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State v. Letcher M

Supreme Court of West Virginia

November 3, 2017

State of West Virginia, Plaintiff Below, Respondent
v.
Letcher M., Defendant Below, Petitioner

         Barbour County 07-F-44

          MEMORANDUM DECISION

         Petitioner Letcher M., [1] pro se, appeals the September 10, 2016, order of the Circuit Court of Barbour County denying his motion for correction of illegal sentence. Respondent the State of West Virginia ("State"), by counsel Gordon L. Mowen, II, filed a summary response in support of the circuit court's order. 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 affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner was indicted on five counts of second-degree sexual assault and two counts of sexual abuse by a guardian or custodian. On March 19, 2008, the parties entered into a plea agreement, whereby petitioner agreed to plead guilty to one count of sexual abuse by a parent, guardian, or custodian and three counts of third-degree sexual assault as a lesser included offense of second-degree sexual assault. The State agreed to dismiss the remaining charges. With regard to sentencing, the plea agreement provided as follows:

[Petitioner] acknowledges that he understands that . . . this [a]greement is the type specified in Rule 11(e)(1)(B) of the West Virginia Rules of Criminal Procedure whereby the [State] will make a recommendation or agree not to oppose [petitioner]'s request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the [c]ourt and that[, ] if the [c]ourt does not accept the recommendation or request, [petitioner] nevertheless has not [sic] right to withdraw the plea, as advised in subdivision (e)(2) of said rule.
The State will make a sentence recommendation based upon the [p]resentence [i]nvestigation.

         Also, on March 19, 2008, petitioner filed a statement in support of his guilty pleas, in which he acknowledged that "the matter of sentencing is strictly for the [c]ourt to decide" and that the court "will not be obligated or required to give any effect . . . to [the State's] recommendations." At a March 19, 2008, plea hearing, the circuit court accepted the parties' plea agreement and petitioner's guilty pleas, finding that he "freely and voluntarily entered" guilty pleas to one count of sexual abuse by a parent, guardian, or custodian and three counts of third-degree sexual assault. The circuit court further found that petitioner acknowledged that the court "was not bound by the recommendation of the State."

         At a September 3, 2008, sentencing hearing, petitioner appeared in person and by counsel. Following statements by the parties, the circuit court denied a request for alternative sentencing on the ground that petitioner was not a suitable candidate. During the hearing, the circuit court sentenced petitioner to one term of ten to twenty years of incarceration for his conviction for sexual abuse by a parent, guardian, or custodian and to three terms of one to five years of incarceration for each conviction for third-degree sexual assault. The circuit court ordered that petitioner serve his sentences consecutively based on a finding that he is "a danger to children, " which amounted to an aggregate term of thirteen to thirty-five years of incarceration.

         On the same day as the sentencing hearing, the circuit court entered a commitment order committing petitioner to the custody of the West Virginia Division of Corrections ("DOC"). The September 3, 2008, commitment order listed only petitioner's sentence of ten to twenty years of incarceration for sexual abuse by a parent, guardian, or custodian. Consequently, on September 9, 2008, the DOC issued petitioner a time sheet that listed only petitioner's sentence for sexual abuse by a parent, guardian, or custodian and calculated his minimum discharge date as February 6, 2018. The DOC time sheet included a disclaimer that the time calculation was "based on information from [his] commitment and/or sentencing orders" and that, if there were errors, the inmate was to contact his "attorney or the circuit clerk to request an amended order."

         On September 18, 2008, the circuit court memorialized its rulings from the September 8, 2008, hearing in a sentencing order that set forth that petitioner was sentenced to one term of ten to twenty years of incarceration for his conviction for sexual abuse by a parent, guardian, or custodian and to three terms of one to five years of incarceration for each conviction for third-degree sexual assault and that he was to serve those sentences consecutively. Accordingly, the circuit court, sua sponte, entered a corrected commitment order on September 30, 2008, to reflect all four of petitioner's sentences.

         The record does not reflect when the September 30, 2008, commitment order was sent to the DOC. However, the DOC issued a new time sheet to petitioner on February 23, 2010, reflecting that petitioner was serving four consecutive sentences for an aggregate term of thirteen to thirty-five years of incarceration with a minimum discharge date of August 7, 2025. The February 23, 2010, DOC time sheet set forth the same disclaimer as the September 9, 2008, time sheet: that the time calculation was "based on information from [his] commitment and/or sentencing orders" and that, if there were errors, the inmate was to contact his "attorney or the circuit clerk to request an amended order."

         On April 21, 2016, petitioner filed a motion for correction of illegal sentence pursuant to Rule 35(a) of the West Virginia Rules of Criminal Procedure.[2] First, petitioner contended that the September 30, 2008, corrected commitment order imposed an illegal sentence because the September 3, 2008, commitment order stated that he had a single sentence of ten to twenty years of incarceration. Second, petitioner contended that he entered his guilty pleas "with the understanding that the sentence to be levied would be a concurrent sentence[, ] which would result in a 10 to 20 year [aggregate term]."

         The circuit court denied petitioner's motion by order entered September 10, 2016, finding that he "is simply not entitled to the relief he has requested." Though the circuit court did not address petitioner's contention that he expected to serve concurrent sentences, the court found that the September 3, 2008, commitment order "was later superceded [sic] by a commitment form and full sentencing order for a total sentence of not less than thirteen (13) nor more than thirty[-]five (35) years." The circuit court explained that the September 3, 2008, commitment order was entered the same day as petitioner's sentencing hearing to shift the costs of his upkeep from Barbour County to the DOC and the form used for that order "did not contain space for all of [petitioner]'s sentences and was amended by the [c]ommitment [f]orm entered [on] September 30, 2008."

         Petitioner appeals the circuit court's September 10, 2016, order denying his Rule 35(a) motion for correction of illegal sentence. In syllabus point 1 of State v. Marcum, 238 W.Va. 26, 792 ...


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