IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2009 Term
May 14, 2009
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MICHAEL O’DELL DENNIS,
Petitioner Below, Appellant
STATE OF WEST VIRGINIA, DIVISION OF CORRECTIONS,
TERESA WAID, WARDEN,
HUTTONSVILLE CORRECTIONAL CENTER
Respondents Below, Appellees,
Appeal from the Circuit Court of Ohio County
Honorable Arthur M. Recht, Judge
Civil Action No. 08-C-91
REVERSED AND REMANDED
Submitted: February 25, 2009
Filed: May 14, 2009
Andrew M. Price, Esq.
Smith, Price & Pangburn
Wheeling, West Virginia
Attorney for Appellant
Darrell V. McGraw, Jr., Esq.
Scott R. Smith, Esq.
Wheeling, West Virginia
Attorney for Appellees
John H. Boothroyd, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for Amicus Curiae,
West Virginia Parole Board
The Opinion of the Court was delivered PER CURIAM.
“West Virginia Code section 53-4A-7(c) (1994) requires a circuit court
denying or granting relief in a habeas corpus proceeding to make specific findings of fact
and conclusions of law relating to each contention advanced by the petitioner, and to state
the grounds upon which the matter was determined.” Syllabus Point 1, State ex rel. Watson
v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).
Michael O’Dell Dennis, the appellant, appeals the April 3, 2008, order of the
Circuit Court of Ohio County that denied the appellant’s habeas corpus petition in which the
appellant challenged his sentence. Because we find that the circuit court’s order is
insufficient for meaningful review, we reverse and remand for the circuit court to make
specific findings of facts and conclusions of law to support its ruling.1
The facts as set forth in the parties’ pleadings are as follows. The appellant
was convicted by jury trial in the Circuit Court of Ohio County in August 2002, of the
offenses of kidnaping, second degree robbery, two counts of second degree sexual assault,
violating a protective order, and domestic battery. The appellant received a life sentence
with mercy for kidnaping, a five-to-eighteen-year sentence for second degree robbery, a ten
to twenty-five-year sentence for each second degree sexual assault conviction, a one-year
We acknowledge the contribution in this case of the West Virginia Parole Board
which filed an amicus curiae brief with this Court. The Parole Board states that its sole
objective below was to carry out the written terms of the circuit court’s sentencing order, and
that it takes no position regarding the merits of the appellant’s challenge to the lawfulness
of the sentencing order.
sentence for violation of a protective order, and a one-year sentence for domestic battery.
The kidnaping and sexual assault sentences were ordered to run consecutively and the
remaining sentences to run concurrently with the kidnaping and sexual assault sentences.
The appellant appealed his convictions to this Court, and in the opinion of State
v. Dennis, 216 W. Va. 331, 607 S.E.2d 437 (2004), this Court reversed the convictions for
sexual assault and robbery, and affirmed the remaining convictions. On remand, the State
recharged the appellant with two counts of sexual assault and one count of robbery in the
second degree. On March 24, 2006, the appellant entered a plea of guilty to second degree
robbery, and the State dismissed the sexual assault charges with prejudice.2 By order entered
on April 12, 2006, the Circuit Court of Ohio County again sentenced the appellant to five-toeighteen years for second degree robbery. However, the court ordered that the sentence of
five to eighteen years is to run consecutively with the kidnaping sentence in contrast to the
original second degree robbery sentence which was to run concurrently with the kidnaping
sentence. In regard to credit for time served on the original second degree robbery sentence,
The appellant’s plea was entered pursuant to Kennedy v. Frazier, 178 W. Va. 10, 357
S.E.2d 43 (1987). According to Syllabus Point 1 of Kennedy,
An accused may voluntarily, knowingly and
understandingly consent to the imposition of a prison sentence
even though he is unwilling to admit participation in the crime,
if he intelligently concludes that his interests require a guilty
plea and the record supports the conclusion that a jury could
the order indicates “the Defendant shall receive credit for the time he has served to this point,
beginning on July 23, 2001, and ending on March 24, 2006.” The order indicates further that
Whereupon, the Court was asked by the Defendant to
make a finding that the Defendant was entitled to credit for
“concurrent time” served since the time the Defendant was
sentenced on September 19, 2002 for “Robbery in the Second
Degree.” Counsel for the State objected, and the Court did NOT
make the finding requested by the Defendant. The Court further
indicated that the issue should be determined by the W. Va.
Division of Corrections.
The appellant now asserts that he learned sometime in September 2006 that he
did not receive credit from the Parole Board for the time he had served on the original second
degree robbery sentence. According to the appellant, it is the position of the Parole Board
that the appellant will not be eligible for parole until July 25, 2016. Apparently, the Parole
Board arrived at this date by adding the remaining portion of the minimum sentence for
kidnaping, which expires in July 2011, to the full five year minimum sentence for second
degree robbery. Therefore, it appears that the Parole Board has not granted to the appellant
any credit for time served on the original second degree robbery sentence.
Thereafter, the appellant brought a declaratory judgment and mandamus action
in the Circuit Court of Kanawha County in which he challenged the Parole Board’s failure
to credit him with time served on the original second degree robbery sentence. By order of
March 21, 2007, the court denied the relief sought. The circuit court based its decision on
the finding that it lacked jurisdiction to grant a declaratory judgment in the appellant’s favor
because the Parole Board is required to give effect to sentencing orders as written.
