STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS
 

State of West Virginia, 

Respondent Below, Respondent FILED

October 12, 2018

vs.) No. 17-0632 (Wood County 15-P-136) EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA Phillip Andrew Baughman Jr., 

Petitioner Below, Petitioner 

MEMORANDUM DECISION 

Petitioner Phillip Andrew Baughman Jr., by counsel Travis Sayre, appeals the Circuit 

Court of Wood County’s June 28, 2017, order denying his petition for writ of error coram nobis. 

The State of West Virginia, by counsel Robert L. Hogan, filed a response in support of the circuit 

court’s order. On appeal, petitioner argues that the circuit court erred in applying an inapplicable 

version of the supervised release statute and in concluding that he received effective assistance of 

counsel. 

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 affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

On May 12, 2006, petitioner was indicted for three counts of third-degree sexual assault. 

Following several rejected plea agreements, the circuit court approved a plea agreement 

providing that petitioner would plead guilty to one count of third-degree sexual assault and enter 

an Alford plea to one count of third-degree sexual assault.1

 The State agreed to dismiss the third 

charge. The parties further agreed that petitioner would be committed to the Anthony 

Correctional Center (“Anthony Center”) for completion of its Youthful Offender Program. On 

June 7, 2007, consistent with the plea agreement, the circuit court suspended imposition of 

petitioner’s sentence and committed him to the Anthony Center. 

Petitioner successfully completed the Anthony Center’s requirements on February 12, 

1

See North Carolina v. Alford, 400 U.S. 25 (1970) (permitting a defendant to enter a 

guilty plea without admitting guilt). 

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2009, and appeared before the circuit court on March 4, 2009, for sentencing.2 The circuit court 

sentenced petitioner to consecutive one- to five-year terms of incarceration for each third-degree 

sexual assault conviction. The court then suspended these sentences, placed petitioner on 

probation for two years, and ordered that a fifteen-year period of supervised release be imposed 

following the expiration of petitioner’s probation. Petitioner did not appeal the sentencing order. 

Petitioner’s probationary period expired on September 14, 2011, and his fifteen years of 

supervised release began. On February 17, 2012, the State filed the first petition to revoke 

petitioner’s supervised release, alleging that he failed to notify his probation officer of multiple 

sexual relationships, including one with a woman who had children under the age of eighteen. 

Petitioner admitted to these allegations, and, on April 3, 2012, the circuit court sentenced him to 

not less than twelve months of incarceration. The circuit court also ordered that petitioner’s 

supervised release resume upon his release from incarceration. 

The State filed a second petition to revoke petitioner’s supervised release on March 31, 

2014. The petition alleged numerous violations of the terms and conditions of petitioner’s 

supervised release, including, among others, failing to provide his probation officer with a 

current list of computer equipment used, engaging in a sexual relationship with a woman who 

has children under the age of eighteen, engaging in such relationships without notifying his 

probation officer, and lying to his probation officer. At the May 27, 2014, final hearing on this 

second revocation petition, petitioner announced to the circuit court that he and the State had 

reached an agreement whereby he would admit to the allegations contained within the petition, 

agree to be sentenced to five years of incarceration, and agree to a fifteen-year extension of his 

supervised release. On June 23, 2014, the circuit court sentenced petitioner in accordance with 

the parties’ agreement, including extending petitioner’s supervised release to a total thirty-year 

term. 

On November 4, 2015, petitioner, pro se, filed a petition for writ of habeas corpus. Later, 

by counsel, petitioner filed an amended petition. During the pendency of his habeas petition, 

petitioner was released from incarceration; accordingly, his habeas petition was converted into a 

petition for writ of error coram nobis.3 In his petition, petitioner argued that his supervised 

2

West Virginia Code § 25-4-6 provides that 

[a] young adult offender shall be returned to the jurisdiction of the court which 

originally committed the offender when, in the opinion of the warden, the young 

adult offender has satisfactorily completed the center training program. The 

offender is then eligible for probation for the offense the offender was convicted 

of or plead guilty to and the judge of the court shall immediately place the 

offender on probation. 

3

See Cline v. Mirandy, 234 W.Va. 427, 765 S.E.2d 583 (2014) (“[A]n inmate who has 

been released from incarceration and placed on parole is no longer ‘incarcerated under sentence 

of imprisonment’ for purposes of seeking habeas corpus relief[.]”). See also State v. Hutton, 235 

(continued . . . ) 

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release term should be governed by the 2003 version of the supervised release statute, as that was 

the version in effect at the time he was originally sentenced. Petitioner also argued that he 

received ineffective assistance of counsel at the time he entered his plea because he was unaware 

that he could be subjected to supervised release. 

After holding multiple hearings on these issues, the circuit court denied petitioner coram 

nobis relief. The court found that the 2003 version of the supervised release statute was in effect 

at the time petitioner committed the offenses of which he was convicted, and the supervised 

release term imposed upon petitioner complied with that version. By separate order, the circuit 

court further found that petitioner failed to demonstrate ignorance of the applicability of 

supervised release, particularly because he failed to appeal his initial sentence, did not raise the 

issue at any time during his first supervised release revocation proceeding, and not only failed to 

raise the issue during his second revocation proceeding, but also agreed to an extension of it. 

These findings were memorialized in the circuit court’s June 28, 2017, order, and it is from this 

order that petitioner appeals. 

