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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2016 Term 

FILED 

No. 15-1157 November 9, 2016 

_______________ released at 3:00 p.m. 

RORY L. PERRY, II CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 RAYMOND PRATT, 

Petitioner Below, Petitioner 

v. 

DAVID BALLARD, Warden,
 

Mt. Olive Correctional Complex,
 

Respondent Below, Respondent
 

Appeal from the Circuit Court of Marion County
 

The Honorable Robert B. Stone, Judge
 

Civil Action No. 12-C-415
 

AFFIRMED 

Submitted: October 25, 2016 

Filed: November 9, 2016 

Justin Gregory, Esq. Patrick Morrisey, Esq. 

J. Gregory Law Firm, L.C. Attorney General 

Oakland, Maryland David A. Stackpole, Esq. 

Counsel for the Petitioner Assistant Attorney General 

Charleston, West Virginia 

Counsel for the Respondent 

CHIEF JUSTICE KETCHUM delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “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 

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

2. “The Supreme Court of Appeals reviews sentencing orders, including orders of 

restitution made in connection with a defendant’s sentencing, under a deferential abuse of 

discretion standard, unless the order violates statutory or constitutional commands.” Syl. pt. 

1, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Chief Justice Ketchum: 

The petitioner, Raymond Pratt, an inmate serving a life sentence at the Mt. Olive 

Correctional Complex, appeals from the October 29, 2015, order of the Circuit Court of 

Marion County (the “habeas court”) denying him relief in habeas corpus. Pratt’s criminal 

history includes convictions of a number of felonies. The matter now before us concerns his 

April 1976 conviction in Marion County of armed robbery. That conviction resulted in 

Pratt’s life sentence. 

In the October 29, 2015, order, the habeas court set forth reasons for the imposition 

of Pratt’s life sentence as directed by this Court in Pratt v. Holland, 175 W.Va. 756, 338 

S.E.2d 236 (1985). In addition, the habeas court rejected Pratt’s challenge to the West 

Virginia Parole Board’s determination that he is ineligible for parole consideration. 

Pratt contends that the habeas court committed error by including an impermissible 

factor in the basis for his life sentence. The life sentence included the element of mercy, and 

Pratt was released on parole in 1986. While on parole, Pratt was convicted of murder in 

Pennsylvania. Upon completion of his Pennsylvania sentence, Pratt’s parole was revoked 

by the West Virginia Parole Board. Pratt contends that, inasmuch as the Pennsylvania 

murder conviction occurred well after his armed robbery conviction, the habeas court should 

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not have included the Pennsylvania murder conviction in the basis for Pratt’s life sentence. 

Moreover, Pratt contends that the denial of a hearing before the Parole Board prior to the 

Board’s determination of his ineligibility for parole violated his right to due process of law. 

This Court concludes that Pratt’s contentions are without merit. Accordingly, we 

affirm the October 29, 2015, order denying Pratt relief in habeas corpus. 

I. The Underlying Conviction 

On March 10, 1975, the Marion County grand jury returned a one count indictment, 

No. 7216, charging Pratt with the armed robbery of Fairmont Community Foodland. Pratt 

was convicted of that offense in April 1976 following a jury trial. On June 1, 1976, the trial 

court sentenced Pratt to life imprisonment. See W.Va. Code, 61-2-12 [1961] (providing a 

penalty for armed robbery of “not less than ten years”); State ex rel. Faircloth v. Catlett, 165 

W.Va. 179, 181, 267 S.E.2d 736, 737 (1980) (A convicted armed robber may be punished 

by a fixed term of life imprisonment.). 

The trial court imposed the life sentence, rather than a lesser term of years, without 

setting forth a factual basis for the sentence on the record.1 The parties in the current habeas 

1 Pratt had two prior robbery convictions in 1975 in the Circuit Court of 

Monongalia County. In State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978), this Court 

reversed the convictions and awarded new trials. Pratt subsequently pled guilty to the 

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proceeding agree, nevertheless, that the sentence Pratt received was life, “with mercy,” 

thereby rendering him eligible for parole consideration. As a result of delays, including a 

delay in the completion of the trial transcript, Pratt was resentenced several times in order 

to extend his appeal period. However, no direct appeal to this Court from the armed robbery 

conviction was filed. 

