State v. Whindleton

• Decision Date: 26 May 2020
• Docket Number: No. 19-0333,19-0333
• Court: West Virginia Supreme Court
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Shaniqua Whindleton, Defendant Below, Petitioner

State of West Virginia, Plaintiff Below, Respondent v. Shaniqua Whindleton, Defendant Below, Petitioner

No. 19-0333

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

May 26, 2020

(Berkeley County 17-F-233)

MEMORANDUM DECISION

Petitioner Shaniqua Whindleton, by counsel Kevin D. Mills and Shawn R. McDermott, appeals the March 13, 2019, order of the Circuit Court of Berkeley County that sentenced her to one to five years in prison on the charge of possession with intent to deliver marijuana and which suspended such sentence in favor of probation for a period of five years. The State of West Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order. Petitioner submitted a reply.

This 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

In December of 2016, petitioner was a passenger in a vehicle being driven by Joshua Shaine Moore that was stopped by Trooper D.R. Walker in Berkeley County, West Virginia. Inside the vehicle, Trooper Walker discovered large amounts of individually sealed bags of marijuana, a vacuum sealer, empty plastic bags, a vacuum-sealed and loaded .357 Magnum revolver that had been wiped clean, and other evidence that resulted in the arrest of petitioner, Mr. Moore, and a second passenger, Abdul Kamara. All three were subsequently indicted on the charges of possession with intent to deliver marijuana, see W. Va. Code § 60A-4-401(a)(ii), transportation of a controlled substance into the state, see W. Va. Code § 60A-4-409(a), and one count of conspiracy to commit possession with intent to deliver marijuana. See W. Va. Code § 61-10-31.¹

On December 5, 2017, petitioner and the State entered into a deferred adjudication agreement under which petitioner pled guilty to the felony offense of possession with intent to deliver marijuana, which, pursuant to West Virginia Code § 61-11-22a,² the circuit court held in abeyance and placed petitioner on probation/pretrial release for a period of three years, withspecific terms and conditions. Pursuant to the agreement, petitioner was required to

fully cooperate with the State on the prosecution of this and pending cases against any and all co-defendants. . . . This cooperation includes the [petitioner] providing recorded, truthful, and full debriefings to the State about the aforementioned crimes . . . . Any failure by the [petitioner] to cooperate fully and truthfully as directed by the Berkeley County Prosecuting Attorney's Office or other state and local law enforcement authorities identified by this office in any and all matters relevant to this matter will constitute a breach of this agreement by the [petitioner].

In exchange, the State agreed to dismiss all remaining counts of the indictment against petitioner.

The deferred adjudication agreement further provided that,

[i]f the prosecuting attorney or the Probation department files a motion to accept [petitioner's] plea of guilty based upon an allegation that [petitioner] violated the terms and conditions imposed upon her by the court during the period of deferral and, after a hearing, the circuit court determines that there is reasonable cause to believe that the [petitioner] violated the terms and conditions, the Court shall enter the felony offense and sentence [petitioner] at the Court's discretion. [Petitioner] specifically waives any right to graduated sanctions that may exist pursuant to W. Va. Code 61-11-22a or 61-12-10.

However, under the agreement, "if [petitioner] successfully completes the period of deferral, the [petitioner] may withdraw her plea to the felony and enter a plea to misdemeanor possession of a controlled substance, marijuana [§ 60-4-401(c)] a lesser included offense, and be sentenced to a fine."

The circuit court thereafter accepted the agreement and entered a pretrial diversion order on January 31, 2018. Relevant to this appeal, additional terms and conditions to the deferred adjudication agreement were agreed upon and appended to the court's order, including that petitioner "not have any direct or indirect contact with any . . . co-defendant . . . ." and that petitioner "not use, consume, purchase, possess, or distribute any narcotics, marijuana, or other controlled substance, unless prescribed for him or her by a physician."

