                                                      STATE OF WEST VIRGINIA 

                                                    SUPREME COURT OF APPEALS


State of West Virginia,                                                                  FILED
Plaintiff Below, Respondent                                                          October 12, 2018
                                                                                         EDYTHE NASH GAISER, CLERK
vs.) No. 17-0911 (Berkeley County 12-F-157)                                              SUPREME COURT OF APPEALS
                                                                                             OF WEST VIRGINIA 

Michael A. Brown Jr.,
Defendant Below, Petitioner


                                                          MEMORANDUM DECISION
        Petitioner Michael A. Brown Jr., by counsel Sherman L. Lambert Sr., appeals the Circuit
Court of Berkeley County’s September 18, 2017, order revoking his probation and reinstating his
original sentence of two to thirty years of incarceration following his conviction of one count of
possession with intent to deliver a controlled substance and an enhancement under West Virginia
Code § 60A-4-408. The State of West Virginia, by counsel Robert L. Hogan, filed a response in
support of the circuit court’s order. On appeal, petitioner argues that the State failed to satisfy its
burden of proof for revocation and that the circuit court’s underlying sentence is illegal.

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

        In November of 2012, petitioner pled guilty to one count of possession with intent to
deliver a controlled substance in violation of West Virginia Code § 60A-4-401(a)(i). In January
of 2013, the circuit court sentenced petitioner to a term of incarceration of two to thirty years.
Due to a prior felony drug conviction in the State of Florida, petitioner’s sentence included an
enhancement under West Virginia Code § 60A-4-408.1 The circuit court, however, suspended
                                                            
              1
                  West Virginia Code § 60A-4-408 states, in relevant part, as follows:

                     (a) Any person convicted of a second or subsequent offense under this
              chapter may be imprisoned for a term up to twice the term otherwise authorized,
              fined an amount up to twice that otherwise authorized, or both. . . .

                     (b) For purposes of this section, an offense is considered a second or
              subsequent offense, if, prior to his conviction of the offense, the offender has at
                                                                                                                 
                                                                                              (continued . . . )
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petitioner’s sentence and placed him on probation for a period of five years, subject to certain
terms and conditions, including the following: (1) refrain from violating the law; (2) answer
truthfully the inquires of his probation officer or any law enforcement officer; (3) notify his
probation officer within twenty-four hours if arrested or questioned by law enforcement; (4)
refrain from contact with persons engaged in criminal activity; (5) refrain from using,
consuming, purchasing, possessing, or distributing any drugs or other controlled substance not
lawfully prescribed; (6) refrain from being anywhere drugs are illegally sold, distributed, kept, or
used; and (7) refrain from owning, possessing, carrying, or using any firearm or other lethal
weapon.

        In June of 2017, petitioner’s probation officer filed a petition to revoke probation and,
later, an amended petition to revoke probation based on allegations that petitioner violated his
probation by committing the offenses of (1) possession with intent to deliver a controlled
substance (heroin) on May 18, 2017; (2) possession with intent to deliver a controlled substance
(oxycodone) on May 18, 2017; (3) being a prohibited person in possession of a firearm on May
18, 2017; (4) delivery of a controlled substance (heroin) on April 27, 2017; (5) delivery of a
controlled substance (heroin) on May 2, 2017; (6) delivery of a controlled substance (heroin) on
May 8, 2017; and (7) delivery of a controlled substance (heroin) on May 11, 2017. The petition
further alleged that petitioner received a traffic citation on June 29, 2016, but failed to notify his
probation officer of this contact with law enforcement. Finally, the petition alleged that petitioner
possessed or was in the presence of drugs, drug paraphernalia, and a firearm seized during a
search of his bedroom, including fifteen grams of heroin, fourteen oxycodone pills, digital scales,
and a loaded Glock .357 caliber pistol.

