                                   STATE OF WEST VIRGINIA

                                 SUPREME COURT OF APPEALS



State of West Virginia,                                                              FILED
Plaintiff Below, Respondent                                                          June 28, 2013
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 12-1120 (Ritchie County 12-F-20)                                          OF WEST VIRGINIA


Christopher T. Wolfe
Defendant Below, Petitioner


                                    MEMORANDUM DECISION

        Petitioner Christopher T. Wolfe, by counsel Eric K. Powell, appeals the Circuit Court of
Ritchie County’s order entered July 30, 2012, sentencing him to six months to two years of
custody. The State, by counsel Andrew D. Mendelson, filed a response in support of the circuit
court’s order. Petitioner filed 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On January 4, 2011, Tracey Wolfe, petitioner’s brother, made a telephone call from jail to
the number where petitioner lived with his mother. During the call, which was intercepted by
corrections officials, he spoke to someone he referred to as “Chris” and “Critter,”1 and described a
“cold recipe” to “Chris,” who had asked for the recipe. Petitioner also discussed passing along the
recipe to someone named “Butch.” The next day, Tracey Wolfe placed a letter dated January 4,
2011, into prison mail to his mother that included a document with the heading “Critter’s Cold”
with instructions for making a substance out of Sudafed pills, among other ingredients, and
referred to the end-product as “dope.” Law enforcement officers later testified that the “Critter’s
Cold” recipe appeared to be instructions for manufacturing methamphetamine. The letter was
intercepted by officials at the correctional facility and given to a West Virginia State Trooper. The
trooper went to the home of petitioner and his mother and, with their consent, searched the home
but found no incriminating evidence.

        In January of 2012, a grand jury returned an indictment charging petitioner with one count
of conspiracy to operate or attempt to operate a clandestine drug laboratory. In March of 2012,
petitioner was convicted on the same charge after a jury trial. Both parties agree that the only
bases for the conviction were the telephone conversation on January 4, 2011, and the letter dated
       1
           The record reflects that “Critter” is a nickname for petitioner.
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January 4, 2011. In May of 2012, the circuit court sentenced petitioner to six months to two years
of placement at the Anthony Center for Young Adult Offenders for completion of its program
requirements, whereupon he is to be returned to the circuit court for further proceedings.

       “This Court reviews the circuit court's final order and ultimate disposition under
       an abuse of discretion standard. We review challenges to findings of fact under a
       clearly erroneous standard; conclusions of law are reviewed de novo.” Syllabus
       Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

Syl. Pt. 1, State v. Murray, 220 W.Va. 735, 649 S.E.2d 509 (2007).

        Petitioner first argues that the evidence below was “manifestly inadequate” because no
evidence showed that he possessed or assembled methamphetamine. Further, the evidence
showed he was only to pass along information to an alleged “Butch,” but no evidence showed he
would manufacture the methamphetamine himself. Finally, petitioner argues that the State failed
to establish that he was even a participant in the telephone conversation.

       “‘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.’ Syl. Pt. 4, State v. Less, 170 W.Va. 259, 294 S.E.2d
       62 (1981).” Syl. Pt. 3, State v. Burd, 187 W.Va. 415, 419 S.E.2d 676 (1991).

Syl. Pt. 5, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009). We hold that the jury had
adequate grounds to find that there was an agreement to operate or attempt to operate a
clandestine drug laboratory based upon petitioner’s brother calling his residence, calling him by
name, and petitioner making a request that elicited information describing how to produce
methamphetamine. Additionally, a member of the conspiracy, namely Tracy Wolfe, took an overt
act to effect the conspiracy by placing the directions for manufacturing methamphetamine into the
mail. Petitioner’s reliance on State v. Cummings, 220 W.Va. 433, 647 S.E.2d 869 (2007), is
misguided because that case dealt with a conviction “arising from the possession of illegal
contraband . . .” but no evidence supported the defendant having knowledge of the contraband in
a motor vehicle that the defendant was driving, which someone else owned. Id. at 440. Cummings
does not apply here because this case does not arise from the possession of illegal contraband, but
rather arises from a telephone conversation and letter describing how to manufacture
methamphetamine.

        Second, petitioner argues that his constitutional rights against double jeopardy have been
violated because “operating a clandestine drug laboratory” and “attempt[ing] to operate a
clandestine drug laboratory” are two separate offenses; therefore, his conspiracy charge for
“conspiracy to operate or attempt to operate a clandestine drug laboratory” is actually two charges
for the same offense. Petitioner admits that, because he never scheduled a hearing to address this
issue after moving for a new trial on the basis of this double jeopardy claim, the issue must be
reviewed for plain error. “To trigger application of the ‘plain error’ doctrine, there must be (1) an
error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness,

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integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller, 194 W.Va. 3,
459 S.E.2d 114 (1995). Further,

       “‘[t]he Double Jeopardy Clause in Article III, Section 5 of the West Virginia
       Constitution, provides immunity from further prosecution where a court having
       jurisdiction has acquitted the accused. It protects against a second prosecution for
       the same offense after conviction. It also prohibits multiple punishments for the
       same offense.’” Syllabus Point 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d
       529 (1977). Syl. Pt. 2, State v. Gill, 187 W.Va. 136, 416 S.E.2d 253 (1992).

Syl. Pt. 2, State v. Minigh, 224 W.Va. 112, 680 S.E.2d 127 (2009). Here, petitioner attempts to
argue that he somehow received multiple punishments for the same offense due to the statute
defining the crime as “operat[ing] or attempt[ing] to operate a clandestine drug laboratory . . .”
but he was charged with only the crime of conspiracy and received only one sentence. W. Va.
Code § 60A-4-411. We hold that no violation of double jeopardy occurred here.

        The Court has carefully considered the merits of each of petitioner’s arguments as set
forth in his brief. The circuit court did not err in convicting petitioner for conspiracy to operate or
attempt to operate a clandestine drug laboratory. For the foregoing reasons, we affirm.

                                                                                            Affirmed.
ISSUED: June 28, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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