                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


                                                                                    FILED
                                                                                 April 15, 2016
R.C.,                                                                            RORY L. PERRY II, CLERK
Petitioner Below, Petitioner                                                   SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA

vs) No. 15-0646 (Kanawha County 14-P-594)

Patrick Mirandy, Warden,
St. Mary’s Correctional Center
Respondent Below, Respondent



                                 MEMORANDUM DECISION

      Petitioner R.C.,1 pro se, appeals the June 16, 2015, order of the Circuit Court of Kanawha
County that dismissed his petition for writ of habeas corpus which challenged a denial of parole.
Respondent Patrick Mirandy, Warden, St. Mary’s Correctional Center, by counsel Benjamin
Freeman, 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Petitioner arrived in West Virginia on August, 25, 1996, after being paroled by Illinois on a
conviction of armed robbery. On August, 26, 1996, petitioner’s sister was murdered. On
November 4, 1996, petitioner pled guilty to the first degree murder of his sister. Consistent with
the plea agreement, the circuit court sentenced petitioner to a life term of incarceration with the
possibility of parole. The circuit court committed petitioner to the custody of the West Virginia
Division of Corrections (“DOC”). On January 29, 1997, the DOC compiled a report stating that
there was evidence that in between strangling his sister and stabbing her to death, “[petitioner]
removed his sister’s clothing and sexually assaulted her.” The West Virginia Parole Board
       1
        Because petitioner’s positive HIV status is addressed, this case is confidential pursuant to
Rule 40(e)(4) of the West Virginia Rules of Appellate Procedure.


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(“board”) received the DOC’s report on February 4, 1997.

        Petitioner most recently received a parole hearing on August 26, 2014. According to the
hearing transcript, petitioner was evasive as to why he was in West Virginia in 1996 and whether
he murdered his sister, stating that “I’m not denying any guilt. . . . I did do it or didn’t do it.” Twice,
the board’s hearing examiner had to correct petitioner by referring to earlier statements made by
petitioner. Petitioner did not dispute his earlier statements. The hearing examiner also noted that
petitioner had not had any prison disciplinary charges since 2008 and that petitioner had obtained a
diploma in vocational training. However, the hearing examiner found that petitioner’s statement
that he had not caused “any problems” in West Virginia was untrue because “you are in prison for
first degree murder.” Petitioner answered, “Yes, sir.”

        Following the August 26, 2014, hearing, the board denied parole to petitioner and further
determined that he would not receive another hearing for three years. The board concluded that
“[petitioner’s] crime was an egregious act of violence that warrants justification for extended
parole consideration” and that “[petitioner’s] continued incarceration will serve to protect society
from possible future violence.” The board further concluded that petitioner was “not prepared to
reintegrate into society.” Petitioner’s next parole hearing is scheduled for August of 2017.
However, the board informed petitioner that he had “the opportunity to submit information to the
[b]oard . . . to request a review before the expiration of this period.” Unsatisfied with the board’s
decision, petitioner filed a petition for writ of habeas corpus alleging that the board acted
arbitrarily in denying him parole and that he should be interviewed by the board on an annual
basis. On June 16, 2015, the circuit court dismissed petitioner’s petition “because the petition has
failed to demonstrate to this [c]ourt’s satisfaction that [petitioner] is entitled to relief.”

       Petitioner appeals the circuit court’s June 16, 2015, order dismissing his habeas petition
challenging the board’s August 26, 2014, denial of parole. We apply the following standard of
review in habeas appeals:

                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.

Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006). In addition, the board’s
decision to deny parole is subject only to review for abuse of discretion. See Syl. Pt. 3, Rowe v.
Whyte, 167 W.Va. 668, 280 S.E.2d 301 (1981) (citing Tasker v. Mohn, 165 W.Va. 55, 67, 267
S.E.2d 183, 190 (1980)).

        On appeal, petitioner notes that in Rowe, we ordered the board to give Mr. Rowe another
parole hearing because we found that the board improperly acted like a sentencing court by placing
“[undue] emphasis upon the petitioner’s criminal activity prior to incarceration.” 167 W.Va. at
678, 280 S.E.2d at 306. We find Rowe to be distinguishable because, contrary to petitioner’s
contentions, we determine that the board did not place undue emphasis upon petitioner’s criminal
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activity. Instead, the board’s questioning focused on petitioner’s behavior while incarcerated. For
example, the board’s hearing examiner questioned petitioner about his vocational training during
his incarceration and noted that petitioner had not had any prison disciplinary charges since 2008.
However, the examiner also found that petitioner’s statements at the parole hearing were not true
because petitioner was evasive as to why he was in West Virginia in 1996 and whether he
murdered his sister—a crime for which he pled guilty. Thus, we find that the board denied parole
to petitioner both because of the “egregious” nature of his crime and because of petitioner’s
evasiveness about the circumstances, and not because of his prior criminal activity.2

        Petitioner also alleges that the board denied parole to him because of his positive HIV
status. Respondent counters that in this case, petitioner’s positive HIV status played no role in the
board’s decision. Based on our review of the board’s decision and the hearing transcript, we
concur with respondent and determine that petitioner’s positive HIV status was not a factor in the
board’s denial of parole.

        Finally, petitioner argues that the board violated our holdings in State ex rel. Carper v.
West Virginia Parole Board, 203 W.Va. 583, 509 S.E.2d 864 (1998), in determining that he would
not receive another parole hearing for three years without performing a case-specific analysis.
Petitioner committed his offense at a time when eligible inmates serving a life sentence were
statutorily entitled to yearly reviews by the board; therefore, Carper applies to this case. See Syl.
Pt. 2, 203 W.Va. at 585, 509 S.E.2d at 886. However, in Syllabus Point 3 of Carper, we held that
the board could interview inmates less frequently if it concluded that “there will be no detriment or
disadvantage to the prisoner from such an extension.” Id. at 585, 509 S.E.2d at 886. In petitioner’s
case, the board concluded that petitioner was “not prepared to reintegrate into society.” The board
further concluded that the facts of petitioner’s case constituted “justification for extended parole
consideration.” Given the “egregious” nature of petitioner’s crime and his evasiveness about its
circumstances, we agree with those conclusions. We find that the board further complied with
Carper by informing petitioner that he had the opportunity to submit information to the board and
to request a review before the expiration of the three year period. See Syl. Pt. 3, 203 W.Va. at 585,
509 S.E.2d at 886. Accordingly, we conclude that the board did not abuse its discretion in denying
parole to petitioner and scheduling his next hearing for August of 2017.

        For the foregoing reasons, we affirm the circuit court’s June 16, 2015, order dismissing
petitioner’s habeas petition challenging the board’s August 26, 2014, decision.

                                                                                            Affirmed.
       2
          Petitioner disputes some of the circumstances of his crime by accusing respondent’s
counsel of falsely stating that there was evidence that petitioner sexually assaulted his sister before
killing her. However, respondent’s counsel’s statement is supported by the January 29, 1997 report
which was compiled by the DOC following petitioner’s committal to its custody. The DOC’s
report was made part of the record on appeal when we granted respondent’s motion to file a
supplemental appendix by an order entered October 16, 2015. Thus, we reject petitioner’s
accusation that respondent’s counsel has made false statements.

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ISSUED: April 15, 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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