Opinion
No. 22-0023
11-08-2023
STATE of West Virginia, Plaintiff Below, Respondent, v. Charles Lee FINLEY, Defendant Below, Petitioner.
Juston H. Moore, Esq., Juston H. Moore, PLLC, Wayne, West Virginia, Attorney for the Petitioner Patrick Morrisey, Esq., Attorney General, R. Todd Goudy, Esq., Assistant Attorney General, Charleston, West Virginia, Attorney for the Respondent
Syllabus by the Court
1. "This Court’s application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule. We may, sua sponte, in the interest of justice, notice plain error." Syllabus point 1, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998).
2. "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, integrity, or public reputation of the judicial proceedings." Syllabus point 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
3. "The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syllabus point 8, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953).
4. For the purposes of West Virginia Code § 60A-10-4(d) (eff. 2012), completed methamphetamine is not "a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed."
Appeal from the Circuit Court of Wayne County, The Honorable Jason J. Fry, Judge, Case No. 21-F-137
Juston H. Moore, Esq., Juston H. Moore, PLLC, Wayne, West Virginia, Attorney for the Petitioner
Patrick Morrisey, Esq., Attorney General, R. Todd Goudy, Esq., Assistant Attorney General, Charleston, West Virginia, Attorney for the Respondent
BUNN, Justice:
Petitioner Charles Lee Finley appeals the Circuit Court of Wayne County’s January 3, 2022 order denying his motion to dismiss a count in an indictment charging him with possession of pseudoephedrine in an altered state, a felony in violation of West Virginia Code § 60A-10-4(d). Mr. Finley ultimately pled nolo contendre (no contest), via a conditional plea agreement, to attempt to possess pseudoephedrine in an altered state. He was sentenced to one to three years imprisonment for that crime. In this appeal, Mr. Finley claims that the circuit court erred in denying his motion to dismiss because (1) the charges against him violated double jeopardy, and (2) the statute criminalizing possession of altered precursors of methamphetamine does not apply when completed methamphetamine is the only substance at issue. We need not reach a conclusion re- garding the circuit court’s purported error on the motion to dismiss. Instead, we find that the circuit court plainly erred by finding a factual basis for the plea to attempt to possess pseudoephedrine in an altered state, when the evidence was that Mr. Finley possessed methamphetamine. We vacate Mr. Finley’s conviction of attempt to possess pseudoephedrine in an altered state and remand the case further proceedings.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Finley allegedly received or transferred a stolen vehicle then fled on foot from law enforcement in September 2020. After he was arrested and then released on bond, he failed to appear at the Wayne County Circuit Court to answer those charges until July 2021. When he was taken into custody for his previous failure to appear, law enforcement searched Mr. Finley and a deputy sheriff found approximately 3.3 grams of what appeared to be methamphetamine in a small bag in his shoe.
In November 2021, a grand jury returned a four-count indictment against Mr. Finley relating to the two events. Of relevance to this appeal, Count Three alleged that Mr. Finley possessed a controlled substance, methamphetamine, with intent to deliver, in violation of West Virginia Code § 60A-4-401(a)(i), while Count Four alleged that Mr. Finley possessed pseudoephedrine in an altered state, in violation of West Virginia Code § 60A-10-4(d) (the "altered precursor felony"). Counts Three and Four were felonies.
The first two counts of the indictment included Count One, receiving or transferring a stolen vehicle, in violation of West Virginia Code § 17A-8-5, and Count Two, fleeing other than in a vehicle, in violation of West Virginia Code § 61-5-17(d). While Count One was a felony, Count Two was a misdemeanor.
See W. Va. R. Crim. P. 12(b)(1) (providing that "[a]ny defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial … (1) Defenses and objections based on defects in the institution of the prosecution ….").
For Count Four, the indictment did not list subsection (d) of West Virginia Code § 60A-10-4, although the indictment tracked its language.
Mr. Finley also asserted a double jeopardy challenge to his convictions for both possession of a controlled substance with intent to deliver and possession of pseudoephedrine in an altered state. I would have found no need to address this argument as Mr. Finley's statutory interpretation challenge to West Virginia Code section 60A-10-4(d) is dispositive in this case.
