State v. White

• Docket Number: 22-0197
• Decision Date: 07 November 2023
• Parties: STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. RUSTY ALLEN WHITE, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

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STATE OF WEST VIRGINIA, Plaintiff Below, Respondent, v. RUSTY ALLEN WHITE, Defendant Below, Petitioner.

No. 22-0197

Supreme Court of Appeals of West Virginia

November 7, 2023

Submitted: October 10, 2023

Appeal from the Circuit Court of Jefferson County The Honorable Debra McLaughlin, Judge Case No. CC-19-2018-F-31

Christian J. Riddell, Esq. The Riddell Law Group Martinsburg West Virginia Attorney for the Petitioner

Patrick Morrisey, Esq. Attorney General William E. Longwell, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for the Respondent

SYLLABUS BY THE COURT

1. When reviewing an order modifying or revoking a defendant's supervised release under West Virginia Code § 62-12-26(h), we apply a three-pronged standard of review. We review the circuit court's final order and decision to modify or revoke a defendant's supervised release under an abuse of discretion standard; we review challenges to findings of fact under a clearly erroneous standard; and we review questions of law and interpretations of statutes de novo.

2. United States v. Haymond, 588 U.S.___, 139 S.Ct. 2369, 204 L.Ed.2d 897 (2019), does not apply to a supervised release revocation pursuant to West Virginia Code § 62-12-26 because § 62-12-26 does not require a mandatory minimum sentence upon revocation.

3. "In order for the State to prove a conspiracy under W.Va. Code, 61-10-31(1), it must show that the defendant agreed with others to commit an offense against the State and that some overt act was taken by a member of the conspiracy to effect the object of that conspiracy." Syllabus point 4, State v. Less, 170 W.Va. 259, 294 S.E.2d 62 (1981).

OPINION

BUNN, JUSTICE

Petitioner Rusty Allen White appeals the Circuit Court of Jefferson County's February 16, 2022 order revoking his supervised release and sentencing him to a two-year term of imprisonment. In this appeal, Mr. White claims that the circuit court erred in denying his motion to dismiss the petition seeking to revoke his supervised release pursuant to West Virginia Code § 62-12-26. He argues that any additional term of imprisonment, outside the underlying statutory maximum term of the crime of conviction, required factual findings by a jury beyond a reasonable doubt. He also claims that the court erred by finding by clear and convincing evidence that he conspired to deliver a controlled substance. We disagree, as a revocation of supervised release pursuant to West Virginia Code § 62-12-26 does not require factual findings by a jury, and the evidence supported the court's factual finding and the following revocation of Mr. White's supervised release.

I. FACTUAL AND PROCEDURAL HISTORY

In June 2018, Mr. White entered a no contest plea to sexual assault in the third degree, a violation of West Virginia Code § 61-8B-5. On October 1, 2018, the circuit court sentenced Mr. White to one to five years imprisonment. His sentence included ten years of supervised release pursuant to West Virginia Code § 62-12-26. On the same day, Mr. White signed a six-page document notifying him of his supervised release terms and conditions. He acknowledged that he understood those terms and conditions and agreed to comply with them. The terms and conditions included that he "shall not violate any law of this state, any other state, any municipality, or of the United States" and that he "shall not use, consume, purchase, possess, or distribute any narcotics, marijuana, or other controlled substance, unless prescribed to him . . . by a physician." The acknowledgement included that if he violated "any of the terms and conditions," Mr. White would "be subject to immediate arrest, with or without a warrant," by his supervising probation officer. He did not appeal the sentence for his underlying conviction.

Mr. White completed the sentence of imprisonment^[1] and began his ten-year term of supervised release on January 14, 2021. On November 19, 2021, a probation officer filed a petition in the circuit court alleging that Mr. White violated the conditions of his supervised release, including the conditions regarding violating a law of this State or of the United States, and prohibiting the use, consumption, purchase, possession, or distribution of controlled substances. The petition alleged that Mr. White tested positive for cocaine and was charged and arrested for conspiracy to deliver crack cocaine.^[2] Mr. White filed a motion to dismiss the petition, claiming that he had served his sentence and could not be sentenced to further incarceration "based on any factual finding made without the aid of a jury trial." The State opposed the motion.

