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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 warden1

, 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 VIRGINIA
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 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 bond was revoked on January 12, 2004, and he 

was re-incarcerated. According to petitioner, the Cabell County charge was dismissed shortly after 

his bond in Wayne County was revoked. 

 

 Petitioner pled guilty to two counts of daytime burglary, and the State agreed to dismiss 

two counts of grand larceny. The Circuit Court of Wayne County sentenced petitioner to one to ten 

years on each count of daytime burglary, to be served consecutively. Petitioner received 

eighty-eight days of credit for time served in Wayne County for the periods from November 6, 

2003 to November 25, 2003, and from January 12, 2004 to March 19, 2004, when he was 

sentenced. 

 On July 9, 2010, petitioner filed a motion for correction of sentence alleging that he was 

entitled to 137 days of credit for time served while being held in Cabell County on a detainer from 

Wayne County. The circuit court denied the motion noting that it “is using the November 7, 2003, 

date of arraignment[4

] in Wayne County as the date when petitioner was incarcerated 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 credit 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 credit for time served on November 6, 2003. 

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In its order denying the motion for correction of sentence, the circuit court noted that petitioner 

had previously been on parole but that he was re-incarcerated on February 15, 2009, because of a 

parole violation. 

6 On appeal, petitioner states that the number of days recited in his habeas petition was incorrect. 

Petitioner indicates that the correct number of days is 221 (eighty-eight days plus 133 additional 

days of credit). 
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4. That this is not a constitutional issue and for the reasons 

stated above this matter is not cognizable for a Writ 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 the respondent warden made a misrepresentation 

in the summary response. Counsel filed a response to 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 denial 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 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. 

“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 reviewed.” 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 denial 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. Petitioner asserts that if he had been convicted of the 

Cabell County charge, the sentencing court would have discretion to order that he serve the 

sentences concurrent with or consecutive to each other. However, because the Cabell County 

charge was dismissed and petitioner was held in Cabell 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 misreads 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. The 
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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 situation. The respondent warden argues that 

petitioner is not entitled to credit on his Wayne County sentence for the days he was held in jail in 

Cabell County. 

 In Echard, the appellant was arrested on a Ritchie County charge when he was already 

awaiting transfer to the state penitentiary on a Wood 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 records 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 restraint because of the Cabell County charge, and no 

additional restraint was imposed when the Prosecuting Attorney of Wayne County placed a hold 

on him. Therefore, this Court finds that the circuit court did not err in ruling that petitioner’s claim 

for additional presentence credit did not rise to the 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 denying 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 implicated 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 considerations 

which govern our decisions in this area, equal protection 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 that counsel for the respondent warden denied the 

fact a hold was placed on petitioner while being held in jail in Cabell County. However, as counsel 

explained in her response to the motion, she was not denying that the Prosecuting Attorney of 

Wayne County placed a hold on petitioner; rather, counsel’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, this 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. 
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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