Mr. Finley filed a motion to dismiss Count Four, based primarily on the evidence that a sheriff's deputy found 3.3 grams of methamphetamine in his shoe and no other substances. In his motion, Mr. Finley acknowledged that he could be found guilty of Count Three, possession with intent to deliver, depending on the success of his defense that he only possessed the methamphetamine for his personal use, a misdemeanor under West Virginia Code § 60A-4-401(c). He argued that Count Four violated double jeopardy, focusing on the fact that the State only had evidence of possession of methamphetamine and noting that, should his personal use defense be successful, the State’s charges still exposed him to a finding of guilt of both the misdemeanor crime of simple possession of methamphetamine, and the felony crime of possession of altered pseudoephedrine, a substance used to make methamphetamine. He further argued that altered precursor felony in Count Four was inapplicable because "there is no evidence that Mr. Finley knowingly possessed pseudoephedrine or another designated precursor with the intent to use it in the manufacture of methamphetamine." The circuit court denied his motion, finding that double jeopardy would not apply to the two convictions.
The parties subsequently entered into a plea agreement where Mr. Finley agreed, in relevant part, to enter conditional no contest pleas to the felony offenses of: (1) attempt to commit possession with intent to deliver methamphetamine; and (2) attempt to commit possession of pseudoephedrine in an altered state. The plea agreement described those offenses as "lesser included offenses" to Counts Three and Four of the Indictment, respectively, and noted that both offenses "carr[ied] a potential sentence of not less than one (1) nor more than three (3) years." The plea agreement provided that:
West Virginia Rule of Criminal Procedure 11(a)(2) allows a defendant to enter "a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motion" with the approval of the court and consent of the State. Pursuant to this Rule, "[a] defendant who prevails on appeal shall be allowed to withdraw the plea." W. Va. R. Crim. P. 11(a)(2). Mr. Finley also agreed to plead no contest to attempt to commit possession of a stolen vehicle, relating to Count One of the Indictment, and the State agreed to dismiss Count Two.
Under the terms of the conditional plea agreement, Mr. Finley entered no contest pleas to: (1) attempt to commit the offense of possession of a stolen vehicle; (2) attempt to commit possession with intent to deliver methamphetamine; and (3) attempt to commit possession of pseudoephedrine in an altered state. In exchange for this plea, if he were to prevail on appeal, he would be permitted to withdraw his no contest pleas to attempt to commit the drug charges and be permitted to instead enter a plea to misdemeanor simple possession.
Mr. Finley’s plea to attempt charges under West Virginia Code section 61-11-8 (2020) rather than to the substantive crimes listed in the indictment presented no impediment to this Court's resolution of the purely legal issue before us: the attempt to commit the crime is a lesser included offense of the substantive crime. See W. Va. R. Crim. P. 31(c) (stating that a criminal defendant "may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit … the offense charged[.]"); see also State v. Slater, No. 16-1129, 2017 WL 4772888 (W. Va. Oct. 23, 2017) (memorandum decision) (describing defendant’s plea to attempt to commit felony delivery of a controlled substance as a plea to "a lesser-included offense" of that felony); Ljutica v. Holder, 588 F.3d 119, 125 (2d Cir. 2009)("Because an attempt to commit a substantive crime is a lesser included offense of that substantive crime … the facts that support a conviction for the completed crime also support a conviction for attempt.").
The conditional pleas on Count [Three] and Count [Four] is [sic] being made with the consent of the State, and [Mr. Finley] reserves the right to appeal his convictions for Possession with Intent to Deliver Methamphetamine and Possession of Pseudoephedrine in an Altered State. Should Mr. Finley prevail on appeal, he shall be allowed to withdraw his NO CONTEST pleas to Count [Three] and Count [Four]. At that time he will be permitted to enter a GUILTY plea to Simple Possession, a misdemeanor, which carries a potential sentence of not less than 90 days nor more than six (6) months, or fined not more than $1,000, or both fined and confined. Furthermore, should Mr. Finley prevail on appeal, the State would agree to DISMISS Count 4 of the Indictment.
