                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Kevin Cart,                                                                           FILED
                                                                                    March 29, 2013
Petitioner Below, Petitioner                                                    RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs.) No. 12-0342 (Putnam County 11-C-267)

Evelyn Seifert, Warden, Northern Correctional Facility,
Respondent Below, Respondent

                               MEMORANDUM DECISION

         Petitioner Kevin Cart, pro se, appeals the Circuit Court of Putnam County’s order, entered
November 8, 2011, denying his petition for a writ of habeas corpus. The respondent warden, by
Scott E. Johnson and John Boothroyd, his attorneys, filed a summary response to which petitioner
filed a reply.

       The 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        A jury convicted petitioner of nighttime burglary and sexual assault in the first degree. On
December 19, 1995, the circuit court sentenced petitioner to one to fifteen years on the burglary
charge and fifteen to thirty-five years on the sexual assault charge, “said sentences to run
consecutive.” The commitment order, which was entered January 24, 1996, listed the sentences in
reverse order, putting the sentence for the sexual assault first. The commitment order also provided
that the sentences were to be served consecutively.

        The Division of Corrections (“DOC”) apparently had been following the commitment
order listing the sentence for the sexual assault ahead of petitioner’s sentence for burglary. The
Parole Board subsequently asked the DOC to “flip-flop the terms [sentences] so that they would be
able to establish a correct parole eligibility date.” The DOC’s letter to petitioner also explained that
under the State Code, “consecutive terms are equal to an aggregate term” and that therefore, “we
set your records up to reflect you were serving an aggregate term of 16-50 years with an Effective
Sentence Date of October 15, 1994.”



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        On or about August 19, 2011, petitioner filed a petition for a writ of habeas corpus alleging
that his sentence for sexual assault comes first and he should be discharging that sentence in
February of 2012. Petitioner explained that the discharge of his sentence for sexual assault would
allow him a better chance at parole and would also change his classification within the prison
system that may allow opportunities such as transfer to a less secure facility.

       Applying Syllabus Points Six and Seven of State v. Eilola, 226 W.Va. 698, 704 S.E.2d
698 (2010), the circuit court denied petitioner’s petition. The circuit court explained as follows:

                       In other words, [petitioner] is effectively serving an
               interdeterminate sentence of not less than sixteen years nor more
               than fifty years. He is not serving two separate sentences for
               purposes of calculation of good time, parole eligibility or sentence
               discharge. In her letter of June 17, 2011 to [petitioner], [DOC]
               Records Manager, Diann E. Skiles, correctly informed [petitioner]
               that his two sentences were aggregated. The [DOC] correctly
               applied the principles articulated in Eilola.

       We review the circuit court’s denial of a habeas petition as follows:

               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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

        On appeal, petitioner argues that Eilola should not be applied to his case because, while his
commitment order was entered in 1996, Eilola was not decided until 2010. Petitioner asserts that
the circuit court’s ruling conflicts with oral statements the judge made at his sentencing. Petitioner
asserts that contrary to the circuit court’s finding, the sentencing order also contains language
supporting his contention that he served the first degree sexual assault sentence first. The
respondent warden argues that where there is a conflict, a written order controls over a court’s oral
statement. The respondent warden argues that “[where] the record is conflicting, the sentencing
order, not the commitment paper, controls,” quoting Fuller v. State, 914 So.2d 1230, 1232 (Miss.
Ct. App. 2005). After careful consideration of the parties’ arguments, this Court concludes that the
circuit court did not abuse its discretion in denying the petition.

        For the foregoing reasons, we find no error in the decision of the Circuit Court of Putnam
County and affirm its November 8, 2011, order denying petitioner’s petition for a writ of habeas
corpus.

                                                                                           Affirmed.
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ISSUED: March 29, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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