 

for second degree murder. With regard to the two counts of wanton endangerment with a firearm, 

the parties agreed that petitioner would be sentenced to two definite terms of five years of 

incarceration. The parties further agreed that petitioner would serve his sentences consecutively 

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for an aggregate term of fifty years of incarceration. Finally, petitioner agreed to waive “the right 

to any parole [eligibility] on the of the above enumerated sentences[.]”1 

Prior to accepting petitioner’s guilty pleas for second degree murder and two counts of 

wanton endangerment with a firearm, the circuit court “question[ed] him” regarding the waiver of 

“his constitutional, statutory, and procedural rights in this matter.”2 The circuit court noted the 

“specific condition of the plea agreement” that required petitioner to waive his right to parole 

eligibility. The circuit court found that petitioner understood his constitutional, statutory, and 

procedural rights, “indicated that he discussed the same with his counsel, . . . and . . . wished to 

waive those rights and proceed with the plea agreement[.]” Accordingly, the circuit court found 

that petitioner “knowingly, intelligently, and voluntarily waived” his constitutional, statutory, and 

procedural rights. 

The circuit court further found that petitioner understood the plea agreement’s “terms and 

conditions” and that petitioner “knowingly, intelligently, and voluntarily” entered his guilty pleas. 

Accordingly, the circuit court accepted petitioner’s pleas, adjudged him guilty, and sentenced him 

consistent with the parties’ agreement. 

On October 13, 2015, petitioner filed motion for correction of illegal sentence pursuant to 

Rule 35(a) of the West Virginia Rules of Criminal Procedure. Petitioner asserted that his aggregate 

sentence was illegal because the parties’ agreement rendered him ineligible for parole in violation 

of West Virginia Code § 62-12-13(b)(1)(A), which provides that a defendant “is eligible for parole 

if he or she: (1)(A) . . . has served one fourth of his or her definite term sentence.” By order entered 

January 5, 2016, the circuit court acknowledged that the parties did not have the authority to enter 

into—nor did it have the authority to accept—a plea agreement specifying an illegal sentence. 

However, the circuit court found that parole eligibility constituted a statutory right that petitioner 

was capable of waiving as long as he did so knowingly, intelligently, and voluntarily. Given the 

circuit court’s finding at the time of petitioner’s guilty pleas that the waiver of his rights was valid, 

the court found that the requirement that petitioner waive parole eligibility was not in 

contravention of statute and accordingly did not make the sentence to which petitioner agreed 

illegal. Therefore, the circuit court denied petitioner’s motion. 

Petitioner now appeals the circuit court’s January 5, 2016, order denying petitioner’s 

motion for correction of illegal sentence pursuant to Rule 35(a). In syllabus point one of State v. 

Marcum, __ W.Va. __, __ S.E.2d __, 2016 WL 5957386 (W.Va. October 11, 2016), we set forth 

the pertinent standard of review: 

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In State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 738-39 (1977), we found that 

“[o]ne convicted of a crime and sentenced to the penitentiary is never entitled to parole,” but is 

“[only] eligible to be considered for parole.” (citation omitted and emphasis in original). 

2

See Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975). 

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“In reviewing the findings of fact and conclusions of law of a circuit court 

concerning an order on a motion made under Rule 35 of the West Virginia Rules of 

Criminal Procedure, we apply a three-pronged standard of review. We review the 

decision on the Rule 35 motion under an abuse of discretion standard; the 

underlying facts are reviewed under a clearly erroneous standard; and questions of 

law and interpretations of statutes and rules are subject to a de novo review.” 

Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996). 

On appeal, petitioner makes the same argument he made to the circuit court: the parties did 

not have the authority to enter into—nor did the court have the authority to accept—a plea 

agreement specifying an illegal sentence. See State ex rel. Gessler v. Mazzone, 212 W.Va. 368, 

373, 572 S.E.2d 891, 896 (2002). In making this argument, we find that petitioner does not 

challenge the length of his aggregate sentence of fifty years of incarceration because he does not 

ask for the parties’ plea agreement to be vacated. Rather, petitioner states that his preferred remedy 

is have to the provision whereby he agreed to waive parole eligibility excised from the agreement.3 

Thus, we find that petitioner’s argument is solely based on his contention that this provision so 

tainted the plea agreement with illegality that it rendered the sentence specified by that agreement 

illegal. 

Petitioner relies on the decision of the United States Court of Appeals for the Eleventh 

Circuit in Bates v. Secretary, Florida Dept. of Corrections, 768 F.3d 1278 (11th Cir. 2014), to 

argue that a criminal defendant may not waive his right to parole eligibility. We find that the 

question that the Eleventh Circuit had to decide in Bates was not whether a defendant may waive 

his right to parole eligibility. Rather, the Eleventh Circuit addressed the question of whether the 

jury in the penalty phase of a capital murder case should have been instructed that the petitioner 

was ineligible for parole if given a life sentence—based on his agreement to waive parole 

eligibility—despite the fact, at the time of his offense, the relevant statute provided that he would 

be eligible for parole after serving twenty-five years of incarceration. 768 F.3d at 1300. As such, 

we find that Bates is readily distinguishable from the instant case and conclude that petitioner’s 

agreement to waive parole eligibility did not render petitioner’s sentence illegal. 

We agree with the State that the circuit court correctly determined that parole eligibility 

constituted a statutory right that petitioner knowingly, intelligently, and voluntarily waived. Both 

constitutional and statutory rights are capable of being waived. See Asbury v. Mohn, 162 W.Va. 

662, 665, 256 S.E.2d 547, 549 (1979) (stating that “the right to appeal may be waived”); Syl. Pt. 2, 

Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975) (holding that “[a] criminal defendant can 

knowingly and intelligently waive his constitutional rights . . . when such knowing and intelligent 

waiver is conclusively demonstrated on the record”). Upon our review of the record, we find that 

3

In Gressler, we found that the proper remedy if a plea agreement is legally impossible to 

fulfill is for the agreement to be vacated in its entirety and the parties to be placed, as nearly as 

possible, in the positions they occupied prior to the entry of the plea agreement. 212 W.Va. at 374, 

572 S.E.2d at 897. 

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petitioner’s waiver of parole eligibility was valid. Therefore, we conclude that the circuit court did 

not abuse its discretion in denying petitioner’s motion for correction of illegal sentence. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 18, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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