                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Robert D. Yost,                                                                   FILED
Petitioner, Petitioner Below                                                    January 25, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs.) No. 12-0030 (Wayne County 11-C-190)                                       OF WEST VIRGINIA


Marvin Plumley, Warden, Huttonsville Correctional Center,
Respondent, Respondent Below

                                MEMORANDUM DECISION

        Petitioner Robert D. Yost, pro se, appeals the December 14, 2011 order of the Circuit Court
of Wayne County denying his petition for a writ of habeas corpus in which the court ruled that his
claim, that he should have been given presentence jail credit for time served on charges in another
county, did not rise to the level of constitutional significance. The respondent warden1, by Laura
Young, his attorney, 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 Revised Rules of Appellate
Procedure.

        Petitioner was charged on June 24, 2003, in Cabell County, West Virginia, for an offense
arising in Cabell County.2 On October16, 2003, while petitioner was still being held on the Cabell
County charge, an arrest warrant was executed based on charges arising in Wayne County, West
Virginia.3 The Prosecuting Attorney of Wayne County previously had a hold on petitioner, since
June 26, 2003.


1
 Pursuant to Rule 41(c) of the West Virginia Revised of Appellate Procedure, the name of Marvin
Plumley is substituted for that of Adrian Hoke as Mr. Plumley is now Warden of Huttonsville
Correctional Center.
2
  According to petitioner, the charge in Cabell County was for transferring/receiving stolen
property.
3
  According to petitioner, the Cabell County charge and the Wayne County charges arose out of
the same incident.
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       Petitioner was transferred to Wayne County once he posted bond on the Cabell County
charge on November 6, 2003. Petitioner subsequently posted bond on the Wayne County charges
on November 25, 2003. Petitioner’s Wayne County bond was revoked on January 12, 2004, and he
was re-incarcerated. According to petitioner, the Cabell County charge was dismissed shortly after
his bond in Wayne County was revoked.

       Petitioner pled guilty to two counts of daytime burglary, and the State agreed to dismiss
two counts of grand larceny. The Circuit Court of Wayne County sentenced petitioner to one to ten
years on each count of daytime burglary, to be served consecutively. Petitioner received
eighty-eight days of credit for time served in Wayne County for the periods from November 6,
2003 to November 25, 2003, and from January 12, 2004 to March 19, 2004, when he was
sentenced.

        On July 9, 2010, petitioner filed a motion for correction of sentence alleging that he was
entitled to 137 days of credit for time served while being held in Cabell County on a detainer from
Wayne County. The circuit court denied the motion noting that it “is using the November 7, 2003,
date of arraignment[4] in Wayne County as the date when petitioner was incarcerated on Wayne
County charges alone.” The circuit court found that the original calculation of eighty-eight days of
credit for time served in Wayne County was correct.5

       On September 14, 2011, petitioner filed a petition for a writ of habeas corpus alleging that
he should have received a total of 246 days of credit for time served (eighty-eight days plus 158
additional days of credit).6 The circuit court determined that “[petitioner’s] Petition should be
dismissed without prejudice pursuant to [Rule] 4(c) [of the West Virginia Rules Governing
Post-Conviction Habeas Corpus Proceedings] . . . .” The circuit court ruled in pertinent part as
follows:



                 *       *      *

                 3.     That the Petitioner contends that he should have been given
                 presentence jail credit for time served on charges in another county.


4
    The record reflects that petitioner also received credit for time served on November 6, 2003.
5
 In its order denying the motion for correction of sentence, the circuit court noted that petitioner
had previously been on parole but that he was re-incarcerated on February 15, 2009, because of a
parole violation.
6
 On appeal, petitioner states that the number of days recited in his habeas petition was incorrect.
Petitioner indicates that the correct number of days is 221 (eighty-eight days plus 133 additional
days of credit).
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                4.      That this is not a constitutional issue and for the reasons
                stated above this matter is not cognizable for a Writ of Habeas
                Corpus.

                It is, therefore, ADJUDGED and ORDERED that the Petitioner’s
                Petition [for] Writ of Habeas Corpus is DENIED.

Petitioner now appeals the denial of his petition. On March 12, 2012, petitioner filed a motion for
sanctions in this Court alleging that counsel for the respondent warden made a misrepresentation
in the summary response. Counsel filed a response to the motion to which petitioner filed a reply.
Petitioner’s motion for sanctions remains pending.