II. Prior Collateral Proceedings 

In 1980, this Court issued the opinion State v. Houston, 166 W.Va. 202, 273 S.E.2d 

375 (1980), wherein two defendants convicted of robbery by violence challenged the length 

of their thirty and forty year sentences. Nothing in the record indicated the factual basis upon 

which the penitentiary terms were imposed.2 Remanding the cases for further development, 

this Court held in Houston that, to facilitate meaningful judicial review, an “appropriate 

record shall be made to provide the factual basis” for the sentences. Houston, 166 W.Va. at 

210, 273 S.E.2d at 379. 

robbery charges and was sentenced to two twelve-year terms, the sentences to run 

concurrently. Pratt also has two prior felony convictions in Pennsylvania. Pratt, 161 

W.Va. at 545, 546, 244 S.E.2d at 236. 

2 In Houston, this Court noted: “There is nothing contained in the record by way 

of presentence reports, or a transcript of the sentencing hearing, that would indicate on 

what factual basis the particular terms of the sentences were fixed.” Houston, 166 W.Va. 

at 203, 273 S.E.2d at 376. 

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On March 9, 1982, Pratt filed a petition for a writ of habeas corpus in the Circuit 

Court of Marion County.3 Pratt alleged that he had been improperly sentenced and that he 

had been denied a meaningful appeal. As a result of the habeas proceeding, a pre-sentence 

investigation was completed, and Pratt was again resentenced for purposes of appeal. A 

November 30, 1983, order clarified Pratt’s sentence as follows: 

Whereupon, the Court, after a review of the pre-sentence investigation 

made by the Department of Corrections, and the statements of counsel, and 

testimony presented to the Court, does hereby order that the defendant, 

Raymond Pratt, be confined in the West Virginia Penitentiary at Moundsville, 

West Virginia, for life, with credit for time previously served on this matter. 

It is the intention of this Court that [Pratt] shall be eligible for parole, after 

serving a minimum of ten (10) years on this sentence. 

Thereafter, Pratt filed an appeal and an original habeas corpus petition in this Court, 

both of which challenged the validity of Pratt’s life sentence. Although Pratt’s appeal was 

refused, the habeas petition resulted in this Court’s opinion in Pratt v. Holland, 175 W.Va. 

756, 338 S.E.2d 236 (1985).4 In Pratt v. Holland, this Court rejected Pratt’s assertion that 

he should be released from confinement because of extraordinary dereliction by the State in 

bringing about the entry of numerous resentencing orders. However, citing State v. Houston, 

3 The habeas proceeding was styled State ex rel. Raymond Pratt v. Bordenkircher, 

No. 82-C-160 (Marion County 1982). 

4 Pratt’s appeal, filed on October 16, 1985, was from the November 1983 order of 

the Circuit Court of Marion County. The sole assignment of error was the refusal “to 

give reasons for imposing the life sentence.” Pratt v. Holland, 175 W.Va. at 759, 338 

S.E.2d at 238. Following the issuance of Pratt v. Holland on December 17, 1985, 

concerning the habeas petition, this Court refused the appeal on March 19, 1986. 

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we remanded the case to the Circuit Court of Marion County with directions to put the 

reasons for imposing the life sentence on the record. 

However, before the circuit court could convene a hearing to develop a sentencing 

record, Pratt was placed on parole. While on parole, Pratt was arrested in Pennsylvania for 

first degree murder and was convicted of that offense in January 1988 following a jury trial. 

However, the case was reversed and remanded on August 16, 1989, by the Superior Court 

of Pennsylvania. See Commonwealth v. Pratt, 394 Pa. Super. 615, 565 A.2d 821 (1989), 

aff’d, 524 Pa. 627, 574 A.2d 68 (1990) (unpublished opinions). On remand, Pratt pled guilty 

to murder of the third degree, an offense under Pennsylvania’s murder statute, 18 Pa.C.S.A. 

§ 2502 [1978].5 Pratt then served a penitentiary term in Pennsylvania. Upon release, his 

5 The Pennsylvania murder statute, 18 Pa.C.S.A. § 2502 [1978], provides in part: 

(a) Murder of the first degree. - A criminal homicide constitutes 

murder of the first degree when it is committed by an intentional killing. 

[“Intentional killing” is defined under the statute as “killing by means of 

poison, or by lying in wait, or by any other kind of willful, deliberate and 

premeditated killing.”] 

