1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Robert D. Yost, Petitioner, Petitioner Below

vs.) No. 12-0030 (Wayne County 11-C-190)

Marvin Plumley, Warden, Huttonsville Correctional Center, Respondent, Respondent Below

MEMORANDUM DECISION

Petitioner Robert D. Yost, pro se , appeals the December 14, 2011 order of the Circuit Court of Wayne County denying his petition for a writ of habeas corpus in which the court ruled that his claim, that he should have been given presentence jail credit for time served on charges in another county, did not rise to the level of constitutional significance. The respondent warden 1 , by Laura Young, his attorney, 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 Revised Rules of Appellate

Procedure.

Petitioner was charged on June 24, 2003, in Cabell County, West Virginia, for an offense arising in Cabell County. 2 On October16, 2003, while petitioner was still being held on the Cabell County charge, an arrest warrant was executed based on charges arising in Wayne County, West Virginia. 3 The Prosecuting Attorney of Wayne County previously had a hold on petitioner, since
June 26, 2003.

1 Pursuant to Rule 41(c) of the West Virginia Revised of Appellate Procedure, the name of Marvin Plumley is substituted for that of Adrian Hoke as Mr. Plumley is now Warden of Huttonsville

Correctional Center.

2 According to petitioner, the charge in Cabell County was for transferring/receiving stolen

property.

3 According to petitioner, the Cabell County charge and the Wayne County charges arose out of

the same incident. 

### FILED

January 25, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

Petitioner was transferred to Wayne County once he posted bond on the Cabell County charge on November 6, 2003. Petitioner subsequently posted bond on the Wayne County charges on November 25, 2003. Petitioner’s Wayne County bon d was revoked on January 12, 2004, and he was re-incarcerated. According to petitioner, the C abell County charge was dismissed shortly after his bond in Wayne County was revoked.

Petitioner pled guilty to two counts of daytime bu rglary, and the State agreed to dismiss two counts of grand larceny. The Circuit Court of W ayne County sentenced petitioner to one to ten years on each count of daytime burglary, to be serv ed consecutively. Petitioner received eighty-eight days of credit for time served in Wayn e County for the periods from November 6, 2003 to November 25, 2003, and from January 12, 200 4 to March 19, 2004, when he was

sentenced.

On July 9, 2010, petitioner filed a motion for cor rection of sentence alleging that he was entitled to 137 days of credit for time served whil e being held in Cabell County on a detainer from Wayne County. The circuit court denied the motion n oting that it “is using the November 7, 2003, date of arraignment[ 4 ] in Wayne County as the date when petitioner was i ncarcerated on Wayne County charges alone.” The circuit court found that the original calculation of eighty-eight days of credit for time served in Wayne County was correct. 5

On September 14, 2011, petitioner filed a petition for a writ of habeas corpus alleging that he should have received a total of 246 days of cred it for time served (eighty-eight days plus 158 additional days of credit). 6 The circuit court determined that “[petitioner’s] Petition should be dismissed without prejudice pursuant to [Rule] 4(c) [of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings] . . . .” The circuit court ruled in pertinent part as

follows:

* * *

3. That the Petitioner contends that he should have been given presentence jail credit for time served on charges in another county.

4 The record reflects that petitioner also received c redit for time served on November 6, 2003.

5 In its order denying the motion for correction of s entence, the circuit court noted that petitioner had previously been on parole but that he was re-in carcerated on February 15, 2009, because of a parole violation.

6 On appeal, petitioner states that the number of day s recited in his habeas petition was incorrect. Petitioner indicates that the correct number of day s is 221 (eighty-eight days plus 133 additional days of credit).3 4. That this is not a constitutional issue and for the reasons stated above this matter is not cognizable for a Wr it of Habeas Corpus.

It is, therefore, ADJUDGED and ORDERED that the Petitioner’s Petition [for] Writ of Habeas Corpus is DENIED

.

Petitioner now appeals the denial of his petition. On March 12, 2012, petitioner filed a motion for sanctions in this Court alleging that counsel for t he respondent warden made a misrepresentation in the summary response. Counsel filed a response t o the motion to which petitioner filed a reply. Petitioner’s motion for sanctions remains pending.