When addressing Count Four during the plea hearing, the circuit court requested that the State provide the facts "to support a conviction for Attempt to Possess Pseudoephedrine in an Altered State[.]" The State responded that a sheriff's deputy searched Mr. Finley "and discovered in his shoe what was believed to be [m]ethamphetamine," that the substance was sent to a lab, and a forensic scientist from the West Virginia State Police Laboratory would testify that "[m]ethamphetamine does, in fact, contain [p]seudoephedrine in an altered state." The court found that the State’s recitation established an adequate factual basis for Mr. Finley’s plea to Count Four and "adjudicate[d] [Mr. Finley] guilty of … Attempt to Possess Pseudoephedrine in an Altered State, in violation of West Virginia Code § 61-11-8, the lesser of Count [Four]." Mr. Finley also pled no contest to attempt to commit the offense of possession of a stolen vehicle. The circuit court sentenced Mr. Finley on December 20, 2021, to concurrent sentences for all three convictions: one to three years for attempt to commit the felony of receiving or transferring a stolen vehicle; one to three years for attempt to commit the felony of possession of a Schedule II controlled substance, methamphetamine, with intent to deliver; and one to three years for attempt to commit the altered precursor felony. This appeal followed.
This portion of the Opinion merely recites the facts in the record. Without delving into the variety of methods used to manufacture methamphetamine or considering the accuracy of the evidence before the circuit court, we note that not all methamphetamine contains pseudoephedrine. See Drug Enf’t Agency, DEA-DCT-DIR-008-21, 2020 Drug Enforcement Administration National Drug Threat Assessment 21 (March 2021) (explaining that some transnational criminal organizations "produce methamphetamine using the reductive amination method, which employs the precursor phenyl-2-propanone (P2P) instead of pseudoephedrine").
Specifically, in footnote eight of its opinion the majority states that
this case arises from a conditional plea based upon the circuit court's denial of Mr. Finley’s motion to dismiss a count of the indictment. A circuit court may not grant a defendant’s pretrial motion to dismiss an indictment on the basis of the sufficiency of the evidence or whether a factual basis for the indictment exists. See W. Va. R. Crim. P. 12(b)(1) (regarding pretrial motions). Therefore, we review Mr. Finley’s conviction for plain error based on the factual basis for his plea rather than reviewing the circuit court’s order denying Mr. Finley’s motion to dismiss, which could not raise such factual issues.
The circuit court also found a factual basis for Mr. Finley’s plea to attempt to commit possession with intent to deliver methamphetamine, supported by similar facts.
Rule 11(f) provides: "Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea."
West Virginia Code § 61-11-8, in relevant part, states:
Every person who attempts to commit an offense, but fails to commit or is prevented from committing it, shall, where it is not otherwise provided, be punished as follows:
….
(2) If the offense attempted be punishable by imprisonment in the penitentiary for a term less than life, such person shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be imprisoned in the penitentiary for not less than one nor more than three years, or be confined in jail not less than six nor more than twelve months, and fined not exceeding five hundred dollars.
The circuit court filed the related sentencing order on January 3, 2022.
II
STANDARD OF REVIEW
[1–3] Mr. Finley did not raise the factual basis of his conditional nolo contendre plea as grounds for his appeal, however, "[t]his Court’s application of the plain error rule in a criminal prosecution is not dependent upon a defendant asking the Court to invoke the rule. We may, sua sponte, in the interest of justice, notice plain error." Syl. pt. 1, State v. Myers, 204 W. Va. 449, 513 S.E.2d 676 (1998). "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, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
We use the plain error doctrine "sparingly and only in those circumstances where substantial rights are affected, or the truth-finding process is substantially impaired, or a miscarriage of justice would otherwise result." Syl. pt. 4, in part, State v. England, 180 W. Va. 342, 376 S.E.2d 548 (1988). However, this case arises from a conditional plea based upon the circuit court’s denial of Mr. Finley’s motion to dismiss a count of the indictment. A circuit court may not grant a defendant’s pretrial motion to dismiss an indictment on the basis of the sufficiency of the evidence or whether a factual basis for the indictment exists. See W. Va. R. Crim. P. 12(b)(1) (regarding pretrial motions). Therefore, we review Mr. Finley’s conviction for plain error based on the factual basis for his plea rather than reviewing the circuit court's order denying Mr. Finley's motion to dismiss, which could not raise such factual issues.
