           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2013 Term
                                      ____________
                                                                      FILED
                                       No. 11-1352                 April 11, 2013
                                      ____________                 released at 3:00 p.m.
                                                                   RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                                                     OF WEST VIRGINIA

                                CARLOS A. LEEPER-EL,
                                Petitioner Below, Petitioner

                                             v.

                           ADRIAN HOKE, Warden,

                         Huttonsville Correctional Center,

                          Respondent Below, Respondent

              _________________________________________________

                   Appeal from the Circuit Court of Ohio County

                      The Honorable Arthur M. Recht, Judge

                             Case Number 11-C-188

                                  DISMISSED

           _____________________________________________________

                                Submitted: March 26, 2013
                                    Filed: April 11, 2013


Christopher J. Prezioso, Esq.                     Patrick Morrisey, Esq.

Luttrell & Prezioso, PLLC                         Attorney General

Charles Town, West Virginia                       Marland L. Turner, Esq.

Counsel for Petitioner                            Assistant Attorney General

                                                  Charleston, West Virginia
                                                  Counsel for Respondent


The Opinion of the Court was delivered PER CURIAM.
                                    SYLLABUS



              “Three factors to be considered in deciding whether to address technically moot

issues are as follows: first, the court will determine whether sufficient collateral

consequences will result from determination of the questions presented so as to justify relief;

second, while technically moot in the immediate context, questions of great public interest

may nevertheless be addressed for the future guidance of the bar and of the public; and third,

issues which may be repeatedly presented to the trial court, yet escape review at the appellate

level because of their fleeting and determinate nature, may appropriately be decided.”

Syllabus Point 1, Israel by Israel v. West Virginia Secondary Schools Activities Commission,

182 W.Va. 454, 388 S.E.2d 480 (1989).
Per Curiam:



              Petitioner Carlos A. Leeper-El (“Mr. Leeper-El”) filed a petition for a writ of

habeas corpus with the Circuit Court of Ohio County arguing that his plea agreement was

defective because it contained a promise – that his state and federal sentences would be run

concurrently – which was not fulfilled or that was unfulfillable. Mr. Leeper-El requested that

he be discharged from state custody so that he could immediately begin serving his federal

prison sentence. The circuit court denied this petition on September 8, 2011. Mr. Leeper-El

thereafter filed the present appeal arguing that the circuit court erred in denying his writ

because 1) he received ineffective assistance of counsel and 2) his plea agreement was based

on a promise which was not fulfilled or that was unfulfillable.

              While the instant appeal was pending, Mr. Leeper-El was paroled from the

West Virginia Department of Corrections and he is no longer in the custody of the State of

West Virginia. Mr. Leeper-El is currently in federal custody, serving his federal criminal

sentence at a federal prison in Philadelphia, Pennsylvania. Shortly before oral argument in

this matter, this Court was informed that the federal authorities credited Mr. Leeper-El for

all of the time he served in state custody. Thus, his state and federal sentences were

effectively served concurrent to each other. Because Mr. Leeper-El is no longer in the




                                              1

custody of the State of West Virginia and has obtained the relief he sought in his habeas

petition, we find that the instant appeal is moot.1



                                  I. Facts & Background

              On April 8, 2005, Mr. Leeper-El was granted supervised release from federal

custody.2 Approximately four months after being released from federal custody, Mr. Leeper-

El was charged with first degree robbery in Ohio County, West Virginia. He subsequently

entered a plea agreement with the State, agreeing to plead guilty to the lesser included

offense of second degree robbery.

              In exchange for this guilty plea, the State agreed to recommend that “any

sentence imposed by the [Circuit] Court run concurrent to any Federal sentence imposed by

the United States District Court for violation of his supervised release.” The plea agreement

informed Mr. Leeper-El that “any recommendation” made by the State to the circuit court “is




       1
          While this case was pending before the Court, Patrick Morrisey was sworn into
office as Attorney General for the State of West Virginia, replacing former Attorney General
Darrell V. McGraw, Jr.
       2
         The appendix record contains a brief description of Mr. Leeper-El’s underlying
criminal offense that led to his federal incarceration. Based on the limited information in the
record, it appears that Mr. Leeper-El was convicted of armed bank robbery in 1982 and
received a twenty-five year federal prison sentence.

