WEST VIRGINIA RECORD

CHARLESTON - An inmate of the West Virginia Department of Corrections believes he was not credited for time he has already served.

Michael Dennis, incarcerated at the Mount Olive Correctional Complex, filed the suit Jan. 29 against the West Virginia Parole Board in Kanawha Circuit Court. He claims the parole board added time to his sentence for a crime for which he had already served time.

Dennis was arrested on July 25, 2001. He was found guilty of kidnapping, two counts of sexual assault in the second degree, robbery in the second degree, violation of protective order and domestic battery.

He was sentenced on Sept. 19, 2002, to serve life with mercy for the kidnappings; 10 to 25 years on each of the two sexual assault charges; 5 to 18 years on the second-degree robbery charge; one year on the violation of protective order charge and one year on the domestic battery charge.

The court ordered Dennis to serve the kidnapping and two sexual assault sentences consecutively, but that each of the other sentences would run concurrently to the kidnapping charge.

Dennis had served 1,226 days toward the kidnapping and robbery charges, and fully served the sentences for violation of protective order and domestic battery. After the appeal, the state re-charged Dennis with two counts of sexual assault and one count of robbery in the second degree.

On March 24, 2006, Dennis entered a guilty plea to second-degree robbery, but "the State dismissed the sexual assault charges with prejudice." By that time, Dennis had served a total of 1,704 days, more than four years.

Judge Arthur Recht sentenced Dennis to serve 5 to 18 years on the robbery charge. He also ordered that the robbery sentence would run consecutively to the kidnapping sentence rather than concurrently, as the robbery sentence had been running prior to the appeal.

At the sentence hearing, the defense asked Recht to make a ruling that Dennis was entitled to credit for time he already had served on the robbery sentence. Recht refused to make any finding on the issue of concurrent time. Instead, he said "the issue should be determined by the West Virginia Division of Corrections," the suit says.

Recht did, however, note that Dennis "shall receive credit for the time he has served to this point, beginning on July 23, 2001, and ending on March 24, 2006," the suit says.

"Sometime after this order was entered, the plaintiff discovered that the parole board was refusing to provide him with credit for any time served on his robbery sentence," the suit says.

The parole board established his parole eligibility date as July 25, 2016. The date is derived by combining Dennis' remaining minimum sentence for kidnapping plus the full five-year minimum on the robbery sentence. The suit says the parole board gave no reduction on the robbery sentence for the time Dennis had already served toward the robbery sentence prior to his appeal.

"The United States Constitution, the West Virginia Constitution, and West Virginia Code require that an inmate be given credit for the time they have served," the suit says. "It is unconstitutional to impose a higher or worse sentence upon a person who appeals than the person faced prior to the appeal."

The suit says the parole board's decision worsens the sentence Dennis must serve.

Dennis seeks a writ of mandamus, ordering the defendants to credit the plaintiff's robbery sentence with the time he served previously on the robbery sentence and therefore, to re-establish the plaintiff's first date of eligibility for parole.

Dennis is being represented by Andrew Price, and the case has been assigned to Judge James Stucky.

Kanawha Circuit Court case number 07-C-209