Jason M. Payne, Petitioner Below, Petitioner
Donnie Ames, Superintendent, Mt. Olive Correctional Complex, Respondent Below, Respondent
Jason M. Payne, pro se, appeals the February 14, 2018, order
of the Circuit Court of Morgan County denying his petition
for a writ of mandamus. Respondent Donnie Ames,
Superintendent, Mt. Olive Correctional Complex,
counsel Robert L. Hogan, 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 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.
underlying criminal case, No. 07-F-69, petitioner was
sentenced to forty years of incarceration for second-degree
murder, with an additional five years of incarceration as an
enhancement for a prior felony conviction. On January 25,
2016, respondent issued a notice of withholding notifying
petitioner that deductions from his prison trust account
would commence on March 25, 2016, pursuant to West Virginia
Code § 25-1-3c(c)(1),  to pay assessed court costs and
restitution in No. 07-F-69 in the total amount of $21,
239.32. On February 13, 2018, petitioner filed a petition for
a writ of mandamus in No. 07-F-29, requesting that respondent
cease making deductions from petitioner's prison trust
account and reimburse him for amounts already deducted.
According to the attached certificate of service, petitioner
served the petition on the Circuit Court of Morgan County and
the Circuit Clerk of Morgan County, but failed to serve the
petition on either respondent or the Prosecuting Attorney of
Morgan County ("Prosecuting Attorney") as the
State's attorney in No. 07-F-29. The next day, February
14, 2018, the circuit court entered an order denying the
petition. On February 26, 2018, petitioner filed a motion to
alter or amend the February 14, 2018, denial of his petition.
Again, petitioner failed to serve this motion on either
respondent or the Prosecuting Attorney. On March 26, 2018,
the circuit court denied the motion to alter or amend.
now appeals the circuit court's February 14, 2018, order
denying the petition for a writ of mandamus. "This Court
may, on appeal, affirm the judgment of the lower court when
it appears that such judgment is correct on any legal ground
disclosed by the record, regardless of the ground, reason or
theory assigned by the lower court as the basis for its
judgment." Syl. Pt. 3, Barnett v. Wolfolk, 149
W.Va. 246, 140 S.E.2d 466 (1965).
appeal, petitioner argues that the circuit court erred in
denying his mandamus petition. However, respondent asks that
we affirm the circuit court's denial of the petition on
an alternate ground. Respondent argues that petitioner
seemingly filed a civil action (i.e., a mandamus action) in a
criminal case. However, regardless of the exact nature of the
proceeding, petitioner failed to serve his petition on either
respondent or the Prosecuting Attorney as the State's
attorney in No. 07-F-69. Respondent argues that we should affirm
the circuit court's February 14, 2018, order based on
petitioner's failure to serve the mandamus petition and
the court's resulting lack of personal jurisdiction over
respondent. We agree with respondent.
Painter v. Ballard, 237 W.Va. 502, 505, 788 S.E.2d
30, 33 (2016), a mandamus action, the petitioner challenged
respondent's implementation of statutory and regulatory
directives regarding deductions from the petitioner's
prison trust account to pay court-ordered restitution. We
reiterated that jurisdiction constituted a threshold issue,
noting that it was "the inherent power of a court to
decide a case." Id. at 507, 778 S.E.2d at 35
(citing Sidney C. Smith Corp. v. Dailey, 136 W.Va.
380, 386-87, 67 S.E.2d 523, 526-27 (1951)) (Internal
quotations and other citations omitted.). "Jurisdiction
is made up of two elements-jurisdiction of the subject matter
and jurisdiction of the person." Sidney C. Smith
Corp., 136 W.Va. at 386, 67 S.E.2d at 526. In State
ex rel. West Virginia Truck Stop, Inc. v. Belcher, 156
W.Va. 183, 192 S.E.2d 229 (1972), we found that, "[t]o
hear and determine an action[, ] the court must have
jurisdiction of the parties." Id. at 187, 192
S.E.2d at 232; see Syl. Pt. 3, Beane v.
Dailey, 226 W.Va. 445, 701 S.E.2d 848 (2010) (holding
that jurisdiction does not exist where service of process is
defective). Based on our review of the certificate of service
attached to the mandamus petition, and the record as a whole,
we find that the circuit court did not have personal
jurisdiction over respondent given petitioner's failure
to serve his petition on respondent. Accordingly, we affirm
the circuit court's denial of the petition on the ground
that jurisdiction did not exist over both of the parties.
foregoing reasons, we affirm the circuit court's February
14, 2018, order denying petitioner's petition for a writ
CONCURRED IN BY: CHIEF JUSTICE ELIZABETH D. WALKER JUSTICE
MARGARET L. WORKMAN JUSTICE TIM ARMSTEAD JUSTICE EVAN H.
JENKINS JUSTICE JOHN A. HUTCHISON
 Since the filing of the appeal
in this case, the superintendent at Mount Olive Correctional
Complex has changed and the superintendent is now Donnie
Ames. The Court has made the necessary substitution of
parties pursuant to Rule 41(c) of the West Virginia Rules of
Appellate Procedure. Additionally, effective July 1, 2018,
the positions formerly designated as "wardens" are
now designated "superintendents." See
W.Va. Code § 15A-5-3.
On October 12, 2018, petitioner filed a motion to file a
reply out of time. This Court denied petitioner's motion
by order ...