State v. Haught
| Decision Date | 03 June 1988 |
| Docket Number | No. 17941,17941 |
| Citation | 371 S.E.2d 54,179 W.Va. 557 |
| Parties | STATE of West Virginia v. Roger Thomas HAUGHT. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Before a trial court conditions its recommendation for a defendant's parole upon the defendant's payment of statutory fines, costs and attorney's fees, the trial court must consider the financial resources of the defendant, the defendant's ability to pay and the nature of the burden that the payment of such costs will impose upon the defendant.
2. During a preliminary hearing held for the purpose of determining the question of probable cause for an arrest or search, a trial court is not required to disclose the identity of a confidential informant, provided that there is a substantial basis for believing that the informant is credible, that there is a factual basis for the information furnished and that it would impose an unreasonable burden on one of the parties or on a witness to require that the identity of the informant be disclosed at the hearing.
3. Even though the prosecuting attorney participated in the investigation surrounding the defendant's arrest and was present at the defendant's arrest, where the record failed to disclose any evidence which would indicate that the prosecutor's interest in prosecuting the case went beyond his or her ordinary dedication to his or her duty to see that justice is done, the trial court did not err in denying a defendant's motion for a special prosecutor.
4. The description contained in a search warrant is sufficient where a law enforcement officer charged with making a search may, by the description of the premises contained in the search warrant, identify and ascertain the place intended to be searched with reasonable certainty.
5. " 'Rulings on the admissibility of evidence are largely within a trial court's discretion and should not be disturbed unless there has been an abuse of discretion.' " Syl. pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983), quoting State v. Louk, 171 W.Va. 639 , 643, 301 S.E.2d 596, 599 (1983).
Shirley J. Stanton, Fairmont, for Roger Thomas Haught.
Silas Taylor, Deputy Atty. Gen., Charleston, for State.
This case is before this Court upon the appeal of Roger Haught. It arises from an order of the Circuit Court of Marion County which found the appellant guilty of manufacturing a controlled substance, marihuana, and possession with intent to deliver the same, in violation of W.Va.Code, 60A-4-401(a)(ii) [1983]. 1 The trial court sentenced the appellant to one to five years on each count with the sentences to run consecutively. The appellant was also fined $5000 for each count and assessed court costs and attorney's fees. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.
The appellant and his girlfriend, Barbara Higgins, were arrested in the early morning hours of September 4, 1985, at Higgins' home. The police had obtained a warrant to search the residence, and substantial quantities of marihuana and drug paraphernalia were discovered. Upon confrontation by the police, the appellant admitted "it's [the marihuana] all mine."
The police were made aware of the appellant's activities by his brother, Martin Haught. Martin Haught testified that he met with state troopers who installed a taping device on his person the night before the appellant's arrest. He met with the appellant later that night and was backed on this occasion by three sheriff's deputies, two members of the Mannington police department, three members of the Department of Public Safety and the prosecuting attorney. During Martin Haught's meeting with the appellant, the appellant gave him a bag of marihuana. The bag of marihuana and the taped conversation were subsequently given to the police.
Prior to trial, the appellant moved to suppress the tape recording of the conversation between his brother and him and also moved for the appointment of a special prosecutor. Both of these motions were denied by the trial court. The appellant's subsequent motions for a new trial, judgment of acquittal and bail pending appeal were all denied by the trial court.
The first issue before us in this case is whether the trial court, in imposing a fine of $5000 for each count of which the appellant was convicted and assessing court costs and attorney's fees against him, erred in recommending that parole not be considered for the appellant until all court costs, attorney's fees and statutory fines had been paid. 2
The appellant, an indigent, contends that the trial court erred in conditioning its recommendation for parole on the appellant's payment of costs, attorney's fees and statutory fines because the trial court failed to consider the appellant's ability to pay such. The State, on the other hand, points out that the trial court, in its penitentiary commitment order made no such recommendation and that the sentence and fine imposed were within the statutory limits prescribed by W.Va.Code, 60A-4-401(a)(ii) [1983].
At the outset, it is important to note that the transcript in the case before us reveals that the trial court indicated its recommendation for the appellant's parole was conditioned upon the appellant's payment of statutory fines imposed as well as the reimbursement of costs and attorney's fees; however, the trial court did not have the authority to release the appellant on parole. See W.Va.Code, 62-13-2 [1978]. Pursuant to W.Va.Code, 62-12-17 [1953], that authority is vested exclusively in the state parole board. Moreover, there is no further evidence in the record that the trial court ever made such a recommendation to the board.
Even though it is unclear in this case whether or not such a recommendation was made to the parole board, we are of the opinion that standards relating to this issue should be clarified. Although the standards regarding the payment of costs and attorney's fees as a condition of parole are also unclear, we believe that the standards regarding such in the probation context, which are well-defined through both statutory and case law, are analogous and helpful in our discussion of this case. 3
W.Va.Code, 62-12-17 [1953] instructs that a convicted defendant may be released on parole provided that the following conditions are met:
(1) That the parolee shall not, during the period of his parole, violate any criminal law of this or any other state, or of the United States.
(2) That he shall not, during the period of his parole, leave the State without the consent of the board.
(3) That he shall comply with the rules and regulations prescribed by the board for his supervision by the probation and parole officer.
In addition, the [parole] board may impose, subject to modification at any time, any other conditions which the board may deem advisable.
Pursuant to W.Va.Code, 29-21-17(d) [1983], a trial court is authorized to order a defendant to repay the costs of representation provided the defendant under the State's public defender law. 4 W.Va.Code, 29-21-17(d) [1983] provides in pertinent part:
(d) In the circumstances and manner set forth below, circuit judges may order repayment to the state of the costs of representation provided under this article:
(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the court may require that person to pay as costs the compensation of appointed counsel, the expenses of the defense and such other fees and costs as authorized by statute.
(2) The court shall not order a person to pay costs unless the person is able to pay without undue hardship. In determining the amount and method of repayment of costs, the court shall take account of the financial resources of the person, the person's ability to pay and the nature of the burden that payment of costs will impose....
(3) When a person is sentenced to repay costs, the court may order payment to be made forthwith or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future.
(emphasis added)
In Armstead v. Dale, 170 W.Va. 319 , 322, 294 S.E.2d 122, 125 (1982), this Court concluded that the repayment provision embodied in W.Va.Code, 29-21-17(d) [1981, 1983] was permissible under the constitutional principles of equal protection and the availability of legal counsel. We recognized that because the imposition of financial sanctions as a condition of probation is a matter within the discretion of the trial court, such condition must be reasonable. Armstead, supra, 294 S.E.2d at 125, see syl. pt. 6, Louk v. Haynes, 159 W.Va. 482, 223 S.E.2d 780 (1976). In Armstead, we emphasized that "[a] repayment condition is unreasonable if it is beyond probationer's ability to pay without causing undue hardship to himself or his family." Id; Fox v. State, 176 W.Va. 677, 680, 347 S.E.2d 197, 200 (1986). In syllabus point 1 of Armstead, supra, we stated: (emphasis added)
This Court considered a related issue in Fox v. State, supra. In syllabus point 1 of Fox, we concluded that a condition of probation which requires a defendant to pay restitution or court costs and attorney's fees is unreasonable if it is beyond the offender's ability to pay without undue hardship to himself or his...
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