Robert Hart, Jr. v. Marvin Plumley, Warden ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Robert Hart, Jr., FILED
Petitioner Below, Petitioner February 11, 2013
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 11-1326 (Harrison County 10-C-13) OF WEST VIRGINIA
Marvin Plumley,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Robert Hart, by counsel, G. Ernest Skaggs, appeals the circuit court’s order
entered March 3, 2011, and July 20, 2011, denying his petition for writ of habeas corpus. Warden
Plumley1 of Mount Olive Correctional Complex, by counsel Michele Duncan Bishop, filed a
response in support of the circuit court’s order.
This Court has considered the parties’ briefs and the appendix 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.
Petitioner entered guilty pleas for sexual abuse in the first degree, robbery in the second
degree, conspiracy to commit robbery in the first degree, nighttime robbery, conspiracy to commit
nighttime burglary, grand larceny, and fleeing from an officer by means of a vehicle causing
damage to property. His total sentence was ten to fifty-eight years, to be served consecutively.
Petitioner’s co-defendants pleaded guilty to all the same offenses, with the exception of the sexual
abuse charge.
On or about January 1, 2010, petitioner filed a petition for writ of habeas corpus on four
different bases: consecutive sentences for the same transaction, erroneous information in the pre-
sentence report, severer sentence than expected, and excessive or disproportionate sentence.
Petitioner now appeals only the alleged excessive or disproportionate sentence.
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
1
Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have replaced the
respondent party’s name with Warden Marvin Plumley. The initial respondent on appeal, Adrian
Hoke, is no longer the warden of Huttonsville Correctional Center.
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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).
Petitioner essentially challenges his sentence in this matter. In reviewing challenges to
sentencing orders, “‘if within statutory limits and if not based on some [im]permissible factor, are
not subject to appellate review,’ Syllabus point 4, State v. Goodnight, 169 W. Va. 366, 287 S.E.2d
504 (1982).” Syl. Pt. 6, State v. Slater, 222 W. Va. 499, 665 S.E.2d 674 (2008). Further, “‘[t]he
constitutionality of a statute is a question of law which this Court reviews de novo.’ Syl. Pt. 1,
State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).” Syl. Pt. 2, State v. James, 227 W. Va.
407, 710 S.E.2d 98 (2011).
On appeal, petitioner argues that the circuit court erred in issuing him consecutive
sentences, whereas his co-defendants received concurrent sentences. He states that there was “no
difference. . .” between his actions and that of his co-defendants “except the charge of sexual
assault.” Petitioner cites to State v. Buck, 173 W.Va. 243, 314 S.E.2d 406 (1984) and State v.
Booth, 224 W.Va. 307, 685 S.E.2d 701 (2009) to support the notion that courts have reversed
based on the disparity of sentencing between similarly-situated co-defendants. The State argues
that the Court below did not abuse its discretion because the sentence was within its statutory
limits and not disproportionate to the crimes committed.
The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in his petition for appeal. Finding no error in the denial of habeas corpus relief, the Court
fully incorporates and adopts the circuit court’s detailed and well-reasoned “Order Denying Post-
Conviction Writ of Habeas Corpus” entered August 19, 2011, insofar as it addresses the
assignments of error appealed herein, and directs the Clerk to attach the same hereto.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: February 11, 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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