STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Kevin Cart, FILED 

March 29, 2013 Petitioner Below, Petitioner RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA vs.) No. 12-0342 (Putnam County 11-C-267) 

Evelyn Seifert, Warden, Northern Correctional Facility, 

Respondent Below, Respondent 

MEMORANDUM DECISION 

Petitioner Kevin Cart, pro se, appeals the Circuit Court of Putnam County’s order, entered 

November 8, 2011, denying his petition for a writ of habeas corpus. The respondent warden, by 

Scott E. Johnson and John Boothroyd, his attorneys, filed a summary response to which 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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

A jury convicted petitioner of nighttime burglary and sexual assault in the first degree. On 

December 19, 1995, the circuit court sentenced petitioner to one to fifteen years on the burglary 

charge and fifteen to thirty-five years on the sexual assault charge, “said sentences to run 

consecutive.” The commitment order, which was entered January 24, 1996, listed the sentences in 

reverse order, putting the sentence for the sexual assault first. The commitment order also provided 

that the sentences were to be served consecutively. 

The Division of Corrections (“DOC”) apparently had been following the commitment 

order listing the sentence for the sexual assault ahead of petitioner’s sentence for burglary. The 

Parole Board subsequently asked the DOC to “flip-flop the terms [sentences] so that they would be 

able to establish a correct parole eligibility date.” The DOC’s letter to petitioner also explained that 

under the State Code, “consecutive terms are equal to an aggregate term” and that therefore, “we 

set your records up to reflect you were serving an aggregate term of 16-50 years with an Effective 

Sentence Date of October 15, 1994.” 

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On or about August 19, 2011, petitioner filed a petition for a writ of habeas corpus alleging 

that his sentence for sexual assault comes first and he should be discharging that sentence in 

February of 2012. Petitioner explained that the discharge of his sentence for sexual assault would 

allow him a better chance at parole and would also change his classification within the prison 

system that may allow opportunities such as transfer to a less secure facility. 

Applying Syllabus Points Six and Seven of State v. Eilola, 226 W.Va. 698, 704 S.E.2d 

698 (2010), the circuit court denied petitioner’s petition. The circuit court explained as follows: 

In other words, [petitioner] is effectively serving an 

interdeterminate sentence of not less than sixteen years nor more 

than fifty years. He is not serving two separate sentences for 

purposes of calculation of good time, parole eligibility or sentence 

discharge. In her letter of June 17, 2011 to [petitioner], [DOC] 

Records Manager, Diann E. Skiles, correctly informed [petitioner] 

that his two sentences were aggregated. The [DOC] correctly 

applied the principles articulated in Eilola. 

We review the circuit court’s denial of a habeas petition as follows: 

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). 

On appeal, petitioner argues that Eilola should not be applied to his case because, while his 

commitment order was entered in 1996, Eilola was not decided until 2010. Petitioner asserts that 

the circuit court’s ruling conflicts with oral statements the judge made at his sentencing. Petitioner 

asserts that contrary to the circuit court’s finding, the sentencing order also contains language 

supporting his contention that he served the first degree sexual assault sentence first. The 

respondent warden argues that where there is a conflict, a written order controls over a court’s oral 

statement. The respondent warden argues that “[where] the record is conflicting, the sentencing 

order, not the commitment paper, controls,” quoting Fuller v. State, 914 So.2d 1230, 1232 (Miss. 

Ct. App. 2005). After careful consideration of the parties’ arguments, this Court concludes that the 

circuit court did not abuse its discretion in denying the petition. 

For the foregoing reasons, we find no error in the decision of the Circuit Court of Putnam 

County and affirm its November 8, 2011, order denying petitioner’s petition for a writ of habeas 

corpus. 

Affirmed. 

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ISSUED: March 29, 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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