Echard v. Hedrick, No. 88-7197

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before DONALD RUSSELL, WIDENER and K.K. HALL; WIDENER; K.K. HALL
• Citation: 902 F.2d 28
• Decision Date: 07 May 1990
• Docket Number: No. 88-7197
• Parties: Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Carl Odell ECHARD, Petitioner-Appellant, v. Jerry C. HEDRICK; Charles Brown, Attorney General for the State of West Virginia, Respondents-Appellees.

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902 F.2d 28
Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Carl Odell ECHARD, Petitioner-Appellant,
v.
Jerry C. HEDRICK; Charles Brown, Attorney General for the
State of West Virginia, Respondents-Appellees. No. 88-7197. United States Court of Appeals, Fourth Circuit. Argued July 24, 1989.
Decided April 17, 1990.
As Amended April 24, 1990.
As Amended May 7, 1990.

Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. William M. Kidd, District Judge. (CA-88-38-E(K))

Richard Allen Bush, Bush & Trippel, Parkersburg, W.Va., argued, for appellant; Richard Allen Bush, Bush & Trippel, Parkersburg, W.Va., on brief.

Clarion Terry Owen, Senior Assistant Attorney General, Charleston, W.Va., for appellees.

Charles G. Brown, Attorney General, Charleston, W.Va., for appellees.

N.D.W.Va., 351 S.E.2d 51.

AFFIRMED.

Before DONALD RUSSELL, WIDENER and K.K. HALL, Circuit Judges.

WIDENER, Circuit Judge:

Carl Odell Echard is currently serving two sentences: one for a Ritchie County, West Virginia, conviction for second degree murder and one for a Wood County, West Virginia, conviction for unarmed robbery. He brings a habeas corpus action pursuant to 28 U.S.C. Sec. 2254 to challenge the sentence imposed by the circuit court of Wood County, which incidentally may question the validity of the Ritchie County sentence. Echard claims his sentence is invalid on two grounds. First, he claims that the sentence imposed in Wood County was improper in that it was not imposed to run concurrently with that of Ritchie County because the consecutive sentence levied by the Wood County circuit court violated a plea agreement he entered into in Ritchie County. He also claims that he was not given proper good time credit on his sentences. We find these claims without merit and affirm.

On May 10, 1978, Echard was convicted of armed robbery in Wood County. ¹ Taking note of two prior convictions, the Wood County circuit court sentenced Echard to life imprisonment as a recidivist on June 28, 1978. ² In order to allow the defendant time to appeal the conviction and sentence, however, execution of the sentence was stayed until October 31, 1978.

On July 5, 1978, Echard was charged with first degree murder in Ritchie County. Pursuant to a plea bargain agreement, on March 24, 1980, he pleaded guilty to the lesser included offense of second degree murder. He was sentenced to a term of not less than five years or more than eighteen years. The court followed the prosecuting attorney's recommendation and ordered that the sentence run concurrently with the life sentence previously imposed in Wood County.

On July 29, 1981, the West Virginia Supreme Court of Appeals reversed the first conviction and life sentence (Wood County) and remanded the case for new trial. ³ Instead of going through with the new trial, however, Echard entered a plea bargain agreement with the State and pleaded guilty to unarmed robbery. On his plea, he was sentenced to not less than five nor more than twenty-three years in the penitentiary. This agreement, however, was silent as to whether the sentence would run concurrently with or consecutive to the Ritchie County conviction. The Wood County circuit court imposed the sentence to run consecutive to the Ritchie County sentence.

Echard appealed once more to the West Virginia Supreme Court of Appeals. ⁴ His appeal centered on whether he was properly awarded good time credit for his original sentence in Wood County. The Court decided that the records clerk improperly applied West Virginia's good time statute and arrived at an incorrect discharge date. It reworked the calculations and arrived at a discharge date of February 4, 1991. Otherwise, the sentences of the circuit courts were left undisturbed.

Echard claims that the circuit court of Wood County erred when it imposed his sentence to run consecutive to the sentence in Ritchie County. ⁵ The argument goes that such a sentence was in violation of his plea bargain in Ritchie County and, therefore, of constitutional significance. He claims that he entered into the plea bargain agreement on the strength of the prosecution's promise that the sentences would run concurrently.

This promise, however, was fulfilled when the Ritchie County circuit court ordered the sentences to run concurrently. So the argument fails. The life sentence with which the Ritchie County sentence was to run concurrently was vacated by Echard's own doing. Echard was sentenced in Wood County on the unarmed robbery charge after the Ritchie County sentence had been imposed and the Ritchie County Agreement had been given effect. Echard presents no authority, and we know of none, which would, absent explicit agreement, bind the State to the Ritchie County plea bargain agreement for a Wood County conviction not yet had, much less sentenced for.

The Constitution itself does not guarantee good time credit for satisfactory behavior while in prison. However, once a State creates a right to good time, the prisoner's interest is sheltered by due process. Wolff v. McDonnell, 418 U.S. 539, 557 (1974).

In West Virginia, good time is regulated by statute and is the time deducted from the sum of the maximum terms of two indeterminate consecutive sentences to determine a minimum discharge date. Echard v. Holland, 351 S.E.2d at 57.

During the periods of time involved here, Echard was entitled to overtime good time of 4 years, 8 months and 20 days and warden's good time of 9 months and 20 days. ⁶ He also was entitled to pre-sentence credit of 1487 days for time served on his Wood County conviction prior to its reversal. Those just mentioned good time credits on the sentences are by virtue of West Virginia Code Sec. 28-5-27a and 28-5-27b prior to its 1984 amendment. In addition, under West Virginia Code Sec. 28-5-27(c) of the

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statute following the 1984 amendment, day for day good time is credited.

The West Virginia Court in Echard v. Holland, in computing the minimum discharge date, decided that the sentencing date of March 24, 1980, was the effective date for purposes of computing Echard's minimum discharge date. 351...