                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

State of West Virginia,
Plaintiff Below, Respondent                                                            FILED
                                                                                     May 23, 2016
vs) No. 15-0736 (Mercer County 10-F-355)                                             RORY L. PERRY II, CLERK
                                                                                  SUPREME COURT OF APPEALS
                                                                                       OF WEST VIRGINIA
Christopher A. Chapman,
Defendant Below, Petitioner


                              MEMORANDUM DECISION
        Pro se petitioner Christopher A. Chapman appeals the Circuit Court of Mercer County’s
July 1, 2015, order denying his motion for correction of sentence. The State, by counsel Zachary
Aaron Viglianco, filed a response. Petitioner filed a reply. On appeal, petitioner alleges that the
circuit court erred in denying his motion because he is entitled to additional credit for time
served.

        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.

       In June of 2010, petitioner participated in a series of armed robberies in Mercer County,
West Virginia. Two days later, petitioner was arrested and charged with brandishing a weapon,
conspiracy, and first-degree robbery. According to petitioner, bond was set but he was unable to
post the necessary amount and remained incarcerated during the pendency of the criminal
proceedings.1

        While petitioner remained in custody on the Mercer County charges, the State appeared
before the Circuit Court of Raleigh County and sought to revoke petitioner’s probation
previously imposed on charges unrelated to the crimes in Mercer County. Petitioner appeared for
a hearing on the probation revocation in October of 2010 and admitted that he violated the terms
of his probation. As such, Raleigh County revoked petitioner’s probation and imposed a term of
incarceration of one to ten years for his prior conviction of felony transfer of stolen property.
Raleigh County further granted petitioner credit for time served on several previous occasions,


       1
        The Court notes that petitioner has failed to provide any evidence that he was, in fact,
incarcerated for the entirety of the approximately 390 days from his arrest until his sentencing, as
he alleges.
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including approximately 128 days for time petitioner was incarcerated from June 21, 2010, until
October 27, 2010.

        In July of 2011, petitioner pled guilty in Mercer County to one count of first-degree
robbery. In exchange, the remaining charges were dismissed and petitioner was guaranteed a
thirty-year sentence. At sentencing, Mercer County ordered that the thirty-year sentence run
consecutively to the reinstated Raleigh County sentence. Moreover, Mercer County credited
petitioner with credit for 264 days of time served in regard to the first-degree robbery sentence.

       In August of 2015, petitioner filed a motion to amend his sentence in Mercer County.
According to petitioner, because he was continuously incarcerated from his arrest on June 20,
2010, until he pled guilty and was sentenced on July 18, 2011, he argued that he was entitled to
approximately 390 days of total credit for time served, instead of the 264 days he was awarded.
The circuit court denied this motion on July 1, 2015. It is from this order that petitioner appeals.

       We have previously established the following standard of review:

              “In reviewing the findings of fact and conclusions of law of a circuit court
       concerning an order on a motion made under Rule 35 of the West Virginia Rules
       of Criminal Procedure, we apply a three-pronged standard of review. We review
       the decision on the Rule 35 motion under an abuse of discretion standard; the
       underlying facts are reviewed under a clearly erroneous standard; and questions of
       law and interpretations of statutes and rules are subject to a de novo review.”
       Syllabus Point 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

Syl. Pt. 1, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). Upon our review, we find no
error in the circuit court denying petitioner’s motion for correction of sentence.

        On appeal, petitioner argues that Raleigh County’s decision to award him credit for 128
days of time served between June 21, 2010, and October 27, 2010, does not absolve Mercer
County of its duty to award him credit for the same period in accordance with constitutional
principles. According to petitioner, Raleigh County’s decision to award him credit for this period
amounted to discretion, while Mercer County had a constitutional duty to grant him credit for
time served for that same time period. As such, petitioner argues that Mercer County’s failure to
apply credit for this time period has now resulted in a four-month delay of his parole eligibility
on the Mercer County charge. The Court, however, does not agree, as petitioner’s argument
ignores our prior holdings regarding credit for time served and parole eligibility.

       This Court has previously held that

              “Consistent with our decision in Echard v. Holland, 177 W.Va. 138, 351
       S.E.2d 51 (1986), when a trial court awards credit for presentence incarceration to
       a defendant receiving consecutive sentences, the period of presentence
       incarceration must be credited against the aggregated maximum term of the
       consecutive sentences. To the extent that language in the decision of State v.
       Scott, 214 W.Va. 1, 585 S.E.2d 1 (2003) suggests a different allocation of

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       presentence credit to consecutive sentences, it is disapproved.” Syllabus Point 6,
       State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006).

Syl. Pt. 6, State v. Eilola, 226 W.Va. 698, 704 S.E.2d 698 (2010). This holding makes it clear
that when a defendant is sentenced to consecutive sentences, like petitioner herein, his or her
award of time-served credit is applied to the aggregated maximum term of the consecutive
sentences. That is to say that, even if petitioner were awarded the full 390 days of credit for time
served against his first-degree robbery conviction, as opposed to having the credit applied
separately to his two convictions, the net effect would be the same: 390 days of credit for time
served applied to his aggregated maximum term of the consecutive sentences.

       Further, as to his claim that the circuit court’s failure to award him the additional 128
days of time-served credit on his first-degree robbery sentence has the effect of delaying his
parole eligibility on that charge by approximately four months, the Court does not agree. We
have stated that

                [f]or purposes of calculating a defendant’s parole eligibility date, credit for
       time served by the defendant prior to being sentenced should be applied to the
       aggregated minimum term of all the consecutive sentences combined. To the
       extent that language in State v. Middleton, 220 W.Va. 89, 640 S.E.2d 152 (2006),
       mandates that the period of time served during presentence incarceration be
       credited only against the aggregated maximum term of the consecutive sentences,
       it is hereby overruled.

Eilola, 226 W.Va. at 700, 704 S.E.2d at 700, syl. pt. 7. Again, because the totality of petitioner’s
time-served credit is applied to the aggregated minimum term of all of his consecutive sentences
combined, it is inconsequential whether the 128 days petitioner raises on appeal is applied to the
first-degree robbery charge. The net effect, again, is the same: 390 days of credit for time served
applied to his aggregated maximum term of the consecutive sentences.

        On appeal, petitioner essentially seeks to have this Court apply approximately 128 days
of additional time-served credit to his sentence for first-degree robbery. However, he has already
received credit for time served for that period of incarceration on his felony transfer of stolen
property sentence: the period of June 21, 2010, through October 27, 2010. Simply put, this Court
has repeatedly held that criminal defendants are not entitled to have credit for time served during
one period applied to two separate sentences. See State v. Wears, 222 W.Va. 439, 445, 665
S.E.2d 273, 279 (2008) (denying defendant’s request for credit for time served between State’s
voluntary dismissal of an indictment and defendant’s reindictment because he remained in
custody serving time on unrelated charges); Echard v. Holland, 177 W.Va. 138, 144, 351 S.E.2d
51, 57 (1986) (incarcerated defendant not entitled to credit for time served for offense committed
after imposition of sentence on prior crime). Our review of the record shows that petitioner has
received the approximately 390 days of credit for time served that he sought, and he is not
entitled to have credit for time served from June 21, 2010, through October 27, 2010, awarded
twice. As such, we find no error.




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       For the foregoing reasons, the circuit court’s July 1, 2015, order denying petitioner’s
motion for correction of sentence is hereby affirmed.


                                                                                    Affirmed.

ISSUED: May 23, 2016

CONCURRED IN BY:

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




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