                                              2

non-binding upon the Court and the sentence imposed by the Court is in the sole and

unfettered discretion of the Court.”3

              On January 6, 2006, the circuit court held a sentencing hearing. During this

hearing, counsel for Mr. Leeper-El was aware that the promise of a concurrent state and

federal sentence was dependent on whether the federal authorities were going to institute

supervised release revocation proceedings against Mr. Leeper-El.4 Mr. Leeper-El’s lawyer

informed the circuit court that

              the prosecutor agreed also to run this [sentence] concurrent with
              his federal time. We have since found out that the feds didn’t
              feel a necessity to do anything, obviously we know why. So
              they may pick it up or they may not pick it up, even after the
              sentencing.

       3
        The plea agreement also included the State’s promise not to file a recidivist
information against Mr. Leeper-El.
       4
       28 C.F.R. § 2.47 [1996] sets forth the options that are available to federal authorities
when a person on supervised release begins serving a new state sentence. It says,

              (c) If the prisoner is serving a new state or local sentence, the
              Regional Commissioner, following a dispositional record review
              may:
              (1) Withdraw the detainer and order reinstatement of the parolee
              to supervision upon release from custody, or close the case if the
              expiration date has passed.
              (2) Order a revocation hearing to be conducted by a hearing
              examiner or an official designated by the Regional
              Commissioner at the institution in which the parolee is confined.
              (3) Let the detainer stand and order further review at an
              appropriate time. If the warrant is not withdrawn and no
              revocation hearing is conducted while the prisoner is in state or
              local custody, an institutional revocation hearing shall be
              conducted after the prisoner's return to federal custody.

                                              3

Mr. Leeper-El’s lawyer further demonstrated his awareness that the promise of concurrency

was dependent on the federal authorities when he asked the circuit court to allow Mr. Leeper-

El to have a hearing pursuant to Rule 35(b) of the West Virginia Rules of Criminal

Procedure5 “depending on what the feds do.” The circuit judge stated that he would take a

Rule 35(b) motion under advisement if the circumstances giving rise to such a motion

occurred.

                The circuit judge acknowledged that the plea agreement called for the state

sentence to run concurrent to the federal sentence. However, the circuit judge told Mr.

Leeper-El, “I would just caution you not to be relying on the fact that there would be a

material change in your sentence.” The circuit judge made it clear that the concurrency of

the state and federal sentences was contingent on the actions taken by the federal authorities.

The circuit judge stated, “To the extent that it’s possible, you are to put in the order that the

sentence should be served in the federal penitentiary system, but I do not have the authority


       5
           Rule 35(b) of the West Virginia Rules of Criminal Procedure states,
                        (b) Reduction of Sentence. – A motion to reduce a
                sentence may be made, or the court may reduce a sentence
                without motion within 120 days after the sentence is imposed or
                probation is revoked, or within 120 days after the entry of a
                mandate by the supreme court of appeals upon affirmance of a
                judgment of a conviction or probation revocation or the entry of
                an order by the supreme court of appeals dismissing or rejecting
                a petition for appeal of a judgment of a conviction or probation
                revocation. The court shall determine the motion within a
                reasonable time. Changing a sentence from a sentence of
                incarceration to a grant of probation shall constitute a
                permissible reduction of sentence under this subdivision.

                                               4

to order them [the federal government] to take it.” The circuit court thereafter accepted the

plea agreement and entered a commitment order sentencing Mr. Leeper-El as follows,

                     It is adjudged that the Defendant is hereby committed to
              the custody of the commissioner of the West Virginia Division
              of Corrections, or his authorized representative for
              imprisonment for a period of 5-18 years WVDOC to run
              concurrent with federal sentence.

              Mr. Leeper-El filed a pro se petition for a writ of habeas corpus on June 16,

2011. Mr. Leeper-El argued that his guilty plea to second-degree robbery “was unlawfully

induced by a promise that he would serve his sentence while serving an anticipated federal

sentence for violation of supervised release from federal custody.” His habeas corpus

petition requested that the circuit court grant him an unconditional discharge from state

custody so that he could begin serving his federal sentence.6


       6
        Mr. Leeper-El filed his habeas corpus petition pursuant to W.Va. Code § 53-4A-1(a),
which states

                     (a) 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
              release from such illegal imprisonment, correction of the
                                                                                   (continued...)

