                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

State of West Virginia,                                                           FILED
Plaintiff Below, Respondent                                                       March 7, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-1497 (Mercer County 12-F-216 and 12-F-267)                          OF WEST VIRGINIA



Melvin Romeo,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Petitioner Melvin Romeo, by counsel Timothy R. Lupardus, appeals the August 20, 2012,
order of the Circuit Court of Mercer County sentencing him to two consecutive terms of one to
three years in the penitentiary following his guilty pleas to two felony offenses in unrelated
cases. Respondent State of West Virginia, by counsel Christopher S. Dodrill, filed a response.

        This 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                                 Facts and Procedural History

        Petitioner appeals the circuit court’s sentencing order following his guilty pleas to two
unrelated felonies. In circuit court case number 12-F-216, the Mercer County Grand Jury
indicted petitioner for the felony offenses of obtaining money by false pretenses (Counts 1 and 2)
and worthless check (Count 3). In circuit court case number 12-F-267, petitioner was charged by
a single-count information with attempt to commit the felony offense of obtaining money by
false pretenses.

        On August 20, 2012, with the advice of counsel, petitioner entered guilty pleas to the
offense of attempting to commit a felony, a lesser-included offense of the worthless check charge
alleged in Count 3 of the indictment in case number 12-F-216, and to attempt to commit a felony
(obtaining by false pretenses) as charged in the information in case number 12-F-267.1

       Specifically, Count 3 of the 12-F-216 Indictment alleged that

       1
         Petitioner entered the guilty pleas pursuant to an August 15, 2012, plea bargain
agreement proposed by his then-counsel, agreed to by the prosecuting attorney, and signed by
petitioner on August 18, 2012.
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       [O]n or about the 22nd day of October 2007, in the County of Mercer, State of
       West Virginia, MELVIN ROMEO committed the offense of ‘Worthless Check’
       by unlawfully and feloniously delivering check no. 1126, drawn on the account of
       Melvin L. Romeo, in the amount of $1,000.00, on Wood Forest Bank, to Melvin
       Cox and attempting to obtain real estate in return, when he knew at the time of
       delivery of said check that he did not have sufficient funds on deposit in the
       Wood Forest Bank, with which to pay said check, against the peace and dignity of
       the State.

        The attempt to commit a felony charge in Information 12-F-267 alleged that petitioner
attempted to obtain money by false pretenses on December 14, 2008. The circuit court accepted
petitioner’s guilty plea to the two charges and sentenced him to two consecutive terms of one to
three years in the penitentiary. He received 173 days of credit for time served. Importantly,
petitioner never moved to dismiss either charge; he did not object in any respect at the August
20, 2012, plea and sentencing hearing; and, he did not enter his guilty plea conditionally so as to
preserve any issue for appeal to this Court.

        On September 10, 2012, petitioner, pro se, filed a motion in the circuit court requesting
additional credit for time he served in the penitentiary in Virginia on a different charge.
Petitioner contended that on May 10, 2011, while serving his Virginia sentence, he filed a
request pursuant to the Interstate Agreement on Detainers with respect to his pending charges in
West Virginia. Petitioner requested credit from May 10, 2011, to September 14, 2011, the date
on which the Mercer County Prosecuting Attorney elected not to have petitioner extradited on
the West Virginia charges. By order entered on September 24, 2012, the circuit court denied
petitioner’s motion for additional credit for time served in Virginia. In its ruling, the circuit court
stated that “[t]here is no provision under the law which entitles the Defendant to time served
while incarcerated in another state for other charges, despite the detainer lodged against him
from this jurisdiction.”

        Thereafter, on October 22, 2012, petitioner, pro se, filed a petition for writ of mandamus
with this Court seeking to compel the circuit court to partially vacate his August 20, 2012,
sentence following his guilty plea. Petitioner alleged that the State breached a prior plea
agreement by indicting him on the worthless check charge (Count 3 of 12-F-216 Indictment). In
support of his petition, petitioner alleged that on November 27, 2008, while he was on probation
in West Virginia for another charge, his probation officer filed a petition to revoke his probation
alleging, among other things, that “[o]n or about October 18, 2007, [petitioner] entered into an
agreement to purchase parcels of property from a Melvin Cox for $1,000. [Petitioner] issued Mr.
Cox a check from his personal account in the amount of $1,000, which was returned for
insufficient funds.” On January 17, 2008, petitioner entered into a plea agreement whereby the
State agreed not to prosecute petitioner “for any acts now known by the State or alleged in the
instant revocation petition[.]” Petitioner contended in his petition for writ of mandamus that the
conduct for which he pled guilty and was sentenced on August 20, 2012, is the same conduct that
the State agreed not to prosecute in the 2008 plea agreement, despite the fact that Count 3 of the
12-F-216 Indictment refers to conduct occurring on October 22, 2007, not October 18, 2007.



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       By letter dated November 2, 2012, this Court informed petitioner that it declined to
docket his petition for writ of mandamus as the issues he raised therein are more appropriate for
consideration on appeal. This appeal followed.

                                             Discussion

        Petitioner raises three assignments of error in his appeal. First, he argues that, with
respect to case number 12-F-216, the circuit court erred in permitting the State to prosecute and
eventually accept a plea to a charge that the State had promised would not be prosecuted
pursuant to a prior plea agreement in 2008. Petitioner’s argument must fail because the worthless
check charge set forth in Count 3 of the 12-F-216 Indictment is not the same offense that the
State agreed not to prosecute in the prior plea agreement. Although both offenses allege that
petitioner wrote a worthless check, Count 3 of the 12-F-216 Indictment involves a check written
on October 22, 2007; however, the offense referenced in the 2008 plea agreement occurred on
October 18, 2007.