                                      STANDARD OF REVIEW

       The standard of review for the circuit court’s denial of petitioner’s habeas petition is set forth in
Syllabus Point One, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006):

                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.

“A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not
involving constitutional violations will not be reviewed.” Syl. Pt. 4, State ex rel. McMannis v.
Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78
L.Ed.2d 112 (1983).

                                             DISCUSSION

        Petitioner argues it is well-settled that the denial of presentence jail credit rises to the level
of constitutional significance. Petitioner asserts that he was held in jail in Cabell County for 133
days under two distinct legal processes, the Cabell County warrant and the hold placed on him by
the Prosecuting Attorney of Wayne County. Petitioner asserts that if he had been convicted of the
Cabell County charge, the sentencing court would have discretion to order that he serve the
sentences concurrent with or consecutive to each other. However, because the Cabell County
charge was dismissed and petitioner was held in Cabell County under legal process from Wayne
County, petitioner argues that the Circuit Court of Wayne County lacked discretion to deny him
credit for time served for the 133 days he spent in jail in Cabell County.

        The respondent warden asserts that petitioner misreads the circuit court’s order denying his
habeas petition. According to the respondent warden, the circuit court stated that petitioner did not
assert a constitutional claim regarding credit for time served when he was not entitled to credit on
his Wayne County sentence for time spent in jail on a separate Cabell County charge. The
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respondent warden cites Echard v. Holland, 177 W.Va. 138, 351 S.E.2d 51 (1986),7 and asserts
that petitioner finds himself in an analogous situation. The respondent warden argues that
petitioner is not entitled to credit on his Wayne County sentence for the days he was held in jail in
Cabell County.

        In Echard, the appellant was arrested on a Ritchie County charge when he was already
awaiting transfer to the state penitentiary on a Wood County conviction. On the issue of whether
the appellant was entitled to presentence credit on the Ritchie County sentence, this Court
disagreed with both the circuit court and the records clerk at the penitentiary, and determined that
the appellant was not entitled to credit for any of the time because “[he] was already subject to
restraint [as a result of the Wood County sentence], and no additional restraint was imposed
because of the Ritchie County sentence.” 177 W.Va. at 144, 351 S.E.2d at 57. Similarly, in the
case at bar, petitioner was already subject to restraint because of the Cabell County charge, and no
additional restraint was imposed when the Prosecuting Attorney of Wayne County placed a hold
on him. Therefore, this Court finds that the circuit court did not err in ruling that petitioner’s claim
for additional presentence credit did not rise to the level of constitutional significance.8 This Court
concludes that the circuit court did not abuse its discretion in denying petitioner’s habeas petition.9

        For the foregoing reasons, we find no error in the decision of the Circuit Court of Wayne
County and affirm its December 5, 2011 order denying petitioner’s petition for a writ of habeas
corpus.

                                                                                             Affirmed.




7
  Echard v. Holland, 177 W.Va. 138, 144, 351 S.E.2d 51, 57 (1986), is contrary to petitioner’s
argument that constitutional safeguards are implicated in every case where there is an issue of
presentence credit for time served. See 177 W.Va. at 144, 351 S.E.2d at 57 (“[T]he considerations
which govern our decisions in this area, equal protection and double jeopardy, have no relevance
to our inquiry concerning presentence credit on the Ritchie County sentence.”).
8
  In his motion for sanctions, petitioner alleges that counsel for the respondent warden denied the
fact a hold was placed on petitioner while being held in jail in Cabell County. However, as counsel
explained in her response to the motion, she was not denying that the Prosecuting Attorney of
Wayne County placed a hold on petitioner; rather, counsel’s position was that the hold was of no
legal significance. In light of Echard v. Holland, 177 W.Va. 138, 351 S.E.2d 51 (1986), the
position taken by counsel was correct. Therefore, this Court concludes that petitioner’s motion for
sanctions should be and is hereby denied.
9
  Because the circuit court made its ruling pursuant to Rule 4(c) of the West Virginia Rules
Governing Post-Conviction Habeas Corpus Proceedings, petitioner is free to make a subsequent
claim for additional credit for time served as long as he has “adequate factual support” for the
claim.
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ISSUED: January 25, 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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