STANDARD OF REVIEW

The standard of review for the circuit court’s deni al of petitioner’s habeas petition is set forth in Syllabus Point One, Mathena v. Haines , 219 W.Va. 417, 633 S.E.2d 771 (2006):

In reviewing challenges to the findings and conclus ions of the circuit court in a habeas corpus action, we apply a three-prong

standard of review. We review the final order and t he 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.

“A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be rev iewed.” Syl. Pt. 4, State ex rel. McMannis v.
Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983).

DISCUSSION

Petitioner argues it is well-settled that the deni al of presentence jail credit rises to the level of constitutional significance. Petitioner asserts that he was held in jail in Cabell County for 133 days under two distinct legal processes, the Cabell County warrant and the hold placed on him by the Prosecuting Attorney of Wayne County. Petitione r asserts that if he had been convicted of the Cabell County charge, the sentencing court would ha ve discretion to order that he serve the

sentences concurrent with or consecutive to each ot her. However, because the Cabell County charge was dismissed and petitioner was held in Cab ell County under legal process from Wayne County, petitioner argues that the Circuit Court of Wayne County lacked discretion to deny him credit for time served for the 133 days he spent in jail in Cabell County.

The respondent warden asserts that petitioner mis reads the circuit court’s order denying his habeas petition. According to the respondent warden , the circuit court stated that petitioner did not assert a constitutional claim regarding credit for time served when he was not entitled to credit on his Wayne County sentence for time spent in jail on a separate Cabell County charge. The4

respondent warden cites Echard v. Holland , 177 W.Va. 138, 351 S.E.2d 51 (1986), 7 and asserts that petitioner finds himself in an analogous situa tion. The respondent warden argues that petitioner is not entitled to credit on his Wayne C ounty sentence for the days he was held in jail in Cabell County.

In Echard , the appellant was arrested on a Ritchie County ch arge when he was already awaiting transfer to the state penitentiary on a Wo od County conviction. On the issue of whether the appellant was entitled to presentence credit on the Ritchie County sentence, this Court disagreed with both the circuit court and the recor ds clerk at the penitentiary, and determined that the appellant was not entitled to credit for any of the time because “[he] was already subject to restraint [as a result of the Wood County sentence] , and no additional restraint was imposed because of the Ritchie County sentence.” 177 W.Va. at 144, 351 S.E.2d at 57. Similarly, in the case at bar, petitioner was already subject to rest raint because of the Cabell County charge, and no additional restraint was imposed when the Prosecuti ng Attorney of Wayne County placed a hold on him. Therefore, this Court finds that the circui t court did not err in ruling that petitioner’s cla im for additional presentence credit did not rise to t he level of constitutional significance. 8 This Court

concludes that the circuit court did not abuse its discretion in denying petitioner’s habeas petition. 9

For the foregoing reasons, we find no error in the decision of the Circuit Court of Wayne County and affirm its December 5, 2011 order denyin g petitioner’s petition for a writ of habeas

corpus.

Affirmed.

7 Echard v. Holland , 177 W.Va. 138, 144, 351 S.E.2d 51, 57 (1986), is contrary to petitioner’s argument that constitutional safeguards are implica ted in every case where there is an issue of presentence credit for time served. See 177 W.Va. at 144, 351 S.E.2d at 57 (“[T]he conside rations which govern our decisions in this area, equal prot ection and double jeopardy, have no relevance to our inquiry concerning presentence credit on the Ritchie County sentence.”).

8 In his motion for sanctions, petitioner alleges tha t counsel for the respondent warden denied the fact a hold was placed on petitioner while being he ld in jail in Cabell County. However, as counsel explained in her response to the motion, she was no t denying that the Prosecuting Attorney of Wayne County placed a hold on petitioner; rather, c ounsel’s position was that the hold was of no legal significance. In light of Echard v. Holland , 177 W.Va. 138, 351 S.E.2d 51 (1986), the position taken by counsel was correct. Therefore, t his Court concludes that petitioner’s motion for sanctions should be and is hereby denied.

9 Because the circuit court made its ruling pursuant to Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas Corpus Proceedings , petitioner is free to make a subsequent claim for additional credit for time served as long as he has “adequate factual support” for the

claim.5

ISSUED: January 25, 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