                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

                                                                                 FILED
State of West Virginia,                                                     February 22, 2019
Plaintiff Below, Respondent                                                  EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs) No. 17-0729 (Brooke County 13-F-72 and 14-F-45)

Adam Barnhart,
Defendant Below, Petitioner


                              MEMORANDUM DECISION

        Petitioner Adam Barnhart, pro se, appeals the August 7, 2017, order of the Circuit Court of
Brooke County denying his motion for correction of illegal sentence. Respondent State of West
Virginia, by counsel Robert L. Hogan, filed a response in support of the circuit court’s order.
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 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 with two counts of wanton endangerment with a
firearm. The parties agreed to resolve both cases through a plea bargain. Pursuant to the plea
agreement, 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 further 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 also agreed that
petitioner would serve his sentences consecutively, for an aggregate term of fifty years of




                                                1
incarceration. Finally, petitioner agreed to waive “the right to any parole [eligibility] on 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[.]” 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 a motion for correction of illegal sentence pursuant to
Rule 35(a) of the West Virginia Rules of Criminal Procedure.3 Petitioner argued 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 appealed the circuit
court’s January 5, 2016, order, but this Court affirmed the denial of his Rule 35(a) motion in State
v. Barnhart, No. 16-0032, 2016 WL 6819051 (W.Va. Nov. 18, 2016) (memorandum decision).4



        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.” (Emphasis in original.).
        2
            See Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975).
        3
        Rule 35(a) provides, in pertinent part, that “[t]he court may correct an illegal sentence at
any time[.]”
        4
            We take judicial notice of the record in Barnhart.

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         On July 31, 2017, petitioner filed a second motion for correction of illegal sentence, which
the circuit court denied by order entered August 7, 2017. The circuit court found that petitioner
“made no new argument” that would cause the court to modify its prior decision that was
subsequently affirmed in Barnhart. However, to the extent that petitioner added a policy argument
to his already rejected legal arguments, the circuit court found that it failed “to see how [e]nsuring
that a defendant who has been convicted of murder is incarcerated is a violation of public policy or
inconsistent with public safety.”

        Petitioner now appeals the circuit court’s August 7, 2017, order denying his motion for
correction of illegal sentence pursuant to Rule 35(a). In syllabus point one of State v. Marcum, 238
W.Va. 26, 792 S.E.2d 37 (2016), we set forth the pertinent 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.” Syl.
       Pt. 1, State v. Head, 198 W.Va. 298, 480 S.E.2d 507 (1996).

        On appeal, the parties dispute whether petitioner raises arguments different than those
rejected by this Court in Barnhart. Based on our review of the record, we find that petitioner raises
substantially the same arguments. Therefore, we adopt our analysis from Barnhart where we
found:

                . . . [P]etitioner 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 . . . . Rather, petitioner states that his
       preferred remedy is have to the provision whereby he agreed to waive parole
       eligibility excised from the agreement.[5] 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.

       ****



       5
          As we noted in Barnhart, “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.” 2016 WL
6819051, at *2 n.3 (citing Gessler, 212 W.Va. at 374, 572 S.E.2d at 897).

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               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 petitioner’s waiver of parole eligibility
       was valid.

2016 WL 6819051, at *2-3.

        In addition to his formerly rejected legal arguments, petitioner makes a policy argument.
Petitioner states that, if he is allowed to be eligible for parole and the West Virginia Parole Board
decides to release him, he would reenter society subject to the supervision of a probation officer.
Petitioner argues that this outcome would be preferable to him reentering society unsupervised
upon the discharge of his aggregate sentence.6 However, we concur with the circuit court’s finding
that, given petitioner’s murder conviction, requiring him to fully discharge his sentence is neither
inconsistent with public safety nor violative of public policy.

        As previously noted, petitioner does not challenge the length of his aggregate sentence. In
syllabus point four of State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), we held that
“[s]entences imposed by the trial court, if within statutory limits and if not based on some
[im]permissible factor, are not subject to appellate review.” 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 the circuit court’s August 7, 2017, order denying
petitioner’s motion for illegal correction of sentence.

                                                                                          Affirmed.

ISSUED: February 22, 2019

       6
         Pursuant to West Virginia § 15A-4-17(a), inmates are granted commutation from their
sentences for good conduct. West Virginia § 15A-4-17(k) provides, in pertinent part, that “[p]rior
to the calculated discharge date of an inmate serving a sentence for a felony crime of violence
against the person . . ., one year shall be deducted from the inmate’s accumulated good time to
provide for one year of mandatory post-release supervision[.]” The parties dispute West Virginia §
15A-4-17(k)’s applicability to petitioner given that § 15A-4-17(k) applies “to offenses committed
on or after July 1, 2013.” We decline to address that issue because “[t]his Court will not pass on a
non[-]jurisdictional question which has not been decided by the trial court in the first instance.”
Watts v. Ballard, 238 W.Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (quoting Syl. Pt. 2,
Sands v. Sec. Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)).

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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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