Brian K. Markley v. WV Division of Corrections & Rehabilitation and WV Parole Board

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Brian K. Markley, FILED
Plaintiff Below, Petitioner
September 23, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 19-0683 (Berkeley County 18-C-429) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
West Virginia Division of Corrections and
Rehabilitation, and West Virginia Board of Parole,
Respondents Below, Respondents
MEMORANDUM DECISION
Petitioner Brian K. Markley, self-represented litigant, appeals the June 27, 2019, order of
the Circuit Court of Berkeley County denying his “petition to correct parole eligibility.” The West
Virginia Board of Parole (“Board”), by counsel Keith D. Fisher, filed a response in support of the
circuit court’s order. The West Virginia Division of Corrections and Rehabilitation did not respond.
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.
Following a jury trial, petitioner was found guilty of two counts of first-degree sexual
assault, one count of malicious assault, and one count of attempted second-degree murder. In April
of 1992, petitioner was sentenced to two indeterminate fifteen-to-twenty-five-year terms of
incarceration for the first-degree sexual assault convictions; one two-to-ten-year term of
incarceration for the malicious assault conviction; and a one-year term of incarceration for the
attempted second-degree murder conviction. The circuit court ordered that petitioner’s sentences
be served consecutively. Petitioner’s effective sentencing date was December 25, 1991.
In December of 2018, petitioner filed a pro se petition for a writ of habeas corpus. As his
sole ground for relief, he alleged that his constitutional right to due process was being violated as
the West Virginia Division of Corrections and the West Virginia Board of Parole “[r]efuse[d] to
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[r]ecognize” his correct parole eligibility date.1 The circuit court appointed counsel for petitioner
in February of 2019, who assisted petitioner in filing a petition to correct his parole eligibility in
May of 2019. The petition alleged that the Board had incorrectly set petitioner’s parole eligibility
date as December 25, 2023. According to the petition, petitioner’s first sexual assault sentence was
“discharged on June 14, 2004”; the second sexual assault sentence was “discharged on December
13, 2016”; and the malicious wounding sentence “should be a two[-]to[-]ten[-]year term.” Petitioner
then concluded, without citing any relevant authority, that he was eligible for parole in December
of 2018, or twenty-seven years after his sentencing date. As relief, petitioner requested that the
circuit court “issue an [o]rder directing the West Virginia Parole Board to recognize [his] correct
[p]arole [e]ligibility date.”
Later in May of 2019, the Board filed a motion to intervene and to dismiss petitioner’s
petition to correct parole eligibility. It explained that, in order to be eligible for parole, an inmate
is required to serve the minimum term of the sentence imposed, pursuant to West Virginia Code §
62-12-13(b)(1)(A). Further, for an inmate serving consecutive sentences, as in petitioner’s case,
“the time of parole eligibility shall be computed by adding together the minimum terms of the
sentences.” 92 C.S.R. § 1-4.1.a.1. The Board asserted that petitioner’s aggregate thirty-two-to-
sixty-year sentence began on December 25, 1991, and he would not be eligible for parole until
December 25, 2023. Finally, the Board noted that factoring in potential “good time” credits,
petitioner could discharge his sixty-year sentence in thirty years, which would be two years earlier
than his scheduled parole date or December 25, 2021.
The circuit court granted the Board’s motion to intervene, found that petitioner failed to
state a claim for relief, and granted the motion to dismiss by its June 27, 2019, order. Petitioner now
appeals this order.
On appeal, petitioner styled his brief as an “original jurisdiction petition for writ of habeas
corpus.” However, petitioner filed a notice of appeal challenging the circuit court’s order and
requests reversal of that order as relief. Accordingly, we treat petitioner’s filing as an appeal of a
denial of a petition for a writ of mandamus to correct parole eligibility, rather than a petition for
writ of habeas corpus. See Syl. Pt. 8, Nobles v. Duncil, 202 W. Va. 523, 505 S.E.2d 442 (1998)
(“Mandamus is a proper remedy to compel tribunals and officers exercising discretionary and
judicial powers to act, when they refuse so to do, in violation of their duty, but it is never employed
to prescribe in what manner they shall act, or to correct errors they have made.”) (internal citation
omitted). The standard of review for a circuit court’s decision to grant or deny a writ of mandamus
is de novo. Syl. Pt. 2, Wiseman Const. Co., Inc. v. Maynard C. Smith Const. Co., Inc., 236 W. Va.
351, 779 S.E.2d 893 (2015).
“A writ of mandamus will not issue unless three elements coexist—(1) a
clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of
respondent to do the thing which the petitioner seeks to compel; and (3) the absence
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Notably, petitioner has previously filed a petition for writ of habeas corpus on the same
grounds. The Berkeley County Circuit Court denied petitioner’s prior petition, and this Court
affirmed that decision in 2011. See Markley v. W. Va. Bd. of Parole, No. 11-0412, 2011 WL
8197534 (W. Va. Oct. 25, 2011) (memorandum decision).
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of another adequate remedy.” Syllabus Point 2, State ex rel. Kucera v. City of
Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
Syl. Pt. 1, State ex rel. Billings v. City of Point Pleasant, 194 W. Va. 301, 460 S.E.2d 436 (1995).
Petitioner argues that his parole eligibility date has been incorrectly set by the Board.
According to petitioner, his fifteen-to-twenty-five-year sentences have an actual minimum period
of time of twelve-and-one-half years, rather than fifteen years. He argues that he discharged his two
first-degree sexual assault sentences in December of 2016 and should be eligible for parole after
serving the two-year minimum term for the malicious assault conviction. He further argues that the
circuit court erred in denying his petition without first holding a hearing. Upon our review, we find
petitioner is entitled to no relief on appeal.
We have held that “‘[a] person convicted of a crime shall be considered for parole only after
he becomes eligible therefor under the appropriate statute.’ Syl. Pt. 2, State v. Lindsey, 160 W.Va.
284, 233 S.E.2d 734 (1977).” Syl. Pt. 2., State ex rel. Gordon v. McBride, 218 W. Va. 745, 630
S.E.2d 55 (2006). Pursuant to West Virginia Code § 62-12-13(b)(1), an inmate “is eligible for parole
if he or she . . . [h]as served the minimum term of his or her indeterminate sentence or has served
one fourth of his or her definite term sentence” among other requirements. Further, for an inmate
serving consecutive sentences “the time of parole eligibility shall be computed by adding together
the minimum terms of the sentences.” 92 C.S.R. § 1-4.1.a.1. In petitioner’s case, the minimum term
of incarceration is the sum of two fifteen-year terms and one two-year term, or thirty-two years. As
asserted by the Board during the proceeding below and again on appeal, petitioner is required to
serve thirty-two years of incarceration before he can be eligible for parole. Petitioner’s effective
sentencing date was in December of 1991. Thus, his parole eligibility date is correctly set for
December of 2023. Petitioner has failed to demonstrate a clear legal right to an earlier parole
eligibility date, and we find no error in the circuit court’s denial of his petition to correct his parole
eligibility date.
For the foregoing reasons, the circuit court’s June 27, 2019, order is hereby affirmed.
Affirmed.
ISSUED: September 23, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
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