         The circuit court held a hearing on the revocation petition in September of 2017, during
which petitioner denied the allegations. The State presented the testimony of petitioner’s
probation officer and two law enforcement officers. The probation officer testified to the terms
and conditions of petitioner’s probation and further described the warrants issued for petitioner
regarding the offenses alleged in the petition. One of the law enforcement officers, Corporal
Travis Boyles of the Berkeley County Sheriff’s Department, testified to a search conducted on
May 18, 2017, at petitioner’s home.2 According to Corporal Boyles, petitioner sold what the
officer believed to be narcotics to an individual cooperating with law enforcement during a series
of controlled buys, which preceded the search of petitioner’s residence. Corporal Boyles then
testified to the items seized from petitioner’s bedroom during the search, including the loaded
pistol and what he believed to be narcotics. Corporal Boyles admitted, however, that no
laboratory testing had, at that point, been completed on the substances recovered from
petitioner’s home to determine if they were, in fact, controlled substances.

                                                                                                                                                                                                
              any time been convicted under this chapter or under any statute of the United
              States or of any state relating to narcotic drugs, marihuana, depressant, stimulant,
              or hallucinogenic drugs.
              2
         According to the record, the home in question is a shared residence that belongs to
petitioner’s mother.



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        The second law enforcement officer, Sergeant Theodore Snyder of the Berkeley County
Sheriff’s Department, testified to several controlled buys that an individual cooperating with law
enforcement conducted with petitioner. According to Sergeant Snyder, the informant supplied
petitioner with money and then received what the officer believed to be heroin from petitioner.
Based on his experience as a narcotics investigator and the recorded evidence of the transactions,
Sergeant Snyder testified that he had no reason to believe that the substances petitioner sold were
anything other than heroin, although he confirmed that no laboratory testing had yet been
completed to confirm that the substances in question were controlled substances.

        Petitioner’s defense to these charges was, essentially, that the State failed to conduct
laboratory testing or otherwise present evidence that the substances at issue were controlled
substances. The circuit court, however, found that the State established, by a preponderance of
the evidence, that petitioner delivered heroin to a cooperating witness on April 27, 2017; May 2,
2017; May 8, 2017; and May 11, 2017. The circuit court further found that the drugs, drug
paraphernalia, and a firearm were found at petitioner’s residence during the execution of a search
warrant. Therefore, the circuit court found that petitioner violated the terms of his probation,
revoked the same, and reinstated petitioner’s original sentence of two to thirty years of
incarceration. It is from the sentencing order that petitioner appeals.

       This Court has previously established the following standard of review:

               When reviewing the findings of fact and conclusions of law of a circuit
       court sentencing a defendant following a revocation of probation, we apply a
       three-pronged standard of review. We review the decision on the probation
       revocation motion under an abuse of discretion standard; the underlying facts are
       reviewed under a clearly erroneous standard; and questions of law and
       interpretations of statutes and rules are subject to a de novo review.

Syl. Pt. 1, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997). Upon our review, the Court
finds no error in the circuit court’s revocation of petitioner’s probation.

        On appeal, petitioner relies almost entirely upon his assertion that, because no testing was
done to confirm whether the substances he possessed were actually controlled substances, the
State failed to satisfy its burden of proof for revoking his probation. “Because a determination of
criminal guilt is not involved, the standard of proof in a probation revocation hearing is by a
clear preponderance of the evidence and not proof beyond a reasonable doubt.” State v. Ketchum,
169 W.Va. 9, 12-13, 289 S.E.2d 657, 659 (1981). Here, the State clearly met that burden. As this
Court has held, “[w]here probation is revoked on one valid charge, the fact that other charges
may be invalid will not preclude upholding the revocation.” Id. at 10, 289 S.E.2d at 657, Syl. Pt.
3. Given the overwhelming evidence that petitioner committed the offense of being a prohibited
person in possession of a firearm, it is unnecessary to address petitioner’s main argument on
appeal concerning the lack of testing of the substances at issue.

        In his brief on appeal, petitioner makes almost no mention of the overwhelming evidence
that established that he committed the offense of being a prohibited person in possession of a
firearm. The only challenges petitioner appears to make regarding the evidence related to this

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charge are that it was based on hearsay and that “no evidence was adduced at the probation
revocation that the seized items . . . were used, owned or possessed by . . . [p]etitioner.” This
argument directly contradicts the evidence presented below.