                                              5

                 The circuit court denied Mr. Leeper-El’s habeas corpus petition on September

8, 2011. The circuit court found that the terms of the plea agreement did not include “any

firm promise as to the outcome of his sentencing.” Instead, the agreement provides that the

State would recommend that his state sentence be served concurrent to his federal supervised

release violation. The circuit court also found that the recommendation of concurrency was



       6
           (...continued)
                  sentence, the setting aside of the plea, conviction and sentence,
                  or other relief, if and only if such contention or contentions and
                  the grounds in fact or law relied upon in support thereof have
                  not been previously and finally adjudicated or waived in the
                  proceedings which resulted in the conviction and sentence, or in
                  a proceeding or proceedings on a prior petition or petitions filed
                  under the provisions of this article, or in any other proceeding or
                  proceedings which the petitioner has instituted to secure relief
                  from such conviction or sentence. Any such petition shall be
                  filed with the clerk of the supreme court of appeals, or the clerk
                  of any circuit court, said supreme court of appeals and all circuit
                  courts of this State having been granted original jurisdiction in
                  habeas corpus cases by the Constitution of this State, or with the
                  clerk of any court of record of limited jurisdiction having
                  criminal jurisdiction in this State. Jurisdiction is hereby
                  conferred upon each and every such court of record of limited
                  jurisdiction having criminal jurisdiction (hereinafter for
                  convenience of reference referred to simply as a “statutory
                  court”) to refuse or grant writs of habeas corpus ad
                  subjiciendum in accordance with the provisions of this article
                  and to hear and determine any contention or contentions and to
                  pass upon all grounds in fact or law relied upon in support
                  thereof in any proceeding on any such writ made returnable
                  thereto in accordance with the provisions of this article. All
                  proceedings in accordance with this article shall be civil in
                  character and shall under no circumstances be regarded as
                  criminal proceedings or a criminal case.

                                                  6

                made contingent on the bringing of federal parole violation
                proceedings in the United States District Court. Were federal
                parole officials to bring violation proceedings, and were a
                federal sentence imposed, the sentencing order . . . . would
                permit Petitioner to continue serving his state sentence while in
                federal custody.

                After the circuit court denied his habeas corpus petition, Mr. Leeper-El filed

the instant appeal. While the instant appeal was pending, Mr. Leeper-El was paroled from

the West Virginia Department of Corrections and he is no longer in the custody of the State

of West Virginia. Mr. Leeper-El is currently in federal custody serving a federal criminal

sentence. The terms of Mr. Leeper-El’s federal sentence are set forth in his Federal

Expedited Revocation document. This revocation document states that Mr. Leeper-El was

sentenced to 90 months for violating his supervised release agreement. The revocation

document also states that Mr. Leeper-El received federal credit for all 85 months he spent

in state custody while serving his state sentence. Because he received credit for all 85

months he spent in state custody, Mr. Leeper-El only has to serve five months in federal

custody.7 Thus, Mr. Leeper-El’s state and federal sentences were effectively run concurrent

to one another.




       7
           Mr. Leeper-El’s estimated release date from federal custody is April 13, 2013.

                                               7

                                II. Standard of Review &

                                         Analysis


              We begin by addressing whether the instant appeal is moot. Mr. Leeper-El’s

habeas petition requested that he be discharged from state custody so that he could begin

serving his federal sentence for violating his federal supervised release. Mr. Leeper-El has

been paroled from state custody. He is currently serving his federal sentence. Because Mr.

Leeper-El has received the relief he sought in his habeas petition, the State argues that the

present appeal is moot. We agree.

              In Syllabus Point 1 of Israel by Israel v. West Virginia Secondary Schools

Activities Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989), this Court set forth a three-

factor test to be considered in deciding whether to address technically moot issues:

                      Three factors to be considered in deciding whether to
              address technically moot issues are as follows: first, the court
              will determine whether sufficient collateral consequences will
              result from determination of the questions presented so as to
              justify relief; second, while technically moot in the immediate
              context, questions of great public interest may nevertheless be
              addressed for the future guidance of the bar and of the public;
              and third, issues which may be repeatedly presented to the trial
              court, yet escape review at the appellate level because of their
              fleeting and determinate nature, may appropriately be decided.