The court denied Mr. White's motion to dismiss and held a contested hearing regarding the allegations in the petition. Sergeant Justin Harper with the Martinsburg City Police Department testified about the allegation of conspiracy to deliver crack cocaine. He told the circuit court that he conducted a traffic stop of Mr. White's truck after he noticed a defective brake light. Mr. White was driving the truck and had a passenger, Mr. Joseph Garner. When Sgt. Harper asked Mr. White to step out of the vehicle, the officer noticed signs of crack use around the floorboard of Mr. White's seat: small pieces of copper scrub pad that Sgt. Harper explained users often stuff into a pipe to prevent crack from falling into their mouths. While Sgt. Harper found no controlled substances on Mr. White, he found 16.4 grams of crack cocaine in Mr. Garner's pants, as well as $1,900 cash. Sgt. Harper testified that amount was "a lot" of crack cocaine, confirming that it was "more crack than for normal personal use."

Significantly, Sgt. Harper also found a sandwich bag behind the seat in Mr. White's vehicle with the corner torn off. He testified that "typically" means "they're packaging crack cocaine for sale." Sgt. Harper explained that sellers "will put a small amount of crack in the corner of a sandwich bag, tie it off and rip the other part of the bag off so you're left with a sandwich bag that's either missing one or both corners."^[3] He also found used bags that looked like corners from plastic bags, as described above, in Mr. White's vehicle.

Mr. White informed Sgt. Harper that he was dropping Mr. Garner off at Mr. Garner's residence around the corner. Law enforcement did a knock and talk at the residence, where they encountered Mr. White's wife along with Cynthia Allen, Mr. Garner's significant other. Ms. Allen admitted drugs were inside the house, and law enforcement subsequently obtained a search warrant for that residence. Law enforcement found $2,700 cash, 13.6 grams of powdered cocaine, 90 grams of marijuana, 6.7 grams of crack cocaine, 1.4 grams of suspected heroin, five Suboxone strips, eight oxycodone pills, two pistols, and two digital scales. Many of these items were in plain view when law enforcement stepped into the apartment. Some of the crack cocaine was "actively being cooked" when law enforcement arrived. Sgt. Harper testified that the amounts of substances found by law enforcement were dealer amounts, or more than personal use amounts.

On cross-examination, defense counsel asked Sgt. Harper if he charged Mr. White for conspiracy to deliver. When Sgt. Harper confirmed the charge, defense counsel then asked, "What is your evidence of an agreement or tacit understanding between Mr. White and Mr. Garner to jointly engage in the distribution of crack?" Sgt. Harper catalogued the evidence before the circuit court at the time:

There's signs of crack use in his vehicle. There's evidence that crack or some type of [controlled dangerous substance] is being packaged inside his vehicle. One subject has all of the money [and] crack. The other subject has the car with signs of drug use and packaging material inside the car.

. . . .

. . . They state that they're driving from 7-Eleven back to Garner's house. So if his wife is at his house, wouldn't logic say that they left the house and went to 7-Eleven and came back? If he was buying crack from Mr. Garner inside the vehicle, there was a whole lot of crack already packaged at Mr. Garner's house so why would he need to drive anywhere to do a deal when his wife is sitting in plain view of a bunch of crack?

Mr. White's counsel inquired whether there was any other evidence of conspiracy, and Sgt. Harper answered that dealers typically "don't ride around with crack in their underwear[,]" but they place it there when the police pull them over. Sgt. Harper explained that fact also contributed to Mr. White's knowledge that drugs were in his vehicle.

Defense counsel noted that he did not intend to dispute the allegation in the petition regarding Mr. White's use of a controlled substance. Still, the State presented evidence, and Mr. White's probation officer testified that in October 2021, he asked Mr. White whether he had used controlled substances after Mr. White took a drug analysis test that showed positive results for controlled substances. Mr. White informed the probation officer that he had not, so the probation officer sent the specimen to the lab for confirmation. The probation officer explained that the lab results showed that the specimen was positive for "benzo . . . the metabolite of cocaine."

After hearing the evidence and argument from counsel, the circuit court determined that Mr. White violated conditions of his supervised release, finding by clear and convincing evidence that Mr. White possessed and used cocaine and conspired to deliver crack cocaine. The court revoked his supervised release and sentenced Mr. White to two years imprisonment and explained that upon release he would continue to serve supervised release until the expiration of his ten-year term. ^[4] Mr. White now appeals.

II....