(b) Murder of the second degree. - A criminal homicide constitutes 

murder of the second degree when it is committed while defendant was 

engaged as a principal or an accomplice in the perpetration of a felony. 

[“Perpetration of a felony” is defined under the statute as “[t]he act of the 

defendant in engaging in or being an accomplice in the commission of, or 

an attempt to commit, or flight after committing, or attempting to commit 

robbery, rape, or deviate sexual intercourse by force or threat of force, 

arson, burglary or kidnapping.”] 

(c) Murder of the third degree. - All other kinds of murder shall be 

murder of the third degree. Murder of the third degree is a felony of the 

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parole was revoked by the West Virginia Parole Board. Pratt was returned to custody in 

West Virginia, and his armed robbery sentence of life, with mercy, was reimposed.6 

The West Virginia Parole Board informed Pratt that he would be eligible for further 

parole at a later date. Soon after, however, by letter dated October 4, 2007, Pratt was 

informed that he would be entirely ineligible for parole in the future. The Parole Board’s 

determination of ineligibility was based upon a September 2007 memorandum from counsel 

for the West Virginia Department of Corrections which concluded that a conviction of third 

degree murder in Pennsylvania is virtually the same as a second degree murder conviction 

in this State. Consequently, Pratt was said to be ineligible for further parole pursuant to 

W.Va. Code, 62-12-19(c) [2006]7

, which provides in relevant part: 

When a parolee has violated the conditions of his or her release on 

parole by confession to, or being convicted of, any of the crimes set forth in 

section eighteen of this article, he or she shall be returned to the custody of the 

Division of Corrections to serve the remainder of his or her maximum 

sentence, during which remaining part of his or her sentence he or she is 

ineligible for further parole. 

first degree. 

6 See generally Vol. 2, Neil P. Cohen, The Law of Probation and Parole § 19:9 (2nd 

ed. 1999) (“Probation or parole status may be revoked by the state granting it not only for 

additional criminal offenses committed in that state, but for additional criminal offenses 

committed by the offender in any other state or in violation of federal law, if the record 

clearly establishes the commission of the offense in the other jurisdiction.”). 

7 W.Va. Code, 62-12-19 [2006], was amended by the Legislature in 2013. The 

amendment is unrelated to this proceeding. 

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(emphasis added) The reference in the statute to “crimes set forth in section eighteen of this 

article” is to W.Va. Code, 62-12-18 [2006], which addresses certain parole violations and 

lists crimes such as murder and aggravated robbery “or offenses with the same essential 

elements if known by other terms in other jurisdictions.” (emphasis added) 

Although the record indicates that Pratt had a revocation hearing, he was not afforded 

an opportunity to appear before the Parole Board and participate in the analysis of the 

respective murder statutes resulting in the Board’s determination. 

III. The Current Habeas Corpus Proceeding 

On November 19, 2012, Pratt filed the current habeas petition in the Circuit Court of 

Marion County (the habeas court). See West Virginia Post-Conviction Habeas Corpus Act, 

W.Va. Code, 53-4A-1 [1967], et seq. The petition was amended on January 2, 2014.8 Pratt 

alleged that the lack of a sentencing record regarding his armed robbery conviction violates 

the requirements of State v. Houston as well as this Court’s directions in Pratt v. Holland to 

set forth reasons for imposing Pratt’s life sentence. Pratt also alleged that the West Virginia 

Parole Board violated his right to due process by refusing him an opportunity to be heard and 

8 The amended petition is styled State ex rel. Raymond Pratt v. Ballard, No. 12-C415 (Marion County 2012). 

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present evidence prior to the Board’s determination that he is ineligible for further parole 

consideration. Specifically, rather than asking the habeas court to rule that Pratt is currently 

eligible for parole, Pratt sought an opportunity to challenge the Department of Corrections’s 

memorandum relied upon by the Parole Board. 

The habeas court conducted an omnibus hearing on July 7, 2014. With regard to the 

Parole Board, the habeas court indicated that Pratt’s eligibility for further parole was subject 

to the comparison of the Pennsylvania third degree murder statute with the West Virginia 

statute on second degree murder. The habeas court stated that the issue was, therefore, a 

question of law and that the parties could present their arguments, in writing, directly to the 

court. On August 6, 2014, Pratt filed a brief with the habeas court in which he concluded: 

“After extensive research, Petitioner’s counsel cannot in good faith argue that there is a 

significant distinction between Pennsylvania’s definition of ‘third-degree murder’ and West 

Virginia’s definition of ‘second-degree murder.’” 

