Darrell Guthrie, pro se, appeals the September 6, 2016, order
of the Circuit Court of Cabell County denying his motion for
reconsideration of an order revoking his home incarceration.
Respondent State of West Virginia, by counsel Shannon
Frederick Kiser, filed a summary response in support of the
circuit court's order.
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 that petitioner's appeal has been
rendered moot. For these reasons, a memorandum decision
dismissing the appeal is appropriate under Rule 21 of the
Rules of Appellate Procedure.
his indictment, petitioner entered into a plea agreement with
the State, in which he agreed to plead guilty to nighttime
burglary and daytime burglary without breaking and the State
agreed to dismiss grand larceny, petit larceny, and felony
possession of a firearm charges. In May of 2014, the circuit
court accepted the plea agreement and petitioner's guilty
pleas, and dismissed the remaining counts of the indictment.
In July of 2014, the circuit court sentenced petitioner to
consecutive terms of incarceration and ordered that he serve
those sentences on home incarceration.
April 21, 2016, the State filed a petition to have
petitioner's home incarceration revoked for alleged
violations of its terms and conditions. Following an April
28, 2016, hearing, the circuit court revoked home
incarceration and committed petitioner to the physical
custody of the West Virginia Division of Corrections
("DOC") by order entered on May 20, 2016.
Petitioner did not appeal the circuit court's May 20,
2016, order; however, on September 1, 2016, he filed a motion
asking the court to reconsider its revocation of his home
incarceration pursuant to Rule 35 of the West Virginia Rules
of Civil Procedure. By order entered on September 6, 2016, the
circuit court denied petitioner's motion. Petitioner
appealed the circuit court's September 6, 2016, order on
October 5, 2016. On January 19, 2017, the DOC released
petitioner from its physical custody pursuant to an order
from the West Virginia Parole Board granting him parole.
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. 4, Cline v. Mirandy, 234
W.Va. 427, 765 S.E.2d 583 (2014) (Internal quotations and
citations omitted.). In syllabus point 3 of Cline,
we held that parolees were not "incarcerated"
pursuant to the West Virginia Post-Conviction Habeas Corpus
Act, West Virginia Code §§ 53-4A-1 to 53-4A-11, so
that courts had jurisdiction to entertain their petitions for
a writ of habeas corpus. Id. at 428, 765 S.E.2d at
584. We distinguished parole from home incarceration on the
ground that the latter was a more restrictive form of custody
because, unlike a parolee, a defendant serving his sentence
on home incarceration "does not have 'the freedom to
come and go as he pleases; his daily activities are subject
to both the supervision and control of the Home Incarceration
Office.'" Id. at 434, 765 S.E.2d at 590
(quoting Elder v. Scolapia, 230 W.Va. 422, 427, 738
S.E.2d 924, 929 (2013)). In the instant appeal, petitioner asks
for the reinstatement of his home incarceration. However,
given that petitioner has been granted parole, he now enjoys
a less restrictive form of custody. Therefore, we dismiss
petitioner's appeal because it has been rendered moot.
CONCURRED IN BY Chief Justice Allen H. Loughry II, Justice
Robin Jean Davis, Justice Margaret L. Workman, Justice Menis
E. Ketchum, Justice Elizabeth D. Walker
The circuit court sentenced petitioner
to one to fifteen years of incarceration for nighttime
burglary pursuant to West Virginia Code § 61-3-11(a).
The record contains a discrepancy regarding whether the
circuit court sentenced petitioner to one to ten years of
incarceration for daytime burglary without breaking pursuant
to West Virginia Code § 61-3-11(b). Though the circuit
court's May 8, 2014, plea order reflects that the court
advised petitioner of the correct sentence under West
Virginia Code § 61-3-11(b), the July 11, 2014,
sentencing order reflects that the court sentenced petitioner
to one to fifteen years of incarceration for both nighttime
burglary and daytime burglary without breaking. However,
because petitioner does not challenge the length of his
sentence for daytime burglary without breaking, we decline to
address that issue in this appeal.
According to petitioner, he filed his
motion pursuant to Rule 35(a), which governs correction of
illegal sentences. However, because petitioner did not allege
that either of his sentences were outside statutory limits,
it is unclear whether petitioner properly filed his motion
under Rule 35(b) or whether the motion came under Rule 35(b),
which allows a defendant to ask for a reduction in his
sentence within 120 days of the entry of an order in which
"probation" is revoked.
In syllabus point 2 of Elder,
we held that defendants serving their sentences on home
incarceration were "incarcerated" pursuant to the
Post-Conviction Habeas Corpus Act and that courts have
jurisdiction to entertain their habeas ...