Therefore, a declaration on behalf of the appellant would be of no “practical assistance in
setting the underlying controversy to rest.” In addition, the circuit court denied a writ of
mandamus on the basis that the appellant failed to show that he had a clear legal right or that
the Parole Board had a clear legal duty to provide the appellant with the requested relief. The
appellant subsequently appealed the circuit court’s decision to this Court, and this Court
refused the petition for appeal.
The appellant subsequently filed a petition for a writ of habeas corpus in the
Circuit Court of Ohio County in which he sought relief from the Parole Board’s failure to
credit him for time served on the original second degree robbery sentence. The appellant
also argued that the court’s sentence violated constitutional principles because his robbery
sentence after his appeal is greater than the original sentence in that it runs consecutively to
the kidnaping sentence and not concurrently. The appellant requested that his parole date be
re-established to credit his second degree robbery sentence with the time served on the
original sentence, or that his sentence be amended so that the second degree robbery sentence
runs concurrently to the kidnaping sentence.
By order dated April 3, 2008, the Circuit Court of Ohio County denied the
habeas relief sought by the appellant. The appellant now appeals the April 3, 2008, order.
STANDARD OF REVIEW
We are called upon in this case to review the circuit court’s denial of the
appellant’s petition for habeas relief.
In reviewing challenges to the findings and conclusions
of the circuit court in a habeas corpus action, we apply a threeprong 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.
Syllabus Point 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). This Court
specifically has held that “[f]indings of fact made by a trial court in a post-conviction habeas
corpus proceeding will not be set aside or reversed on appeal by this Court unless such
findings are clearly wrong.” Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W.
Va. 479, 212 S.E.2d 69 (1975). With these standards to guide us, we now proceed to our
discussion of this case.
The appellant’s first assignment of error is that the circuit court erred in
dismissing his habeas corpus petition without making any of the necessary findings to
support the dismissal. We agree.
West Virginia Code § 53-4A-7(c) (2008) provides, in part, that
When the court [in a post-conviction habeas corpus
proceeding] determines to deny or grant relief, as the case may
be, the court shall enter an appropriate order. . . . In any order
entered in accordance with the provisions of this section, the
court shall make specific findings of fact and conclusions of law
relating to each contention or contentions and grounds (in fact
or law) advanced, shall clearly state the grounds upon which the
matter was determined, and shall state whether a federal and/or
state right was presented and decided.
In addition, Rule 4(c) of the Rules Governing Post-Conviction Habeas Corpus Proceedings
in West Virginia indicates, in part, that
The [habeas corpus] petition shall be examined promptly
by the judge to whom it is assigned. The court shall prepare and
enter an order for summary dismissal of the petition if the
contentions in fact or law relied upon in the petition have been
previously and finally adjudicated or waived. The court’s
summary dismissal order shall contain specific findings of fact
and conclusions of law as to the manner in which each ground
raised in the petition has been previously and finally adjudicated
Finally, this Court has held that
West Virginia Code section 53-4A-7(c) (1994) requires
a circuit court denying or granting relief in a habeas corpus
proceeding to make specific findings of fact and conclusions of
law relating to each contention advanced by the petitioner, and
to state the grounds upon which the matter was determined.
Syllabus Point 1, State ex rel. Watson v. Hill, 200 W. Va. 201, 488 S.E.2d 476 (1997).
The appellant has raised grounds for relief that are cognizable in habeas
corpus.3 Specifically, the appellant claims that the sentencing court violated Federal and
State Constitutional prohibitions against double jeopardy by depriving him of credit for time
served on his original robbery conviction. The appellant also asserts that the sentencing
court violated the Federal and State Constitutions by imposing upon re-conviction a longer
prison sentence than he originally received. The portion of the circuit court’s order disposing
of the appellant’s habeas corpus petition reads in its entirety:
In accord with the requirements of Rule 4(c) of the West
Virginia Rules Governing Post Conviction Habeas Corpus, this
Court has examined the Petition and the underlying criminal
matters and has concluded the grounds for relief the Petitioner
has asserted have been previously and finally adjudicated or
Accordingly, the Court has concluded the Petition should
be dismissed without a hearing and struck from the active
docket of this Court with the objection of the Petitioner saved to
the Court’s ruling.
Our post-conviction habeas corpus statute provides that a person may seek relief from
an improper sentence by filing a petition for a writ of habeas corpus ad subjiciendum. See
W. Va. Code § 53-4A-1(a) (1967).
Clearly, the circuit court’s order lacks the requisite findings of fact and
conclusions of law that permit meaningful review by this Court.4 We only can speculate
from the appellant’s brief and the State’s response the possible bases for the circuit court’s
decision. However, “[t]he mission of the appellate judiciary is neither to mull theoretical
abstractions nor to practice clairvoyance.” State v. Miller, 194 W. Va. 3, 14, 459 S.E.2d 114,
125 (1995), quoting Moore v. Murphy, 47 F.3d 8, 10 (1st Cir. 1995). We previously have
recognized that “in most circumstances the failure to make specific findings of fact and
conclusions of law regarding an issue raised in habeas proceedings . . . necessitate[s] a
remand[.]” State v. Warden, W. Va. Penitentiary, 207 W. Va. 11, 19, 528 S.E.2d 207, 215
(1999). This is certainly the case here.
For the reasons set forth above, we reverse the circuit court’s April 3, 2008,
order summarily dismissing the appellant’s habeas corpus petition, and we remand for the
circuit court to make specific findings of fact and conclusions of law in support of its ruling
that the appellant waived and previously adjudicated each ground for relief advanced in his
habeas corpus petition.
We also are unaided by the brief record below and the cursory nature of the State’s
Reversed and remanded.