State v. Nicastro, 18581

• Decision Date: 14 July 1989
• Docket Number: No. 18581,18581
• Citation: 383 S.E.2d 521,181 W.Va. 556
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Keith Lawrence NICASTRO.

Page 521

383 S.E.2d 521

181 W.Va. 556

STATE of West Virginia v. Keith Lawrence NICASTRO.

No. 18581.

Supreme Court of Appeals of West Virginia.

July 14, 1989.

Syllabus by the Court

1. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syl. pt. 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983).

2. "An indictment that follows the language of W.Va.Code, 60A-4-401(a), is sufficient on its face." Syl. pt. 1, State v. Meadows, 170 W.Va. 191, 292 S.E.2d 50 (1982).

3. An indictment alleging a violation of W.Va.Code, 60A-4-401(a), as amended, is sufficient to sustain a conviction for delivery of marihuana, even though the indictment omits stating whether the alleged offense was committed with or without remuneration.

4. "As a general rule, proceedings of trial courts are presumed to be regular, unless the contrary affirmatively appears upon the record, and errors assigned for the first time in an appellate court will not be regarded in any matter of which the trial court had jurisdiction or which might have been remedied in the trial court if objected to there." Syl. pt. 17, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

5. "In a criminal trial for violation of Code, 60A-4-401(a), the jury must be instructed about each element of the crime including intent." Syl. pt. 2, State v. Barnett, 168 W.Va. 361, 284 S.E.2d 622 (1981).

6. Prior to imposition of a sentence of incarceration for a defendant convicted of delivery of less than 15 grams of marihuana in violation of W.Va.Code, 60A-4-401(a), as amended, who, although not within the "without remuneration" exception of W.Va.Code, 60A-4-402(c), as amended, has no prior criminal record, a trial court must consider: (1) whether the defendant has a history of involvement with illegal drugs; (2) whether the defendant is a reasonably good prospect for rehabilitation; (3) whether incarceration would serve a useful purpose; and (4) whether available alternatives to incarceration, such as probation conditioned upon community service, would be more appropriate.

Joseph A. Lazell, Asst. Atty. Gen., Charleston, for appellee.

Roger L. Thompson, Buckhannon, for Nicastro.

McHUGH, Justice:

This case is before the Court upon the appeal of Keith Lawrence Nicastro. The appellant was convicted of delivery of a controlled substance, with remuneration, in the Circuit Court of Upshur County. We have reviewed the petition for appeal, all matters of record, and briefs of the parties. We are of the opinion that the judgment of the Circuit Court of Upshur County should be affirmed in part, and this case is remanded for reconsideration of sentencing.

I

During the months of May and June, 1985, the sheriff's office in Upshur County began an undercover operation to investigate drug-related offenses, some of which were believed to be occurring on the campus of West Virginia Wesleyan College. The investigation involved a "switch program," which involved deputy sheriffs from several counties, working in different counties, posing as prospective drug purchasers.

Jerry McCauley, a deputy sheriff in Randolph County, was assigned to an undercover investigation in Upshur County in May, 1985. McCauley testified at trial that on June 13, 1985, he and Larry Spittler, an informant, went to the appellant's apartment. The appellant's roommate, John Twill, was present at the time. The appellant and Twill told McCauley and Spittler that within a couple of days the appellant and Twill would have a quarter-pound of marihuana. On June 19, 1985, McCauley and Spittler returned to the appellant's apartment. Upon arriving, Twill was coming out of the apartment. Twill told McCauley and Spittler that there was only a quarter-ounce of marihuana left inside. McCauley and Spittler went inside and met the appellant and Robert Nicholas, a friend of the appellant. After conversing for a few minutes, the appellant was asked if he had the marihuana. He replied that he did and asked McCauley and Spittler how much they wanted. McCauley replied, "a quarter ounce." The appellant went into another room and returned with a bag of marihuana. McCauley asked the appellant how much money he wanted for the marihuana. The appellant said twenty-five dollars, which McCauley gave to the appellant. The State's evidence at trial indicated that the amount of marihuana delivered was 5.8 grams.

The appellant testified at trial that he never sold McCauley marihuana. He also testified that his roommate, John Twill, bought and sold drugs frequently, and on one occasion during the summer of 1985, the appellant "handed" drugs to someone who purchased from Twill. However, the appellant testified that this was not what happened in this case with Deputy McCauley.

The appellant also testified that his friendship with Robert Nicholas had ended prior to the summer of 1985, and therefore, the appellant was never alone with Nicholas in the appellant's apartment, as alleged by the State. Furthermore, the appellant testified that the building in which his apartment was located was frequented by several people throughout the summer of 1985.

The appellant was convicted of delivery of a controlled substance, with remuneration, in violation of W.Va.Code, 60A-4-401(a) [1983], ¹ and was sentenced to the West Virginia Penitentiary for one to five years.

II

The appellant contends that the indictment in this case was insufficient to support his conviction of delivery of a controlled substance, with remuneration. Specifically, the appellant maintains that because the indictment failed to allege that the delivery took place "with remuneration," the appellant's conviction should be set aside. We do not agree with this contention.

The indictment in this case alleged that the appellant, "on the 19th day of June, 1985 did unlawfully and feloniously deliver a controlled substance, to-wit: marihuana, listed in Schedule I [60A-2-204(d)(13) ], in violation of the provisions of Chapter 60A, Article 4, Section 401(a) of the West Virginia Code, as amended[.]"

The appellant claims that an important factor in alleging a violation of W.Va.Code, 60A-4-401(a) is whether the offense was committed "with remuneration" or "without remuneration." Therefore, the appellant maintains that whether or not remuneration was involved should be set forth in the indictment.

W.Va.Code, 60A-4-402(c) provides: "Notwithstanding any other provision of this chapter to the contrary, any first offense for distributing less than 15 grams of marihuana without any remuneration shall be disposed of under section 407 [§ 60A-4-407]."

W.Va.Code, 60A-4-407 [1971] provides:

Whenever any person who has not previously been convicted of any offense under this chapter or under any statute of the United States or of any state relating to narcotic drugs, marihuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a controlled substance under section 401(c) [§ 60A-4-401(c) ], the court, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided. Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions under section 408 [§ 60A-4-408]. The effect of such dismissal and discharge shall be to restore such person in contemplation of law to the status he occupied prior to such arrest and trial. No person as to whom such dismissal and discharge have been effected shall be thereafter held to be guilty of perjury, false swearing, or otherwise giving a false statement by reason of his failure to disclose or acknowledge such arrest or trial in response to any inquiry made of him for any purpose. There may be only one discharge and dismissal under this section with respect to any person.

After a period of not less than six months which shall begin to run immediately upon the expiration of a term of probation imposed upon any person under this chapter, such person may apply to the court for an order to expunge from all official records all recordations of his arrest, trial, and conviction, pursuant to this section. If the court determines after a hearing that such person during the period of such probation and during the period of time prior to his application to the court under this section has not been guilty of any serious or repeated violation of the conditions of such probation, it shall enter such order.

The appellant correctly points out that this Court has noted the significance of the statutory provisions which allow less severe penalties for drug offenses not involving remuneration.

In State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975), it was stated:

This Court takes notice of the pervasive abuse of controlled drugs among adolescents and young adults too inexperienced to be aware of the dangers of narcotics. The Uniform Controlled Substance Act, W.Va.Code, 60A-4-401(c) and 60A-4-407 [1971] recognize this problem by making first offense possession of under 15 grams of marijuana a misdemeanor with mandatory probation. Particularly in college localities, many young people are likely to find themselves on premises leased or owned by others of their own age group on which controlled substances may be found.

Id. 158...