The habeas court provided the parties with a copy of Pratt’s 1983 pre-sentence 

investigation report. On January 29, 2015, the habeas court conducted a sentencing hearing 

pursuant to State v. Houston and Pratt v. Holland to develop the record with regard to Pratt’s 

life sentence for armed robbery. Concluding that the sentence was fair, the habeas court 

reimposed the life sentence, with mercy, which originally included parole eligibility. 

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Rejecting Pratt’s due process claim, the habeas court concluded that the Parole Board 

followed the law in declaring him no longer eligible for parole. During the hearing, the 

following exchange occurred: 

The Court: * * * Mr. Gregory [counsel for Pratt], when you looked 

at that issue, and I asked you to, your representation in your brief was that in 

all fairness there’s really no difference between the elements of second-degree 

murder in West Virginia and third-degree murder in Pennsylvania. Is that a 

fair statement, Mr. Gregory? 

Mr. Gregory: Yes, your Honor.
 

The Court: Would the State agree?
 

Mrs. Ribel: Yes, your Honor.
 

The Court: So, now we get to the point where it being a parole issue and
 

is very clear if you’re placed on parole and it’s like even with the sentence is 

life with mercy, the current parole statute states that if a parole violation 

involves the commission [of] one of the enumerated felonies in West Virginia 

Code 62-12-18, which includes second-degree murder - - now let me ask, is 

there any dispute about that, Mr. Gregory? 

Mr. Gregory: About the - ­

The Court: The fact that one of the enumerated felonies would cause 

someone to no longer be eligible for parole is second-degree murder? 

Mr. Gregory: No dispute, your Honor. * * * Was it one of these 

enumerated felonies? Yes, it was. I guess really the only argument I would 

have is that he was not allowed to participate. Would it have mattered? I 

don’t think so. Actually, no it wouldn’t have mattered, but that’s really, I 

guess, the due process my argument addresses. 

On February 13, 2015, the habeas court entered an order dismissing Pratt’s petition. 

The order contained findings of fact and conclusions of law. The order was reentered on 

October 29, 2015, and this appeal followed. 

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IV. Standards of Review 

Pursuant to Rule 9.(c) of the Rules Governing Post-Conviction Habeas Corpus 

Proceedings in West Virginia, a habeas court’s comprehensive order must include findings 

of fact and conclusions of law. This Court’s standard of review of such an order is set forth 

in syllabus point 1 of Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006): 

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 standard. 

Accord Ballard v. Hunt, 235 W.Va. 100, 103, 772 S.E.2d 199, 202 (2015). See Trisha Zeller, 

Handbook on West Virginia Criminal Procedure, Ch. XXII, § B at 22-95 (Matthew Bender 

2016). See also syl. pt. 3, Rowe v. Whyte, 167 W.Va. 668, 280 S.E.2d 301 (1981) (abuse of 

discretion standard applied to parole decisions). 

V. Discussion 

Pratt raises two assignments of error. First, he contends that the habeas court included 

an impermissible factor as a reason for his life sentence. Specifically, Pratt asserts that, 

inasmuch as the Pennsylvania murder conviction occurred after the Marion County armed 

robbery conviction, the murder conviction should not have been included in the basis for 

Pratt’s life sentence. Pratt’s second assignment of error concerns his contention that the 

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denial of a hearing before the Parole Board in which to participate in the comparison of the 

two murder statutes violated his right to due process of law.9 

We find Pratt’s first assignment of error to be without merit. Although Pratt’s murder 

conviction was discussed by the habeas court during the July 7, 2014, omnibus hearing and 

the January 29, 2015, sentencing hearing, the murder conviction was not included as a 

reason for Pratt’s life sentence for armed robbery. While the murder conviction was properly 

before the Parole Board and the habeas court on the issue of Pratt’s prospective eligibility 

for parole, the murder conviction was not a factor, and was not considered by the habeas 

court, in the context of State v. Houston and Pratt v. Holland. The sentence imposed by the 

habeas court was the same sentence Pratt received prior to the Pennsylvania murder 

conviction, i.e., life with mercy. In the February 13, 2015, order, the habeas court set forth 

the following basis for the life sentence: 

The Court convened the hearing as scheduled on January 29, 2015. At 

that time, the Court elicited recommendations from both the Petitioner’s 

counsel and from the State of West Virginia as to the propriety of a life 

sentence. The Court also invited them to offer any corrections, objections, 

additions, or arguments related to the 1983 Pre-Sentence Investigation Report. 