[4] Because the issue on appeal concerns the interpretation of a statute, we apply a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
III.
DISCUSSION
We address each of the plain error factors in turn. First, an error occurred, as no factual basis existed for Mr. Finley’s no contest plea to attempt to commit the altered precursor felony. Our conclusion rests on our interpretation of the second half of West Virginia Code § 60A-10-4(d) and whether the substance listed in the subsection may be completed methamphetamine rather than a substance containing altered pseudoephedrine.
[5–7] Here, the circuit court requested that the state provide a factual basis for the plea. See W. Va. R. Crim. P. 11(f) (explaining that the court "should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea"). To find a factual basis for a plea, the court must be satisfied that a factual basis for all elements of the crime exist. See United States v. Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). While a court need not have a trial at a plea hearing, the court must be satisfied that every element of the offense of conviction is met. Id. (considering the federal counterpart to West Virginia Rule of Criminal Procedure 11(f) and finding that the court "need only be subjectively satisfied that there is a sufficient factual basis for a conclusion that the defendant committed all of the elements of the offense"). See also State v. Cabell, 176 W. Va. 272, 276, 342 S.E.2d 240, 244 (1986) ("The court must also be satisfied that the plea is voluntary as required by Rule 11(d) and that there is a factual basis for it under Rule 11(f)."). The factual basis requirement "is designed ‘to protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’ " See United. States v. Mastrapa, 509 F.3d 652, 660 (4th Cir. 2007) (quoting Fed. R. Crim. P. 11 advisory committee’s notes (1966)).
[8] Here, to enter judgment on the plea to attempt to possess altered pseudoephedrine, the court should have found that two elements existed for a crime of attempt: ‘"(1) a specific intent to commit the underlying substantive crime; and (2) an overt act toward the commission of that crime, which falls short of completing the underlying crime.’ " Syl. pt. 1, in part, State v. Burd, 187 W. Va. 415, 419 S.E.2d 676 (1991) (quoting Syl. pt. 2, in part, State v. Starkey, 161 W. Va. 517, 244 S.E.2d 219 (1978), overruled on other grounds by State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995)). The underlying substantive crime was a violation of West Virginia Code § 60A-10-4(d), which criminalizes the possession of altered pseudoephedrine:
Regarding the elements of attempt, " ‘specific intent’ means that the defendant consciously intends the completion of the acts comprising the choate offense, in that completion of such acts is the defendant's purpose." 21 Am. Jur. 2d Criminal Law § 150 (2016).
any person … who knowingly possesses a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are,
or were, commercially distributed is guilty of a felony …."
However, the State only proffered evidence that Mr. Finley possessed completed methamphetamine and proffered no evidence of (1) Mr. Finley’s specific intent to possess altered pseudoephedrine, or (2) Mr. Finley’s commission of any overt acts toward the possession of altered pseudoephedrine. As explained below, under the limited circumstances of this case, the proffered facts cannot support a finding that Mr. Finley had the specific intent to commit a violation of West Virginia Code § 60A-10-4(d)—the possession of pseudoephedrine in an altered state—when the State’s only evidence was his possession of completed methamphetamine.
[9, 10] We examine the language of West Virginia Code § 60A-10-4(d) to reach our conclusion regarding the factual basis for the plea. When interpreting a statute, we first consider whether the language of the statute is plain. Syl. pt. 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959) ("When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute."). See also Syl. pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970) ("Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation."). However, if a statute is ambiguous, making it "susceptible of two or more constructions," we must construe the statute before it is applied. Sizemore v. State Farm Gen. Ins. Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (quoting Hereford v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949)). West Virginia Code § 60A-10-4(d) is susceptible of two constructions. The State argues that the plain language of the statute "envisions the prosecution of methamphetamine as an altered precursor," as technically methamphetamine can contain altered, enumerated precursors. Mr. Finley instead claims that completed methamphetamine is not an altered precursor and argues that the statute focuses on conduct relating to manufacturing methamphetamine or possessing its components. As the statute is ambiguous, we therefore must construe the second half of West Virginia Code § 60A-10-4(d).