This Court also discussed when it will consider a technically moot issue in State ex rel.

Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 156, 697 S.E.2d 740, 748 (2010), stating

that

              although changes may occur during the course of litigation that
              typically would render a case moot, the particular circumstances

                                             8

              attending such changes may preserve the merits of the case so as
              to save it from mootness and to permit its consideration by the
              presiding tribunal. See Hart v. National Coll. Athletic Ass’n, 209
              W.Va. 543, 548, 550 S.E.2d 79, 84 (2001) (per curiam) (“[T]he
              simple fact of apparent mootness, in and of itself, does not
              automatically preclude our consideration of [a] matter.”). Thus,
              a case may survive mootness upon a change of circumstances.
              “When collateral effects of a dispute remain and continue to
              affect the relationship of litigants, the case is not moot.”
              Firefighters Local [Union No. 1784 v. Stotts], 467 U.S. [561],
              at 585, 104 S.Ct. [2576], at 2591, 81 L.Ed.2d 483 (O'Connor, J.,
              concurring) (footnote and citations omitted). A case also may
              survive mootness despite a change in party status. “As long as
              the parties have a concrete interest in the outcome of the
              litigation, the case is not moot [.]” Firefighters Local, 467 U.S.
              at 571, 104 S.Ct. at 2584 (citation omitted). Finally, “[a] case is
              not rendered moot even though a party to the litigation has had
              a change in status such that he no longer has a legally cognizable
              interest in the litigation or the issues have lost their adversarial
              vitality, if such issues are capable of repetition and yet will
              evade review.” Syl. pt. 1, State ex rel. M.C.H. v. Kinder, 173
              W.Va. 387, 317 S.E.2d 150 (1984).

              In the case sub judice, we find that the Israel factors weigh in favor of the

State. Mr. Leeper-El received the relief he sought in his habeas petition: he has been released

from state custody. Additionally, Mr. Leeper-El received federal credit for all 85 months he

spent in state custody. Because his state and federal sentences were effectively run

concurrent to each other, we find that the underlying error he complained of is moot.

Further, we find that Mr. Leeper-El has failed to demonstrate that this case contains an issue

which may be repeatedly presented to the trial court, yet escapes review at the appellate level.

Our law on a plea agreement that contains a promise which was not fulfilled or that was

unfulfillable is clearly set forth in State ex rel. Morris v. Mohn, 165 W.Va. 145, 267 S.E.2d

                                               9

443 (1980), and we find nothing in the instant case that compels us to clarify our holding

therein.8

                 Accordingly, we need not and will not exercise our discretion to decide the

moot issue raised in this appeal.



                                        IV. Conclusion

                 Having established that the matter is moot, this appeal is dismissed from the

docket of this Court.

                                                                            Dismissed as moot.



       8
            Syllabus Point 1 of Morris states

                 [a] recognized corollary to the principle that a guilty plea must
                 be shown to have been intelligently and voluntarily entered is
                 the rule that if the plea is based on a plea bargain which is not
                 fulfilled or is unfulfillable, then the guilty plea cannot stand.

               In Morris, a defendant filed a petition for a writ of habeas corpus after the State
and circuit court promised him that his state and federal sentences would run concurrently
even though his federal parole revocation proceedings were not imminent. This Court
granted the defendant’s writ in Morris because the promise was legally impossible to perform
as neither the State nor the circuit court had control over the defendant’s federal parole
revocation proceedings. In the present case, Mr. Leeper-El was not promised that his state
sentence would run concurrent to his federal sentence. Instead, the circuit court clearly stated
during the sentencing hearing that it had no control over the actions of the federal authorities.
The State and circuit court only promised Mr. Leeper-El that in the event that the federal
authorities did institute supervised release revocation proceedings while he was serving his
state sentence, the circuit court would allow him to be transferred to federal custody and to
serve his state sentence concurrent to his federal sentence. Thus, the present case is clearly
distinguishable from Morris.

                                                10