Meanwhile, the trial of petitioner's co-defendant, Mr. Moore, was scheduled to proceed on all three counts of the indictment.³ Petitioner was subpoenaed to testify. In preparation for Mr. Moore's trial, petitioner and her counsel twice met with the assistant prosecuting attorney and Trooper Walker regarding her testimony. The meetings with petitioner were memorialized in an August 1, 2018, memorandum prepared by the assistant prosecuting attorney, Kevin J. Watson ("APA Watson"), and signed by both APA Watson and Trooper Walker. The memorandum noted that, at the first meeting, petitioner denied knowing anything about the marijuana that was found in Mr. Moore's vehicle; admitted "that she thought something might be up, but didn't know if [Mr.Moore] sold marijuana"; and maintained that "she didn't know anything about a plan to sell or distribute" the marijuana, stating "I don't know and I won't assume." During that meeting, petitioner also "maintained that she didn't know [Mr. Moore] well, that they were just having sex but weren't in a relationship."

At the second meeting, the memorandum noted, petitioner eventually admitted that she had been in a serious relationship with Mr. Moore, and that, even though he often stayed at her house, did not have a car, and petitioner would often give him a ride, she denied "any detailed knowledge about Mr. Moore's marijuana operation/sales." Regarding the marijuana that was found in the vehicle at the time of her arrest, petitioner advised that Mr. Moore "briefly mentioned to her about selling the Marijuana to 2 different dispensaries in Whiteplains, N[ew] Y[ork] (near New York City), he said he wanted to see what they thought of his stuff." Petitioner further advised that "she didn't know anything about Abdul Kamara [the other passenger], and that he just showed up one day, she believed they [Kamara and Moore] lived together in California for a while." Regarding photographs that were found on Mr. Moore's phone of packages that contained marijuana that had shipping labels addressed to petitioner on them, petitioner stated that, although she lived alone, she never received any such packages and could not explain the pictures on Mr. Moore's phone. Regarding the gun that was found vacuum-sealed in the vehicle, petitioner claimed that it belonged to her, could not explain why male clothing was found in the bag with the gun, and "specifically denied wiping it for fingerprints or packaging it . . . for any illegal or bad purposes." Finally, although petitioner "agreed with Trooper [W]alker that [Mr. Moore] had used her, and indicated that they were not together now and they don't talk[,]" petitioner was present at Mr. Moore's pre-trial hearing "and was seated behind Mr. Moore—seemingly directly contradicting her statements that they were not together now and they don't talk." In sum, the memorandum stated:

It was clear that [petitioner] was minimizing her knowledge and relationship with Mr. Moore, was directly untruthful about several matters, and generally was not cooperating with law enforcement on this matter. The State proceeded with the jury trial of Mr. Moore without [petitioner as a witness], based in large part upon her uncooperativeness and untruthfulness.⁴

. . . .

During the statements, when [petitioner] would speak about marijuana, Joshua Moore, or the firearm, her voice and body language would change, making it appear as though she was being deceitful.

(Footnote added).

On August 14, 2018, the State filed a Motion to Revoke Deferred Adjudication and Accept the Defendant's Plea of Guilty. The State requested a hearing "to determine if there is reasonable cause to believe that the defendant violated the terms and conditions imposed[,]" including the requirements that she "shall truthfully answer all inquiries of . . . any law enforcement officer[,]" and "shall not have any direct or indirect contact with any . . . co-defendant . . . ." Upon such afinding, the State requested that the court "accept and adjudicate [petitioner] upon the guilty plea to Possession With Intent to Deliver Marijuana . . . and sentence [her] in the [c]ourt's discretion."

The State filed a supplement to its motion to revoke on September 7, 2018, in which it alleged that petitioner violated an additional term and condition of her deferred adjudication—that is, petitioner tested positive for marijuana despite the condition directing that she not consume marijuana or any other controlled substance.

A revocation hearing was conducted on September 17, 2018, at which Trooper Walker testified.⁵ Trooper Walker's testimony was consistent with the observations made in the August 1, 2018, memorandum. In an order entered on September 18, 2018, the circuit court found that the evidence presented at the September 17^th hearing "show[ed] reasonable cause to believe that [petitioner] violated a condition of her Deferred Adjudication Agreement as alleged" by the State. The court found:

Specifically, [petitioner] was untruthful regarding her relationship with the co-defendant who was the target of the investigation. In addition to being a violation of her terms of deferred adjudication, this was material because it was bargained for by the State in the plea agreement. [Petitioner]

...