State ex rel. McCabe v. Seifert

• Decision Date: 29 November 2006
• Docket Number: No. 32976.,32976.
• Citation: 640 S.E.2d 142
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Robert L. McCABE, Petitioner Below, Appellant, v. Evelyn SEIFERT, Warden, Northern Correctional Center, Respondent Below, Appellee, and West Virginia Division of Corrections Parole Services, Appellee.

640 S.E.2d 142

STATE ex rel. Robert L. McCABE, Petitioner Below, Appellant, v. Evelyn SEIFERT, Warden, Northern Correctional Center, Respondent Below, Appellee, and West Virginia Division of Corrections Parole Services, Appellee.

No. 32976.

Supreme Court of Appeals of West Virginia.

Submitted: October 19, 2006.

Decided: November 29, 2006.

Syllabus by the Court

1. "Moot 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. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)

2. "Where the State agrees that a specific sentence is a suitable disposition of a criminal case and enters into a plea agreement with the defendant pursuant to Rule 11(e)(1)(C) of the West Virginia Rules of Criminal Procedure, the trial court may either accept or reject the entire agreement, but it may not accept the guilty plea and impose a different sentence." Syl. pt. 2, State ex rel. Forbes v. Kaufman, 185 W.Va. 72, 404 S.E.2d 763 (1991)

Melissa J. Giggenbach, Esq., Morgantown, for the Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, Charleston, for the Appellees.

PER CURIAM.

This case is before this Court upon the appeal of Robert L. McCabe from the April 20, 2005, order of the Circuit Court of Monongalia County denying him relief in habeas corpus. McCabe was convicted in that Court, in 2000, of five felonies: three counts of obtaining money by false pretenses, one count of obtaining labor, services and materials by false pretenses and one count of conducting a fraudulent scheme. The convictions were entered upon guilty pleas and concerned a contracting business McCabe operated in the Monongalia County area. McCabe was sentenced to a term of 1 to 10 years upon each of the convictions, the sentences to run concurrently. No direct appeal was filed.

In this habeas proceeding, filed in the Circuit Court in April 2005, McCabe alleged several grounds for relief and focused, primarily, upon an alleged discrepancy between the sentencing order and his underlying plea agreement. The alleged discrepancy concerns the date his concurrent sentences were to commence. Pursuant to its order of April 20, 2005, the Circuit Court denied relief upon all grounds. After McCabe filed his appeal in this Court from that order, he was released upon parole. That fact was noted by this Court during oral argument at which time counsel for the State asserted that, in view of McCabe's release, this appeal is moot. Also during oral argument, counsel for McCabe stated that two unrelated issues raised in his appeal from the April 20, 2005, order are now withdrawn.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Upon careful examination, and in view of McCabe's release from incarceration in combination with (1) his withdrawal of a substantial portion of the appeal from this Court's consideration and (2) the fact that he raises no issues concerning the terms of his parole, other than an uncertainty as to its termination date brought about by the alleged discrepancy, this Court concludes that this appeal is moot and should be dismissed from the docket of this Court, with leave granted to McCabe to file a motion in the Circuit Court for a corrected sentencing order.

I. Procedural Background

In 1996, in an unrelated Monongalia County prosecution, McCabe was convicted of conspiracy to commit murder, obtaining money by false pretenses and obtaining property in return for a worthless check. He received an aggregate sentence of 2 to 15 years with an effective sentence date of June 10, 1995. McCabe was placed upon parole as to those convictions in 1998. His parole was revoked, however, and he was reincarcerated.

In January 2000, a Monongalia County grand jury returned a seven count indictment against McCabe, No. 00-F-43, charging him with offenses relating a to contracting business he operated in the Monongalia County area. On October 16, 2000, McCabe, his court appointed counsel and the prosecuting attorney signed a plea agreement made under the provisions of West Virginia Rule of Criminal Procedure 11(e)(1)(C).¹ Pursuant thereto, McCabe agreed to plead guilty to three counts of obtaining money by false pretenses, one count of obtaining labor, services and materials by false pretenses and one count of conducting a fraudulent scheme. The agreement further provided that McCabe would serve five concurrent sentences of 1 to 10 years each and that the sentences would be "consecutive to the sentence or sentences which [McCabe] is currently serving [the 2 to 15 years for the 1996 convictions]."

