1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia

, P laintiff Below, Respondent

vs. ) No. 2 1

- 05 1 9 ( 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 mo ot. Upon our review, we determine that oral argument is unnecessary

and that a memorandum deci sion 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 S eptember 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 violat ions 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 Petitioner’s bond was revoked and the circuit court proceeded immediately to the

sente ncing hearing.

C onsider ing 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 ; r espondent appears by Patrick Morrisey and

Katherine M. Smith

. 

### FILED January 18, 2023

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 reduce his sentence, to have his sentence run concurrently with any sentence related to parole violations, and t hat 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 prelim inary hearing

on the bond revocation , a new final hearing on the post

- conviction bond violation s if necessary, and resentencing on the underlying violation. We take notice, based on respondent’s supplemental appendix and representation

, that p etitioner 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 post

conviction 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 bo nd 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 except ion to the mootness doctrine and no request to do so has been made by petitioner

. See Syl. Pt. 1, Isr ae l 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 tec hnically 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.