In considering an order denying coram nobis relief, “[w]e review the final order and the 

ultimate disposition under an abuse of discretion standard, and we review the circuit court’s 

underlying factual findings under a clearly erroneous standard. Questions of law are subject to a 

de novo review.” State v. Hutton, 239 W.Va. 853, 857, 806 S.E.2d 777, 781 (2017) (citations 

omitted). Additionally, 

[a] claim of legal error may be brought in a petition for a writ of error 

coram nobis only in extraordinary circumstances and if the petitioner shows that 

(1) a more usual remedy is not available; (2) valid reasons exist for not attacking 

the conviction earlier; (3) there exists a substantial adverse consequence from the 

conviction; and (4) the error presents a denial of a fundamental constitutional 

right. 

Id. at 855, 806 S.E.2d at 780, Syl. Pt. 2 (citation omitted). “[F]ailure to establish any of the above 

elements will defeat a petition for coram nobis relief.” Id. at 858, 806 S.E.2d at 782 (citation 

omitted). 

In petitioner’s first assignment of error, he states that he “would like the Court to make a 

ruling regarding the amount of time that he may be incarcerated for infractions of his supervised 

release.” Petitioner submits that he has served five years of incarceration for violations of his 

supervised release, but he “is [of] the opinion . . . that he can only be incarcerated for a total of 

ten years due to violations of his supervised release.” Petitioner argues that his “punishments 

should fall under the 2003 version” of the supervised release statute, West Virginia Code § 62-

12-26, and that that version should “direct how his supervised release should be handled in the 

future.” Specifically, petitioner directs this Court to the statute’s provision that “no person may 

serve a period of incarceration for a violation of supervised release which exceeds the maximum 

W.Va. 724, 776 S.E.2d 621 (2015), for an overview of the writ of error coram nobis in West 

Virginia. 

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statutory period of confinement for the offense of conviction underlying the period of supervised 

release.” Id. at § 62-12-26(e)(3) (2003). 

We begin by noting that the circuit court found that the sentences imposed following 

petitioner’s supervised release revocations “complied with the statutory provisions in effect at 

the time his offenses were committed[,]” that is, the 2003 version of the supervised release 

statute. Because the circuit court clearly applied the 2003 version, petitioner’s argument that his 

“punishment[] should fall under the 2003 version” is without merit. To the extent petitioner now 

seeks a ruling on the legality of a future prison sentence that exceeds ten years for violations of 

his supervised release, such a sentence has not been imposed. It is well-established that “[t]his 

Court will not decide abstract issues where there is no controversy.” State v. Whittaker, 221 

W.Va. 117, 650 S.E.2d 216 (2007). “Courts are not constituted for the purpose of making 

advisory decrees or resolving academic disputes.” Id. at 122, 650 S.E.2d at 221, Syl. Pt. 11 

(internal quotations and citations omitted). Accordingly, we decline to address this issue. 

Petitioner’s last assignment of error concerns his counsel’s representation at the time he 

entered his pleas. Petitioner argues that he received ineffective assistance because he was not 

advised that a term of supervised release could be imposed. Petitioner contends that he would 

have proceeded to trial had he known he would be subjected to supervised release. Petitioner also 

argues that there is no “written record” establishing that he was informed that he would be 

subject to supervised release. 

In the West Virginia courts, claims of ineffective assistance of counsel are 

to be governed by the two-pronged test established in Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) Counsel’s performance 

was deficient under an objective standard of reasonableness; and (2) there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceedings would have been different. 

Syl. Pt. 5, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). A claim may be disposed of for 

failure to meet either prong of the test. Syl. Pt. 5, in part, State ex rel. Daniel v. Legursky, 195 

W.Va. 314, 465 S.E.2d 416 (1995). “Failure to meet the burden of proof imposed by either part 

of the Strickland/Miller test is fatal to a habeas petitioner’s claim.” State ex rel. Vernatter v. 

Warden, W.Va. Penitentiary, 207 W.Va. 11, 17, 528 S.E.2d 207, 213 (1999) (citation omitted). 

We find no abuse of discretion in the circuit court’s conclusion that petitioner was aware 

of the possibility that supervised release could be imposed. Petitioner’s trial counsel testified 

during the omnibus evidentiary hearing that he discussed with petitioner the possibility of a term 

of supervised release. Moreover, petitioner never objected to the imposition of supervised release 

following his completion of the Anthony Center’s Youthful Offender Program, at the time of his 

first revocation proceeding, or at the time of his second revocation proceeding. Indeed, at the 

second revocation proceeding, petitioner agreed to a fifteen-year extension of supervised release 

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as part of a plea agreement with the State.4 Accordingly, we find no error in the circuit court’s 

denial of petitioner’s ineffective assistance claim. 

For the foregoing reasons, we affirm the circuit court’s June 28, 2017, order denying 

petitioner’s petition for writ of error coram nobis. 

Affirmed. 

ISSUED: October 12, 2018 

CONCURRED IN BY: 

Chief Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

Justice Paul T. Farrell sitting by temporary assignment 

Justice Tim Armstead 

Justice Evan H. Jenkins 

Justice Allen H. Loughry II, suspended and therefore not participating 

4

These same facts also support the conclusion that petitioner’s petition for coram nobis 

relief was properly denied due to his failure to attack his conviction earlier or provide a reason 

for such failure. Failure to establish a valid reason for failing to challenge the conviction earlier 

will defeat a petition for writ of error coram nobis. State v. Hutton, 239 W.Va. 724, 858, 806 

S.E.2d 621, 782. Given the two prior revocation proceedings, petitioner was clearly aware of his 

supervised release, but he provides no justification for failing to challenge it at either juncture. 

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