                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



                                                                                 FILED
State of West Virginia,

Plaintiff Below, Respondent                                                 November 18, 2016

                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 16-0032 (Brooke County 13-F-72 and 14-F-45)                               OF WEST VIRGINIA


Adam Barnhart,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
       Petitioner Adam Barnhart, pro se, appeals the January 5, 2016, order of the Circuit Court of
Brooke County denying his motion for correction of illegal sentence. Respondent State of West
Virginia, by counsel Julie A. Warren, filed a summary response in support of the circuit court’s
order.

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

        In Case No. 13-F-72, petitioner was indicted for murder in the first degree. In Case No.
14-F-45, petitioner was charged by information of two counts of wanton endangerment with a
firearm. The parties agreed to resolve both cases through a plea bargain. The State agreed to
dismiss the indictment for first degree murder in No. 13-F-72 in exchange for petitioner agreeing
to plead guilty to the lesser included offense of murder in the second degree. Petitioner agreed to
waive his right to be indicted in No. 14-F-45 and to proceed in that case on the information. The
parties agreed that petitioner would be sentenced to a definite term of forty years of incarceration
for second degree murder. With regard to the two counts of wanton endangerment with a firearm,
the parties agreed that petitioner would be sentenced to two definite terms of five years of
incarceration. The parties further agreed that petitioner would serve his sentences consecutively




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for an aggregate term of fifty years of incarceration. Finally, petitioner agreed to waive “the right
to any parole [eligibility] on the of the above enumerated sentences[.]”1

         Prior to accepting petitioner’s guilty pleas for second degree murder and two counts of
wanton endangerment with a firearm, the circuit court “question[ed] him” regarding the waiver of
“his constitutional, statutory, and procedural rights in this matter.”2 The circuit court noted the
“specific condition of the plea agreement” that required petitioner to waive his right to parole
eligibility. The circuit court found that petitioner understood his constitutional, statutory, and
procedural rights, “indicated that he discussed the same with his counsel, . . . and . . . wished to
waive those rights and proceed with the plea agreement[.]” Accordingly, the circuit court found
that petitioner “knowingly, intelligently, and voluntarily waived” his constitutional, statutory, and
procedural rights.

       The circuit court further found that petitioner understood the plea agreement’s “terms and
conditions” and that petitioner “knowingly, intelligently, and voluntarily” entered his guilty pleas.
Accordingly, the circuit court accepted petitioner’s pleas, adjudged him guilty, and sentenced him
consistent with the parties’ agreement.

         On October 13, 2015, petitioner filed motion for correction of illegal sentence pursuant to
Rule 35(a) of the West Virginia Rules of Criminal Procedure. Petitioner asserted that his aggregate
sentence was illegal because the parties’ agreement rendered him ineligible for parole in violation
of West Virginia Code § 62-12-13(b)(1)(A), which provides that a defendant “is eligible for parole
if he or she: (1)(A) . . . has served one fourth of his or her definite term sentence.” By order entered
January 5, 2016, the circuit court acknowledged that the parties did not have the authority to enter
into—nor did it have the authority to accept—a plea agreement specifying an illegal sentence.
However, the circuit court found that parole eligibility constituted a statutory right that petitioner
was capable of waiving as long as he did so knowingly, intelligently, and voluntarily. Given the
circuit court’s finding at the time of petitioner’s guilty pleas that the waiver of his rights was valid,
the court found that the requirement that petitioner waive parole eligibility was not in
contravention of statute and accordingly did not make the sentence to which petitioner agreed
illegal. Therefore, the circuit court denied petitioner’s motion.

        Petitioner now appeals the circuit court’s January 5, 2016, order denying petitioner’s
motion for correction of illegal sentence pursuant to Rule 35(a). In syllabus point one of State v.
Marcum, __ W.Va. __, __ S.E.2d __, 2016 WL 5957386 (W.Va. October 11, 2016), we set forth
the pertinent standard of review:



        1
        In State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 738-39 (1977), we found that
“[o]ne convicted of a crime and sentenced to the penitentiary is never entitled to parole,” but is
“[only] eligible to be considered for parole.” (citation omitted and emphasis in original).
        2
            See Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975).

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               “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.”
       Syl. Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

         On appeal, petitioner makes the same argument he made to the circuit court: the parties did
not have the authority to enter into—nor did the court have the authority to accept—a plea
agreement specifying an illegal sentence. See State ex rel. Gessler v. Mazzone, 212 W.Va. 368,
373, 572 S.E.2d 891, 896 (2002). In making this argument, we find that petitioner does not
challenge the length of his aggregate sentence of fifty years of incarceration because he does not
ask for the parties’ plea agreement to be vacated. Rather, petitioner states that his preferred remedy
is have to the provision whereby he agreed to waive parole eligibility excised from the agreement.3
Thus, we find that petitioner’s argument is solely based on his contention that this provision so
tainted the plea agreement with illegality that it rendered the sentence specified by that agreement
illegal.

         Petitioner relies on the decision of the United States Court of Appeals for the Eleventh
Circuit in Bates v. Secretary, Florida Dept. of Corrections, 768 F.3d 1278 (11th Cir. 2014), to
argue that a criminal defendant may not waive his right to parole eligibility. We find that the
question that the Eleventh Circuit had to decide in Bates was not whether a defendant may waive
his right to parole eligibility. Rather, the Eleventh Circuit addressed the question of whether the
jury in the penalty phase of a capital murder case should have been instructed that the petitioner
was ineligible for parole if given a life sentence—based on his agreement to waive parole
eligibility—despite the fact, at the time of his offense, the relevant statute provided that he would
be eligible for parole after serving twenty-five years of incarceration. 768 F.3d at 1300. As such,
we find that Bates is readily distinguishable from the instant case and conclude that petitioner’s
agreement to waive parole eligibility did not render petitioner’s sentence illegal.

        We agree with the State that the circuit court correctly determined that parole eligibility
constituted a statutory right that petitioner knowingly, intelligently, and voluntarily waived. Both
constitutional and statutory rights are capable of being waived. See Asbury v. Mohn, 162 W.Va.
662, 665, 256 S.E.2d 547, 549 (1979) (stating that “the right to appeal may be waived”); Syl. Pt. 2,
Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975) (holding that “[a] criminal defendant can
knowingly and intelligently waive his constitutional rights . . . when such knowing and intelligent
waiver is conclusively demonstrated on the record”). Upon our review of the record, we find that


       3
          In Gressler, we found that the proper remedy if a plea agreement is legally impossible to
fulfill is for the agreement to be vacated in its entirety and the parties to be placed, as nearly as
possible, in the positions they occupied prior to the entry of the plea agreement. 212 W.Va. at 374,
572 S.E.2d at 897.

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petitioner’s waiver of parole eligibility was valid. Therefore, we conclude that the circuit court did
not abuse its discretion in denying petitioner’s motion for correction of illegal sentence.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.
ISSUED: November 18, 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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