1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia,

Plaintiff Below, Respondent

vs.) No. 21-0519 (Kanawha County No. 19-F-608)

Andrew Wayne Miller,

Defendant Below, Petitioner

MEMORANDUM DECISION

Petitioner Andrew Wayne Miller appeals the amended sentencing order entered by the 

Circuit Court of Kanawha County on June 2, 2021, that corrected the credit granted to him for time 

served, revoked his post-conviction bond, and sentenced petitioner to a determinate term of three 

years. The State of West Virginia responds in support of circuit court’s order.1 The State also 

asserts that this appeal is moot. Upon our review, we determine that oral argument is unnecessary 

and that a memorandum decision is appropriate. See W. Va. R. App. Proc. 21. This Court 

concludes that this appeal is dismissed as moot pursuant to Rule 27(b) of the Rules of Appellate 

Procedure.

On July 10, 2020, petitioner pled guilty to being a prohibited person in possession of a 

firearm. He was found guilty and granted post-conviction bond with a condition of home 

confinement until the sentencing hearing scheduled for September 9, 2020. On September 1, 2020, 

petitioner was arrested on alleged violations of the home confinement bond conditions. A notice 

of violation, with a notice of final hearing scheduled for September 9, 2020, was filed the following 

day listing violations related to a positive drug test and a failure to pay home confinement fees. On 

September 9, 2020, petitioner appeared, admitted the home confinement violations and waived 

proceeding with the hearing. He confirmed, and the circuit court found, that this was a knowing, 

free and voluntary waiver of hearing and admission of violations, made after consultation with 

counsel. Petitioner’s bond was revoked and the circuit court proceeded immediately to the 

sentencing hearing.

Considering the home confinement violations, petitioner’s history, underlying offense, that 

the underlying offense was committed while on parole, and that there was some involvement of 

narcotics, the circuit court sentenced petitioner to a determinate term of three years with credit for 

time served. After consideration of petitioner’s Rule 35 motion for reconsideration seeking to 

1 Petitioner appears by Daniel L. Holstein; respondent appears by Patrick Morrisey and 

Katherine M. Smith.

FILED

January 18, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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reduce his sentence, to have his sentence run concurrently with any sentence related to parole 

violations, and that credit for time served be corrected, the circuit court entered an amended 

sentencing order on June 2, 2021, correcting petitioner’s credit for time served but otherwise 

denying the motion. Petitioner appeals this order, seeking remand to grant a preliminary hearing 

on the bond revocation, a new final hearing on the post-conviction bond violations if necessary, 

and resentencing on the underlying violation. We take notice, based on respondent’s supplemental 

appendix and representation, that petitioner discharged his sentence in this case on July 27, 2021.

2

 

In this appeal petitioner challenges only the procedure leading to the revocation of his postconviction bond and his sentence on the underlying offense, not the underlying conviction. Given 

that petitioner is not challenging his conviction and has discharged his sentence in this case, the 

appeal of the post-conviction bond revocation and sentence is moot. See Syl., State v. J.C., 241 W. 

Va. 712, 828 S.E.2d 100 (2019) (“‘[m]oot questions or abstract propositions, the decision of which 

would avail nothing in the determination of controverted rights of persons or of property, are not 

properly cognizable by a court.’ Syl. Pt. 1, State ex el. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 

(1908)”); State v. Merritt, 221 W. Va. 141, 143, 650 S.E.2d 240, 242 (2007) (appeal of an order 

denying a stay of sentence moot upon completion of the sentence). Based on the limited nature of 

this appeal, we find no basis for making an exception to the mootness doctrine and no request to 

do so has been made by petitioner. See Syl. Pt. 1, Israel v. W. Va. Secondary Sch. Activities 

Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (1989) (discussing facts to be considered in deciding 

whether to address technically moot issues).

For the foregoing reasons, we dismiss this appeal as moot. 

Dismissed.

ISSUED: January 18, 2023

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker 

Justice Tim Armstead

Justice William R. Wooton

Justice C. Haley Bunn

DISQUALIFIED:

Justice John A. Hutchison

2 At the time respondent submitted its brief, petitioner remained incarcerated on a sentence 

in another case.