Most importantly, the Court addressed the Petitioner personally and permitted 

him an opportunity to allocute. Ultimately, however, the Court expressed on 

9 U.S. Const. amend. V and amend. XIV provide that no person shall be deprived 

of life, liberty or property without due process of law. Similarly, W.Va. Const. Art. III, § 

10, provides that no person shall be deprived of life, liberty or property without due 

process of law. 

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the record its intention to affirm the underlying life sentence and its reasons for 

doing so, including: 

a. the severity and violent nature of the offense; 

b. the Petitioner’s criminal history, including at least three other armed 

robberies; 

c. the absence of any serious mitigating factors related to the 

Petitioner’s upbringing or the armed robbery itself; 

d. the community sentiment at the time of the original sentencing, 

including the victim’s belief that he should be incarcerated “for a considerable 

amount of time” and the arresting officer’s belief that he was “a habitual 

criminal beyond rehabilitation” who “should spend the rest of his life in the 

penitentiary;” and 

e. that although the Petitioner’s criminal career began in his youth, it 

continued well into his forties. 

The Court also considered that the sentence imposed was relatively 

favorable given the State’s original recommendation of a fifty year sentence ­

a sentence that would have required him to remain incarcerated for at least 

fifteen years, rather than ten. In other words, it was actually intended to reduce 

the necessary term of imprisonment and allow the Petitioner an earlier 

opportunity to re-enter the community subject to the deterring influence of the 

life sentence. By attaining parole after ten years, the Petitioner reaped the 

benefits of this sentence, even if he ultimately squandered the opportunity by 

re-offending shortly after his discharge. 

Syllabus point 1 of State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 (1997) holds: 

“The Supreme Court of Appeals reviews sentencing orders, including orders of restitution 

made in connection with a defendant’s sentencing, under a deferential abuse of discretion 

standard, unless the order violates statutory or constitutional commands.” Accord syl. pt. 1, 

State v. Deel, 237 W.Va. 600, 788 S.E.2d 741 (2016). More precisely, sentences in criminal 

cases, if within statutory limits and if not based on some impermissible factor, are not subject 

to appellate review. Syl. pt. 10, State v. Payne, 225 W.Va. 602, 694 S.E.2d 935 (2010); syl. 

pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982). 

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Here, the habeas court complied with the directives of State v. Houston and Pratt v. 

Holland by placing reasons for Pratt’s life sentence on the record. The reasons expressed are 

thorough, and the sentence, as reimposed, is within the sound discretion of the habeas court. 

We find no merit in this assignment of error. 

Pratt’s second assignment of error which concerns the West Virginia Parole Board is 

likewise without merit. In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court of 

the United States held that, although parole revocation does not call for the full panoply of 

rights due a defendant in a criminal proceeding, the parolee is, nevertheless, entitled to 

certain due process protections pursuant to the Fourteenth Amendment. Those protections 

include a preliminary determination, by a hearing officer, of probable cause that a violation 

occurred and a subsequent revocation hearing before the parole board. The due process 

protections afforded the parolee at the revocation hearing include the opportunity to be heard 

in person and to present witnesses and documentary evidence. State ex rel. J. R. v. 

MacQueen, 163 W.Va. 620, 623, 259 S.E.2d 420, 422 (1979). After Morrissey, this Court, 

in syllabus point 1 of Dobbs v. Wallace, 157 W.Va. 405, 201 S.E.2d 914 (1974), recognized 

that a parole revocation hearing, “being a critical proceeding at which the accused parolee’s 

liberty is in jeopardy, must be conducted within the protections afforded by the state and 

federal constitutions.” 

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Here, as the habeas court noted, Pratt had a revocation hearing before the Parole 

Board during which his parole was formally revoked. Pratt does not contest the revocation. 

Although he was told at the hearing that he would again be eligible for parole, he was later 

notified pursuant to the October 4, 2007, letter that he would be ineligible for further parole 

consideration. Although Pratt was not afforded an opportunity to contest the Department of 

Corrections’s memorandum before the Board, his conviction of third degree murder in 

Pennsylvania raised a question of law, rather than an evidentiary matter, with regard to parole 

eligibility. 