On December 11, 2000, the Circuit Court entered an order accepting the plea agreement. The order made clear that McCabe understood that the plea agreement was binding and that he would be sentenced in accord with the agreement's provisions. As the order reflects, McCabe was sentenced to five concurrent terms of 1 to 10 years each for his convictions of obtaining money by false pretenses, obtaining labor, services and materials by false pretenses and conducting a fraudulent scheme. The order, however, contained a discrepancy concerning the date the concurrent sentences were to commence. Although the plea agreement stated that those sentences would be served consecutively to the sentence or sentences McCabe received with regard to the 1996 convictions, the December 11, 2000, order indicated that the new sentences would not begin to run until McCabe was again paroled upon the 1996 convictions.² No direct appeal was ever filed from the order.

The petition for a writ of habeas corpus was filed in the Circuit Court of Monongalia County on April 13, 2005, under the West Virginia Post-Conviction Habeas Corpus Act. W.Va.Code, 53-4A-1 (1967), et seq. McCabe, represented by new appointed counsel, alleged several grounds for relief and focused, primarily, upon the discrepancy between the sentencing order of December 11, 2000, and the underlying plea agreement. Pursuant to the order of April 20, 2005, however, the Circuit Court denied relief upon all grounds. In particular, the Circuit Court indicated that the purported discrepancy did not affect the commencement of McCabe's concurrent 1 to 10 year sentences as contemplated under the plea agreement.

The appeal from the denial of habeas relief was filed with the Clerk of the Circuit Court on July 11, 2005, and received in this Court in August 2005. On January 23, 2006, McCabe was released upon parole with regard to the 1996 convictions.³ Thereafter final argument was heard by this Court, and the appeal was submitted for decision.

II. Standard of Review

As long recognized by this Court: "Moot 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. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908). See also, syl. pt. 5, Cooper v. City of Charleston, 218 W.Va. 279, 624 S.E.2d 716 (2005); syl., Kemp v. State, 203 W.Va. 1, 506 S.E.2d 38 (1997). Similarly, syllabus point 1 of Tynes v. Shore, 117 W.Va. 355, 185 S.E. 845 (1936), holds: "Courts will not ordinarily decide a moot question."

III. Discussion

The right to petition for relief in habeas corpus is recognized in The Constitution of the United States and in The Constitution of West Virginia.⁴ The State Constitution and other provisions of State law confer jurisdiction in such cases upon this Court and upon the circuit courts.⁵ Complimentary to those broad provisions, the West Virginia Legislature has recognized various circumstances wherein the filing of a petition for a writ of habeas corpus would be appropriate. For example, W.Va.Code, 53-4-1 (1923), provides for the granting of habeas relief to a person "detained without lawful authority," and, in W.Va.Code, 49-5-14(b) (1999), the right to seek release by habeas corpus in juvenile matters is acknowledged. Moreover, W.Va.Code, 27-5-5 (1974), recognizes the right to petition for habeas relief in involuntary hospitalization cases, and W.Va.Code, 48-1-222 (2001), defines a domestic relations action as including an action to allocate custodial responsibility and determine decision-making responsibility or to otherwise determine child custody, "as in an action petitioning for a writ of habeas corpus wherein the issue is child custody."

As stated above, McCabe's petition for a writ of habeas corpus was filed in the Circuit Court under the West Virginia Post-Conviction Habeas Corpus Act. As this Court concluded in syllabus point 2 of State ex rel. Burgett v. Oakley, 155 W.Va. 276, 184 S.E.2d 318 (1971): "The intent of the Post-Conviction Habeas Corpus Act, Code, 53-4-1, et seq., as amended, was to liberalize, rather than restrict, the exercise of the writ of habeas corpus in criminal cases." Syl. pt. 1, Adams v. Circuit Court of Randolph County, 173 W.Va. 448, 317 S.E.2d 808 (1984).⁶ The relevant portion of the Act to these proceedings, W.Va.Code, 53-4A-1(a) (1967), provides:

Any person convicted of a crime and incarcerated under sentence of imprisonment therefor who contends that there was such a denial or infringement of his rights as to render the conviction or sentence void under the Constitution of the United States or the Constitution of this State, or both, or that the court was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under the common-law or any statutory provision of this State, may, without paying a filing fee, file a petition for a writ of habeas corpus ad subjiciendum, and prosecute the same, seeking...