         Specifically, the State presented direct evidence of petitioner’s commission of the offense
of being a prohibited person in possession of a firearm.3 During his testimony, Corporal Boyles
testified that “officers located a loaded Glock pistol in [petitioner’s] bedroom . . . .” In fact, when
asked how he was aware that the room in question was petitioner’s bedroom, Corporal Boyles
testified that “during the process of securing the residence . . . [petitioner] was located in that
room in which that firearm was located.”4 While petitioner questioned the officer regarding other
individuals who lived in, or had access to, the home, he failed to provide any evidence rebutting
the fact that he possessed the firearm in question found in his bedroom. Given the fact that
petitioner clearly committed the offense of being a prohibited person in possession of a firearm,
we find that it is unnecessary to address petitioner’s argument concerning the validity of his
probation revocation for violations related to controlled substances.

              West Virginia Code §§ 62-12-10(a)(1)(B) and (C) set forth, in relevant part, that

              [i]f the court or judge finds reasonable cause exists to believe that the probationer
              . . . [e]ngaged in new criminal conduct other than a minor traffic violation or
              simple possession of a controlled substance . . . the court or judge may revoke the
              suspension of imposition or execution of sentence . . . and order that sentence be
              executed.

As set forth above, the evidence overwhelmingly established, by a preponderance of the
evidence, that petitioner committed the offense of being a prohibited person in possession of a
firearm, which constitutes new criminal conduct beyond that excluded under the probation
revocation statute. For these reasons, we find no error in the circuit court’s revocation of
petitioner’s probation and imposition of the original sentence.

       Finally, we find no merit to petitioner’s argument that his original sentence was illegal
because the circuit court enhanced his original sentence under West Virginia Code § 60A-4-
401(a)(i) of one to fifteen years for possession with intent to deliver a controlled substance to a
                                                            
              3
         Pursuant to West Virginia Code § 61-7-7(a)(1), “[e]xcept as provided in this section, no
person shall possess a firearm, as such is defined in section two of this article, who . . . [h]as
been convicted in any court of a crime punishable by imprisonment for a term exceeding one
year[.]” Petitioner does not dispute that he was previously convicted of a felony and, thus, was
prohibited from possessing a firearm at the time of the search at issue. Petitioner further does not
challenge the issue of whether the Glock pistol in question constitutes a “firearm” as that term is
defined for purposes of this statute.
              4
        On appeal, petitioner does not challenge the testimony that the room in which both he
and the pistol were located was his bedroom. Instead, throughout his brief, he simply alleges
generally that the pistol and other items were found in “his mother’s residence.”



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term of incarceration of two to thirty years under West Virginia Code § 60A-4-408. In relevant
part, West Virginia Code § 60A-4-408(a) provides that “[a]ny person convicted of a second or
subsequent5 offense under this chapter may be imprisoned for a term up to twice the term
otherwise authorized . . . .” (emphasis added). On appeal, however, petitioner wholly ignores this
language. Instead, petitioner argues that West Virginia Code § 61-11-18(a), our general recidivist
statute, permits enhancement only to the extent that “the minimum term shall be twice the term
of years otherwise provided for under such sentence” when a circuit court imposes an
indeterminate sentence and the defendant has previously been convicted of a felony. We note,
however, that this language is entirely inapplicable to petitioner’s case, as the circuit court
clearly ruled that petitioner’s sentence was enhanced “pursuant to W[est] V[irginia] Code § 60A-
4-408 . . . .” For these reasons, petitioner is entitled to no relief in this regard.

              For the foregoing reasons, we affirm.

                                                                                       Affirmed.

ISSUED: October 12, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Paul T. Farrell sitting by temporary assignment
Justice Tim Armstead
Justice Evan H. Jenkins

Justice Allen H. Loughry II suspended and therefore not participating.
 




                                                            

              5
        Petitioner does not challenge the fact that the conviction on appeal constitutes a second
or subsequent conviction, as contemplated by this statute.




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