State v. Hardesty

461 S.E.2d 478, 194 W. Va. 732
CourtWest Virginia Supreme Court
DecidedJuly 19, 1995
Docket22593
StatusPublished
Cited by7 cases

This text of 461 S.E.2d 478 (State v. Hardesty) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hardesty, 461 S.E.2d 478, 194 W. Va. 732 (W. Va. 1995).

Opinions

FOX, Judge:1

This appeal from the Circuit Court of Preston County, West Virginia, brings before the Court two issues arising from a trial in which the appellant, Linda Hardesty, was convicted of eight criminal offenses relating to the possession and delivery of a controlled substance. The appellant contends she received multiple punishments for the same offense, in violation of the double jeopardy provisions of the West Virginia and United States Constitutions. She also contends the circuit court erred in rulings relating to the admission into evidence of a written transcript of audio tape recordings made by police.

In July 1993, a confidential informant with the Tygart Valley Drug and Narcotics Task Force (Task Force) began working in the Kingwood, West Virginia, area. On 12 July 1993, the informant paid a visit to The Office Bar in Kingwood, an establishment operated by the appellant. After striking up a conversation with the appellant, the informant indicated his desire to purchase “four hits of acid.”2 The appellant left the bar and went upstairs to the apartment where she lived with her daughter and her daughter’s boyfriend, Chris Shrout. After a brief interval, the appellant returned with the LSD. She and the informant left the bar, and the informant paid her and received the LSD on the sidewalk in front of the bar.

On 13 July 1993, the informant returned to The Office Bar, spoke with the appellant, and asked to purchase four more hits of LSD. Using an intercom system, the appellant called upstairs and placed the informant’s [735]*735order. Chris Shrout subsequently came downstairs, and the informant gave Shrout money and received the LSD there in the bar.

Later the same day, while working on an unrelated case, the informant noticed Shrout standing on the street in front of The Office Bar. The informant asked Shrout if he had any LSD left, and Shrout said he had three hits left. The informant left, returned to the Task Force members, and asked if they wanted a “buy” of the remaining LSD. Members of the Task Force instructed the informant “to get the rest of it off the street.” The informant returned and parked his car in a space in front of the bar. The appellant emerged from the bar, and the informant placed his order. The appellant then went upstairs, returned with the LSD, and she and the informant consummated their transaction.

The informant wore a “wire” on each of the three occasions he purchased LSD from the appellant and Chris Shrout. The “wire” consisted of a microphone and a radio transmitter which transmitted the informant’s conversation to Task Force members, who made audio tape recordings of the transmissions.

In October 1993, the Preston County Prosecuting Attorney brought The Office Bar cases before the county’s grand jury. On 19 October 1993, the grand jury returned a ten-count indictment against the appellant. Counts 1, 4, and 7 of the indictment charged the appellant with possession of a controlled substance with intent to deliver within 1000 feet of a public school, in violation of W.Va. Code § 60A-4-401.3 Counts 2, 5, and 8 of the indictment charged the appellant with delivery of a controlled substance within 1000 feet of a public school, in violation of W.Va. Code § 60A-4-A01(a)(ii).4 Counts 3 and 10, alternatively, charged the appellant with delivery of an imitation controlled substance in violation of W.Va.Code § 60A-4-401.5 Counts 6 and 9 charged the appellant with conspiracy to deliver a controlled substance, in violation of W.Va.Code § 61-10-31.6

The appellant was arraigned on 29 October 1993 and pleaded not guilty to all charges. At the arraignment, the prosecutor provided a disclosure, listing as exhibits the audio tape recordings made by the Task Force of the informant’s transactions with the appellant and Chris Shrout. The disclosure did not reveal the identity of the informant. The case was scheduled for trial on 5 April 1994.

At trial, a jury convicted the appellant on eight counts of the indictment: three counts [736]*736of possession with the intent to deliver LSD within 1000 feet of a public school; three counts of delivery of LSD within 1000 feet of a public school; and two counts of conspiracy to commit the crime of delivery of a controlled substance. The jury acquitted the appellant on the two alternative charges of delivery of an imitation controlled substance. The court sentenced the appellant to eight concurrent one-to-five-year sentences.7

The appellant argues she received multiple punishments for the same offense, in violation of State and Federal constitutional double jeopardy provisions.8 Specifically, she contends she was punished for eight crimes, but the evidence supported only four substantive crimes, that is, three LSD sales and one continuing conspiracy to sell LSD. The appellant raised the same contention prior to and at the time of trial. The circuit court agreed, in part, concluding the three possession with intent to deliver charges and the three delivery charges were duplicative. In an effort to cure this double jeopardy violation, the court ran the sentences concurrently, so “there is no multiple punishment for those three counts.” The court rejected the appellant’s contention that the two conspiracy charges were duplicate charges of the same crime.

We agree with the trial court’s conclusion that the possession with intent to deliver counts and the delivery counts were duplicate charges, and that multiple punishments for these duplicate charges would violate constitutional double jeopardy protections. However, we do not agree with the trial court’s conclusion that the concurrent sentencing cured violations of double jeopardy provisions prohibiting multiple punishments for the same offense. Concurrent sentencing does not cure violations of constitutional double jeopardy provisions prohibiting multiple punishments for the same offense. See State ex rel. Blake v. Chafin, 183 W.Va. 269, 395 S.E.2d 513 (1990).

In Chafin, this Court explicitly rejected the view known as the “concurrent sentence rule.” Essentially, the concurrent sentence rule holds concurrent sentencing cures violations of constitutional double jeopardy provisions prohibiting multiple punishments for the same offense. We reject the concurrent sentence rule because we believe there is a possibility that duplicate convictions adversely affect an inmate’s consideration for parole. This harm is not cured by concurrent sentences. For example, as in this ease, we believe there is a substantial possibility that an inmate with three convictions will receive more favorable consideration for parole than an inmate with six convictions.

In accord with this view, we conclude the trial court should have stricken the three duplicate convictions for possession with intent to deliver a controlled substance. Accordingly, we reverse the judgments of conviction entered against the appellant on counts 1, 4, and 7, charging her with possession with intent to deliver a controlled substance.

We disagree with the appellant’s contention that the two conspiracy counts are duplicate charges of the same crime. The evidence clearly proves that on two occasions, on two different days, two separate conspiracies occurred and resulted in two distinct drug sale transactions.

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State v. Hardesty
461 S.E.2d 478 (West Virginia Supreme Court, 1995)

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Bluebook (online)
461 S.E.2d 478, 194 W. Va. 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hardesty-wva-1995.