                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                 FILED
State of West Virginia, Plaintiff Below,                                        October 1, 2013
Respondent                                                                  RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
vs) No. 13-0149 (Ohio County 01-F-66)

Mitchell Coles, Defendant Below,
Petitioner


                                 MEMORANDUM DECISION

       Petitioner Mitchell Coles’ pro se appeal arises from the Circuit Court of Ohio County’s
January 29, 2013 order denying his motion for correction of sentence. The State, by counsel
Laura Young, filed a response. On appeal, petitioner alleges that the circuit court erred in denying
his motion for correction of sentence made pursuant to Rule 35(a) of the West Virginia Rules of
Criminal Procedure because Ohio County was an improper venue for his prosecution, his
sentence violates the proscription against double jeopardy, and the circuit court failed to address
the merits of his motion.

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

        As a result of unrelated criminal convictions in both Marion and Monongalia County,
petitioner was sentenced to an aggregate term of incarceration of three to thirty years in 1999.
While incarcerated at Huttonsville Correctional Center, petitioner was involved in a fraudulent
scheme to obtain college correspondence materials. Based upon these allegations, the Department
of Corrections (“DOC”) charged petitioner with eighteen Class I violations, each predicated upon
the individual fraudulent checks petitioner mailed to the college correspondence programs. In
September of 2000, petitioner was afforded a disciplinary hearing, after which he was found
guilty of all eighteen violations. As a result, petitioner received nine months punitive segregation,
a loss of all privileges, and two years and two months loss of good time credit.

        Thereafter, petitioner was indicted in Ohio County during the May 2001 term of court of
one count of fraudulent schemes and one count of conspiracy based upon his actions while
incarcerated. On July 31, 2001, after entering a guilty plea to one count of fraudulent schemes,
petitioner was sentenced to a term of incarceration of one to ten years, said sentence to run
consecutively to those he was already serving. Petitioner thereafter sought reconsideration of the

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sentence by filing several motions pursuant to Rule 35(b) of the West Virginia Rules of Criminal
Procedure. These motions were all denied. On February 21, 2012, petitioner sought correction of
his allegedly illegal sentence by filing a motion pursuant to Rule 35(a) of the West Virginia Rules
of Criminal Procedure. Petitioner argued that Ohio County was an improper venue for his
prosecution and that his punishment by the DOC and his subsequent criminal sentence for the
same conduct constituted a violation of his protection against double jeopardy. This motion was
denied by order entered on January 29, 2013, and it is from this order that petitioner appeals.

       We have previously held as follows:

       “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, the Court
finds no error in the denial of petitioner’s motion for correction of sentence. First, it is clear that
petitioner’s protection against double jeopardy was not violated when he was disciplined by the
DOC and criminally prosecuted for the same acts. While petitioner attempts to differentiate his
case from our prior holdings by arguing that the DOC sanctions constitute punishment and
therefore prevent punitive criminal prosecution, we disagree. This Court has previously held that
“[p]rison disciplinary action against an inmate, for conduct for which he or she was criminally
prosecuted, does not violate the Double Jeopardy Clauses of Article III, Section 5 of the West
Virginia Constitution and the Fifth Amendment to the United States Constitution.” Syl. Pt. 4,
State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).

       Further, the Court does not find petitioner’s reliance on U.S. v. Halper, 490 U.S. 435, 109
S.Ct. 1892 (1989), persuasive. In that case, the United States Supreme Court found that the
government was prevented from imposing a civil penalty of more than $130,000 when the
defendant’s actions only resulted in a loss of $585 and he had previously been convicted
criminally for the same actions. Id. at 452, 109 S.Ct. at 1904. Halper clearly presents a different
scenario than the instant matter, wherein petitioner was convicted criminally and also received
sanctions from the DOC for his violation of the institution’s rules. West Virginia Code § 28-5-27
provides for the accumulation of good time credit, and subsection (f) grants the Commissioner of
Corrections the power to promulgate rules that, if broken, will result in a loss of good time credit.
That subsection also provides wardens or superintendents discretion in restoring any lost good
time credit, with the commissioner’s approval.

       We have previously held that “. . . the accumulation of good time is dependent upon the
prisoner’s behavior or ‘good conduct’ while incarcerated.” State ex rel. Gordon v. McBride, 218
W.Va. 745, 749, 630 S.E.2d 55, 59 (2006) (citing State ex rel. Valentine v. Watkins, 208 W.Va.
26, 32, 537 S.E.2d 647, 653 (2000)). Further, “[i]n addition to encouraging rehabilitation, it

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rewards the obedient.” Id. (citing State ex rel. Valentine v. Watkins, 208 W.Va. 26, 32, 537 S.E.2d
647, 653 (2000); Woodring v. Whyte, 161 W.Va. 262, 275, 242 S.E.2d 238, 246 (1978)). As such,
it is clear that the warden at Huttonsville Correctional Center had the discretion to revoke
petitioner’s good time credit for his conduct while incarcerated, and the same does not prevent
later criminal prosecution for the same acts.

        Second, the Court finds no merit in petitioner’s argument that Ohio County was an
improper venue for his criminal proceedings. West Virginia Code § 62-8-3 states that “[a]ll
criminal proceedings against convicts in the custody of the Commissioner of Corrections shall be
in the circuit court in the county where the crime is committed.” While petitioner argues that he
should have been tried in Randolph County because he was incarcerated there during the
commission of the underlying crimes, the Court finds no merit in this argument. West Virginia
Code § 61-11-12 states that “[w]hen an offense is committed partly in one county and partly in
one or more other counties within this State, it may be alleged that the offense was committed and
the accused may be tried in any one county in which any substantial element of the offense
occurred.” The record shows that one of petitioner’s co-conspirators in the fraudulent scheme was
a resident of Ohio County and used her telephone to facilitate the scheme. As such, it is clear that
the crimes with which petitioner was charged took place in more than one county and that venue
in Ohio County was proper.

        Finally, petitioner has provided no authority that requires the circuit court to make specific
findings of fact or conclusions of law as to his specific claims in the order denying his motion. As
such, there is no actionable error on the circuit court’s part for an alleged failure to include such
findings and the Court finds no merit in petitioner’s allegation that this Court is prevented from
meaningful appellate review because of the circuit court’s order. We further find no merit in
petitioner’s argument that the order evidences a failure by the circuit court to address the merits of
petitioner’s motion.

       For the foregoing reasons, the circuit court’s January 29, 2013 order denying petitioner’s
motion for correction of sentence is hereby affirmed.


                                                                                           Affirmed.

ISSUED: October 1, 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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