MICHAEL O'DELL DENNIS,
Petitioner Below, Appellant
STATE OF WEST VIRGINIA, DIVISION OF CORRECTIONS,
TERESA WAID, WARDEN,
HUTTONSVILLE CORRECTIONAL CENTER
Respondents Below, Appellees,
Appeal from the Circuit Court of Ohio County
Honorable Arthur M. Recht, Judge
Civil Action No. 08-C-91
REVERSED AND REMANDED
Submitted: February 25, 2009
Filed: May 14, 2009
| Andrew M. Price, Esq.
Smith, Price & Pangburn
Wheeling, West Virginia
Attorney for Appellant
| Scott R. Smith, Esq.
Wheeling, West Virginia
Attorney for Appellees
Whereupon, the Court was asked by the Defendant to
make a finding that the Defendant was entitled to credit for
concurrent time served since the time the Defendant was
sentenced on September 19, 2002 for Robbery in the Second
Degree. Counsel for the State objected, and the Court did NOT
make the finding requested by the Defendant. The Court further
indicated that the issue should be determined by the W. Va.
Division of Corrections.
The appellant now asserts that he learned sometime in September 2006 that he did not receive credit from the Parole Board for the time he had served on the original second degree robbery sentence. According to the appellant, it is the position of the Parole Board that the appellant will not be eligible for parole until July 25, 2016. Apparently, the Parole Board arrived at this date by adding the remaining portion of the minimum sentence for kidnaping, which expires in July 2011, to the full five year minimum sentence for second degree robbery. Therefore, it appears that the Parole Board has not granted to the appellant any credit for time served on the original second degree robbery sentence.
Thereafter, the appellant brought a declaratory judgment and mandamus action in the Circuit Court of Kanawha County in which he challenged the Parole Board's failure to credit him with time served on the original second degree robbery sentence. By order of March 21, 2007, the court denied the relief sought. The circuit court based its decision on the finding that it lacked jurisdiction to grant a declaratory judgment in the appellant's favor because the Parole Board is required to give effect to sentencing orders as written. Therefore, a declaration on behalf of the appellant would be of no practical assistance in setting the underlying controversy to rest. In addition, the circuit court denied a writ of mandamus on the basis that the appellant failed to show that he had a clear legal right or that the Parole Board had a clear legal duty to provide the appellant with the requested relief. The appellant subsequently appealed the circuit court's decision to this Court, and this Court refused the petition for appeal.
The appellant subsequently filed a petition for a writ of habeas corpus in the Circuit Court of Ohio County in which he sought relief from the Parole Board's failure to credit him for time served on the original second degree robbery sentence. The appellant also argued that the court's sentence violated constitutional principles because his robbery sentence after his appeal is greater than the original sentence in that it runs consecutively to the kidnaping sentence and not concurrently. The appellant requested that his parole date be re-established to credit his second degree robbery sentence with the time served on the original sentence, or that his sentence be amended so that the second degree robbery sentence runs concurrently to the kidnaping sentence.
By order dated April 3, 2008, the Circuit Court of Ohio County denied the habeas relief sought by the appellant. The appellant now appeals the April 3, 2008, order.
In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a three-
prong standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard; the
underlying factual findings under a clearly erroneous standard;
and questions of law are subject to a de novo review.
Syllabus Point 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). This Court specifically has held that [f]indings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong. Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975). With these standards to guide us, we now proceed to our discussion of this case.
When the court [in a post-conviction habeas corpus
proceeding] determines to deny or grant relief, as the case may
be, the court shall enter an appropriate order. . . . In any order
entered in accordance with the provisions of this section, the
court shall make specific findings of fact and conclusions of law
relating to each contention or contentions and grounds (in fact
or law) advanced, shall clearly state the grounds upon which the
matter was determined, and shall state whether a federal and/or
state right was presented and decided.
In addition, Rule 4(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia indicates, in part, that
The [habeas corpus] petition shall be examined promptly
by the judge to whom it is assigned. The court shall prepare and
enter an order for summary dismissal of the petition if the
contentions in fact or law relied upon in the petition have been
previously and finally adjudicated or waived. The court's
summary dismissal order shall contain specific findings of fact
and conclusions of law as to the manner in which each ground
raised in the petition has been previously and finally adjudicated
Finally, this Court has held that
West Virginia Code section 53-4A-7(c) (1994) requires a circuit court denying or granting relief in a habeas corpus proceeding to make specific findings of fact and conclusions of law relating to each contention advanced by the petitioner, and to state the grounds upon which the matter was determined.
Syllabus Point 1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).
The appellant has raised grounds for relief that are cognizable in habeas corpus. (See footnote 3) Specifically, the appellant claims that the sentencing court violated Federal and State Constitutional prohibitions against double jeopardy by depriving him of credit for time served on his original robbery conviction. The appellant also asserts that the sentencing court violated the Federal and State Constitutions by imposing upon re-conviction a longer prison sentence than he originally received. The portion of the circuit court's order disposing of the appellant's habeas corpus petition reads in its entirety:
In accord with the requirements of Rule 4(c) of the West Virginia Rules Governing Post Conviction Habeas Corpus, this Court has examined the Petition and the underlying criminal matters and has concluded the grounds for relief the Petitioner has asserted have been previously and finally adjudicated or waived.
Accordingly, the Court has concluded the Petition should
be dismissed without a hearing and struck from the active
docket of this Court with the objection of the Petitioner saved to
the Court's ruling.
Clearly, the circuit court's order lacks the requisite findings of fact and conclusions of law that permit meaningful review by this Court. (See footnote 4) We only can speculate from the appellant's brief and the State's response the possible bases for the circuit court's decision. However, [t]he mission of the appellate judiciary is neither to mull theoretical abstractions nor to practice clairvoyance. State v. Miller, 194 W. Va. 3, 14, 459 S.E.2d 114, 125 (1995), quoting Moore v. Murphy, 47 F.3d 8, 10 (1st Cir. 1995). We previously have recognized that in most circumstances the failure to make specific findings of fact and conclusions of law regarding an issue raised in habeas proceedings . . . necessitate[s] a remand[.] State v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 19, 528 S.E.2d 207, 215 (1999). This is certainly the case here.
Reversed and remanded.