The Parole Board determined under W.Va. Code, 62-2-18 [2006], that Pratt’s third 

degree murder conviction had the “same essential elements” as second degree murder in this 

State and, thus, concluded under W.Va. Code, 62-12-19(c) [2006[, that Pratt is now 

“ineligible for further parole.” This Court observed in Jett v. Leverette, 162 W.Va. 140, 146, 

247 S.E.2d 469, 472 (1978): “In the case of a parole revocation there exists the possibility 

of further eligibility for parole unless the parolee has committed certain crimes set out in 

W.Va. Code, 62-12-18, while on parole, in which event ‘he shall be ineligible for further 

parole.’ W.Va. Code, 62-12-19.” 

During the omnibus hearing, the habeas court indicated that the issue of Pratt’s 

eligibility for further parole was a question of law and that Pratt would be permitted to file 

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a brief comparing the Pennsylvania murder statute with the West Virginia statute. In Pratt’s 

brief, his counsel concluded that, after extensive research, he could not in good faith argue 

that there is a significant distinction between Pennsylvania’s definition of third degree 

murder and West Virginia’s definition of second degree murder. At the subsequent January 

29, 2015, sentencing hearing before the habeas court, Pratt’s counsel maintained that Pratt 

should have been allowed to appear and participate before the Parole Board on the issue 

regarding the murder statutes. However, Pratt’s counsel acknowledged that Pratt’s 

appearance before the Board would not have mattered. During that hearing, the habeas court 

concluded that the question before the Parole Board was a matter of law and that the Parole 

Board properly followed W.Va. Code, 62-12-19(c) [2006], in determining that Pratt is no 

longer eligible for parole. 

The habeas court rejected Pratt’s due process claim. As the habeas court noted in the 

October 29, 2015, order: “[Pratt] conceded at the January 29, 2015 hearing that an 

opportunity to be heard in the disputed parole board determination would prove an empty 

gesture and [would] ‘make no difference in the end.’” 

Pratt was afforded ample opportunity before the habeas court to contest the issue 

regarding the respective murder statutes. The similarity of Pennsylvania’s third degree 

murder statute and this State’s second degree murder statute is not in dispute. Pursuant to 

the clear language of W.Va. Code, 62-12-19(c) [2006], Pratt is “ineligible for further 

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parole.”10 We find nothing in this assignment of error warranting a reversal of the habeas 

court. 

10 In West Virginia, the statutory offenses of first and second degree murder are set 

forth in W.Va. Code, 61-2-1 [1991], which provides in part: 

Murder by poison, lying in wait, imprisonment, starving, or by any 

willful, deliberate and premeditated killing, or in the commission of, or 

attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, 

breaking and entering, escape from lawful custody, or a felony offense of 

manufacturing or delivering a controlled substance as defined in article 

four, chapter sixty-a of this code, is murder of the first degree. All other 

murder is murder of the second degree. 

That provision is comparable to the Pennsylvania murder statute, 18 Pa.C.S.A. § 

2502 [1978]. See n. 5, supra. We, therefore, agree with the conclusion that 

Pennsylvania’s third degree murder provision is essentially the same as this State’s 

second degree murder provision for purposes of parole eligibility under W.Va. Code, 62­

12-19(c) [2006], and W.Va. Code, 62-12-18 [2006]. The habeas court’s October 29, 

2015, order includes the following well-reasoned analysis: 

Pennsylvania’s second-degree murder statute is a codification of the 

so called “felony murder” rule, See 18 Pa. Stat. § 2502(b) (“A criminal 

homicide constitutes murder of the second degree when it is committed 

while defendant was engaged as a principal or an accomplice in the 

perpetration of a felony.”). In West Virginia, the felony murder rule is 

encoded as a form of first-degree murder. See W.Va. Code § 61-2-1 

(defining first degree murder as, inter alia, any murder committed in the 

course or attempted course of committing certain other enumerated 

felonies). Third-degree murder in Pennsylvania and second-degree murder 

in West Virginia are both “catch-all” offenses for any murder that fails to 

qualify as a murder of a more aggravated degree. 

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VI. Conclusion 

For the reasons stated, this Court affirms the October 29, 2015, order of the Circuit 

Court of Marion County denying Pratt relief in habeas corpus. 

Affirmed. 

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