Pratt v. Ballard, 15–1157

• Decision Date: 09 November 2016
• Docket Number: No. 15–1157,15–1157
• Court: West Virginia Supreme Court
• Parties: Raymond PRATT, Petitioner Below, Petitioner v. David BALLARD, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

238 W.Va. 184
793 S.E.2d 348

Raymond PRATT, Petitioner Below, Petitioner
v.
David BALLARD, Warden, Mt. Olive Correctional Complex, Respondent Below, Respondent

No. 15–1157

Supreme Court of Appeals of West Virginia.

Submitted: October 25, 2016
Filed: November 9, 2016

Justin Gregory, Esq., J. Gregory Law Firm, L.C., Oakland, Maryland, Counsel for the Petitioner.

Patrick Morrisey, Esq., Attorney General, David A. Stackpole, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for the Respondent.

Chief Justice Ketchum :

The petitioner, Raymond Pratt, an inmate serving a life sentence at the Mt. Olive Correctional Complex, appeals from the October 29, 2015, order of the Circuit Court of Marion

793 S.E.2d 350

County (the "habeas court") denying him relief in habeas corpus. Pratt's criminal history includes convictions of a number of felonies. The matter now before us concerns his April 1976 conviction in Marion County of armed robbery. That conviction resulted in Pratt's life sentence.

In the October 29, 2015, order, the habeas court set forth reasons for the imposition of Pratt's life sentence as directed by this Court in Pratt v. Holland , 175 W.Va. 756, 338 S.E.2d 236 (1985). In addition, the habeas court rejected Pratt's challenge to the West Virginia Parole Board's determination that he is ineligible for parole consideration.

Pratt contends that the habeas court committed error by including an impermissible factor in the basis for his life sentence. The life sentence included the element of mercy, and Pratt was released on parole in 1986. While on parole, Pratt was convicted of murder in Pennsylvania. Upon completion of his Pennsylvania sentence, Pratt's parole was revoked by the West Virginia Parole Board. Pratt contends that, inasmuch as the Pennsylvania murder conviction occurred well after his armed robbery conviction, the habeas court should not have included the Pennsylvania murder conviction in the basis for Pratt's life sentence. Moreover, Pratt contends that the denial of a hearing before the Parole Board prior to the Board's determination of his ineligibility for parole violated his right to due process of law.

This Court concludes that Pratt's contentions are without merit. Accordingly, we affirm the October 29, 2015, order denying Pratt relief in habeas corpus.

I. The Underlying Conviction

On March 10, 1975, the Marion County grand jury returned a one count indictment, No. 7216, charging Pratt with the armed robbery of Fairmont Community Foodland. Pratt was convicted of that offense in April 1976 following a jury trial. On June 1, 1976, the trial court sentenced Pratt to life imprisonment. See W.Va. Code , 61–2–12 [1961] (providing a penalty for armed robbery of "not less than ten years"); State ex rel. Faircloth v. Catlett , 165 W.Va. 179, 181, 267 S.E.2d 736, 737 (1980) (A convicted armed robber may be punished by a fixed term of life imprisonment.).

The trial court imposed the life sentence, rather than a lesser term of years, without setting forth a factual basis for the sentence on the record.¹ The parties in the current habeas proceeding agree, nevertheless, that the sentence Pratt received was life, "with mercy," thereby rendering him eligible for parole consideration. As a result of delays, including a delay in the completion of the trial transcript, Pratt was resentenced several times in order to extend his appeal period. However, no direct appeal to this Court from the armed robbery conviction was filed.

II. Prior Collateral Proceedings

In 1980, this Court issued the opinion State v. Houston , 166 W.Va. 202, 273 S.E.2d 375 (1980), wherein two defendants convicted of robbery by violence challenged the length of their thirty and forty year sentences. Nothing in the record indicated the factual basis upon which the penitentiary terms were imposed.² Remanding the cases for further development, this Court held in Houston that, to facilitate meaningful judicial review, an "appropriate record shall be made to provide the factual basis" for the sentences. Houston , 166 W.Va. at 210, 273 S.E.2d at 379.