       In his second assignment of error, petitioner argues that, with respect to case number 12-
F-267, the circuit court erred in allowing the prosecution and eventual entry of a guilty plea to
the charge in violation of the Interstate Agreement on Detainers Act (“IADA”), W.Va. Code §
62-14-1, et seq., because he requested disposition and the State did not act so as to dispose of the
case within the 180-day rule set forth therein. Article III of the IADA, states, in pertinent part, as
follows:

       (a) Whenever a person has entered upon a term of imprisonment in a penal or
       correctional institution of a party state, and whenever during the continuance of
       the term of imprisonment there is pending in any other party state any untried
       indictment, information or complaint on the basis of which a detainer has been
       lodged against the prisoner, he shall be brought to trial within one hundred eighty
       days after he shall have caused to be delivered to the prosecuting officer and the
       appropriate court of the prosecuting officer's jurisdiction written notice of the
       place of his imprisonment and his request for a final disposition to be made of the
       indictment, information or complaint: Provided, That for good cause shown in
       open court, the prisoner or his counsel being present, the court having jurisdiction
       of the matter may grant any necessary or reasonable continuance. The request of
       the prisoner shall be accompanied by a certificate of the appropriate official
       having custody of the prisoner, stating the term of commitment under which the
       prisoner is being held, the time already served, the time remaining to be served on
       the sentence, the amount of good time earned, the time of parole eligibility of the
       prisoner, and any decisions of the state parole agency relating to the prisoner.

       ***

       (d) Any request for final disposition made by a prisoner pursuant to paragraph (a)
       hereof shall operate as a request for final disposition of all untried indictments,
       informations or complaints on the basis of which detainers have been lodged
       against the prisoner from the state to whose prosecuting official the request for

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       final disposition is specifically directed. The warden, superintendent or other
       official having custody of the prisoner shall forthwith notify all appropriate
       prosecuting officers and courts in the several jurisdictions within the state to
       which the prisoner's request for final disposition is being sent of the proceeding
       being initiated by the prisoner. Any notification sent pursuant to this paragraph
       shall be accompanied by copies of the prisoner's written notice, request, and the
       certificate. If trial is not had on any indictment, information or complaint
       contemplated hereby prior to the return of the prisoner to the original place of
       imprisonment, such indictment, information or complaint shall not be of any
       further force or effect, and the court shall enter an order dismissing the same with
       prejudice.

        Petitioner asserts that his disposition request to the Mercer County Prosecuting Attorney
during his Virginia incarceration triggered the application of the 180-day rule. See State v.
Seenes, 212 W.Va. 353, 572 S.E.2d 876 (2002). Petitioner, however, acknowledges that this
Court has held that a defendant’s voluntary entry of a guilty plea waives all rights conferred
under the IADA, including dismissal of charges upon a violation of its provisions. See Pethel v.
McBride, 219 W.Va. 578, 638 S.E.2d 727 (2006). Petitioner urges this Court to distinguish
Pethel from the present case because petitioner was charged by information and entered his
guilty plea the same day. Therefore, he argues that he was not in a position to knowingly waive
his rights under the IADA.

        Petitioner’s argument fails because there was no violation of the 180-day rule in this case.
“The 180-day time period set forth in [the IADA] does not commence until the prisoner’s request
for final disposition of the charges against him has actually been delivered to the court and to the
prosecuting officer of the jurisdiction that lodged the detainer against him.” Syl. Pt. 2, State v.
Somerlot, 209 W.Va. 125, 544 S.E.2d 52 (2000). In the present case, petitioner’s request for final
disposition was not received by the Mercer County Circuit Court until May 23, 2011. The 180-
day rule was triggered at that point. Thereafter, on September 14, 2011, the Mercer County
Prosecuting Attorney faxed a letter to the Virginia Department of Corrections stating that he had
“elected not to extradite [petitioner] to our jurisdiction” and asked the Virginia prison to “please
remove any detainer which may have been lodged against [petitioner] by Mercer County, West
Virginia.”2 Petitioner was never extradited to West Virginia, and the record shows that he was
released from Virginia custody on October 5, 2011. Simply put, under these facts, the Mercer
County Prosecuting Attorney was not obligated to comply with the 180-day rule. Nevertheless,
petitioner’s argument is foreclosed by our holding in Pethel, supra.

        Lastly, with respect to case number 12-F-267, petitioner argues that equity required the
circuit court to credit him for the time he served in Virginia between the delivery of his request
for disposition and his release from incarceration in Virginia. We must reject petitioner’s
argument. Defendants are only entitled to receive credit for the time served on offenses for which
they were convicted. See Echard v. Holland, 177 W.Va. 138, 144, 351 S.E.2d 51, 57 (1986). The

       2
         The prosecuting attorney’s letter is dated January 5, 2010, which must be a
typographical error as it is in response to a request made in 2011. The letter contains a notation at
the top of the page indicating it was faxed on September 14, 2011.
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time petitioner spent in prison in Virginia was related to offenses other than those to which he
pled guilty in West Virginia on August 20, 2012. There is simply no basis on which petitioner is
entitled to credit for the time spent in Virginia prison.

       For the foregoing reasons, we affirm.

                                                                                      Affirmed.

ISSUED: March 7, 2014

CONCURRED IN BY:

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




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