On March 9, 1982, Pratt filed a petition for a writ of habeas corpus in the Circuit Court of Marion County.³ Pratt alleged that he had

793 S.E.2d 351

been improperly sentenced and that he had been denied a meaningful appeal. As a result of the habeas proceeding, a pre-sentence investigation was completed, and Pratt was again resentenced for purposes of appeal. A November 30, 1983, order clarified Pratt's sentence as follows:

Whereupon, the Court, after a review of the pre-sentence investigation made by the Department of Corrections, and the statements of counsel, and testimony presented to the Court, does hereby order that the defendant, Raymond Pratt, be confined in the West Virginia Penitentiary at Moundsville, West Virginia, for life, with credit for time previously served on this matter. It is the intention of this Court that [Pratt] shall be eligible for parole, after serving a minimum of ten (10) years on this sentence.

Thereafter, Pratt filed an appeal and an original habeas corpus petition in this Court, both of which challenged the validity of Pratt's life sentence. Although Pratt's appeal was refused, the habeas petition resulted in this Court's opinion in Pratt v. Holland , 175 W.Va. 756, 338 S.E.2d 236 (1985).⁴ In Pratt v. Holland , this Court rejected Pratt's assertion that he should be released from confinement because of extraordinary dereliction by the State in bringing about the entry of numerous resentencing orders. However, citing State v. Houston , we remanded the case to the Circuit Court of Marion County with directions to put the reasons for imposing the life sentence on the record.

However, before the circuit court could convene a hearing to develop a sentencing record, Pratt was placed on parole. While on parole, Pratt was arrested in Pennsylvania for first degree murder and was convicted of that offense in January 1988 following a jury trial. However, the case was reversed and remanded on August 16, 1989, by the Superior Court of Pennsylvania. See Commonwealth v. Pratt , 394 Pa.Super. 615, 565 A.2d 821 (1989), aff'd , 524 Pa. 627, 574 A.2d 68 (1990) (unpublished opinions). On remand, Pratt pled guilty to murder of the third degree, an offense under Pennsylvania's murder statute, 18 Pa.C.S.A. § 2502 [1978].⁵ Pratt then served a penitentiary term in Pennsylvania. Upon release, his parole was revoked by the West Virginia Parole Board. Pratt was returned to custody in West Virginia, and his armed robbery sentence of life, with mercy, was reimposed.⁶

The West Virginia Parole Board informed Pratt that he would be eligible for further parole at a later date. Soon after, however, by letter dated October 4, 2007, Pratt was informed that he would be entirely ineligible for parole in the future. The Parole Board's determination of ineligibility was based upon a September 2007 memorandum from counsel for the West Virginia Department of Corrections which concluded that a conviction of

793 S.E.2d 352

third degree murder in Pennsylvania is virtually the same as a second degree murder conviction in this State. Consequently, Pratt was said to be ineligible for further parole pursuant to W.Va. Code , 62–12–19(c) [2006]⁷ , which provides in relevant part:

When a parolee has violated the conditions of his or her release on parole by confession to, or being convicted of, any of the crimes set forth in section eighteen of this article, he or she shall be returned to the custody of the Division of Corrections to serve the remainder of his or her maximum sentence, during which remaining part of his or her sentence he or she is ineligible for further parole .

(emphasis added) The reference in the statute to "crimes set forth in section eighteen of this article" is to W.Va. Code , 62–12–18 [2006], which addresses certain parole violations and lists crimes such as murder and aggravated robbery "or offenses with the same essential elements if known by other terms in other jurisdictions ." (emphasis added)

Although the record indicates that Pratt had a revocation hearing, he was not afforded an opportunity to appear before the Parole Board and participate in the analysis of the respective murder statutes resulting in the Board's determination.

III. The Current Habeas Corpus Proceeding

On November 19, 2012, Pratt filed the current habeas petition in the Circuit Court of Marion County (the habeas court). See West Virginia Post–Conviction Habeas Corpus Act , W.Va. Code , 53–4A–1 [1967], et seq . The petition was amended on January 2, 2014.⁸ Pratt alleged that the lack of a sentencing record regarding his armed robbery conviction violates the requirements of State v. Houston as well as this Court's directions in Pratt v. Holland to set forth reasons for imposing Pratt's life sentence. Pratt also alleged that the West Virginia Parole Board violated his right to due process by refusing him an opportunity to be heard and present evidence prior to the Board's determination that he is ineligible for further parole consideration. Specifically, rather than asking the habeas court to...