[11, 12] When construing an ambiguous statute, first we look to the intent of the Legislature. "The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syl. pt. 8, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953). West Virginia Code § 60A-10-4(d) is located within the Methamphetamine Laboratory Eradication Act, West Virginia Code §§ 60A-10-1 to -16, which recognizes the problems relating to the "illegal production and distribution of methamphetamine" in West Virginia. W. Va. Code § 60A-10-2(a). The Act, initially passed in 2005, explains that methamphetamine "can be manufactured in small and portable laboratories," § 60A-10-2(b), and resolves that "restricting access to over-the-counter drugs used to facilitate production of methamphetamine is necessary to protect the public safety of all West Virginians." § 60A-10-2(f). The Legislature sets forth numerous crimes relating to substances—precursors—that can be used to make methamphetamine in West Virginia Code § 60A-10-4, titled "Purchase, receipt, acquisition and possession of substances to be used as precursor to manufacture of methamphetamine or another controlled substance; offenses; exceptions; penalties." A precursor, pursuant to the Act, "means any substance which may be used along with other substances as a component in the production and distribution of illegal methamphetamine." W. Va. Code § 60A-10-3(k). As explained above and relevant to this appeal, the second half of West Virginia Code § 60-10-4(d) criminalizes the knowing possession of certain substances, including altered pseudoephedrine, that individuals can use to make methamphetamine. [13, 14] When examining the statute, this Court may not "arbitrarily read into a statute that which it does not say." Syl. pt. 11, in part, Brooke B. v. Ray C, 230 W. Va. 355, 738 S.E.2d 21 (2013). Certainly, at times completed methamphetamine may contain one of the enumerated altered precursors. Yet, the second half of West Virginia Code § 60A-10-4(d) specifically punishes the knowing possession of an enumerated altered precursor: "a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed." W. Va. Code § 60A-10-4(d). Furthermore, as we have explained, the statutory scheme creating the altered precursor felony focuses on the manufacture of methamphetamine, not the finished product. The statute’s title specifically addresses the "possession of substances to be used as precursor to manufacture of methamphetamine." (Emphasis added). While subsection (d) lists substances that are common precursors used to manufacture methamphetamine, this list does not include the finished product of methamphetamine. The Legislature’s definition of precursor in the Methamphetamine Laboratory Eradication Act as a component, rather than the finished product, also supports our conclusion. See W. Va. Code § 60A-10-3(k). In sum, rather than prohibiting the possession of methamphetamine, the second portion of West Virginia Code § 60A-10-4(d) focuses on precursors and prohibits the knowing possession of enumerated altered substances used to manufacture methamphetamine. West Virginia Code § 60A-10-4(d) does not punish the possession of completed methamphetamine, and "we are obliged not to add to statutes something the Legislature purposely omitted." See Syl. pt. 11, in part, Brooke B., 230 W. Va. 355, 738 S.E.2d 21.
Although not at issue in this appeal, the first portion of West Virginia Code § 60A-10-4(d) criminalizes the knowing possession of "any amount of ephedrine, pseudoephedrine, phenylpropanolamine or other designated precursor with the intent to use it in the manufacture of methamphetamine."
[15] A statutory scheme criminalizing the possession of methamphetamine in another article of Chapter 60A of the Code bolsters our conclusion. This Court reads and applies statutes relating to the same subject matter together, " ‘so that the Legislature’s intention can be gathered from the whole of the enactments.’ " Syl. pt. 1, in part, State ex rel. Hall v. Schlaegel, 202 W. Va. 93, 502 S.E.2d 190 (1998) (quoting Syl. pt, 3, in part, Smith v. State Workmen’s Comp. Comm'r, 159 W. Va. 108, 219 S.E.2d 361 (1975)). Separate statutes punish the crimes of simple possession and possession with intent to deliver methamphetamine. West Virginia Code § 60A-4-401(c) punishes the simple possession of methamphetamine as a misdemeanor, while West Virginia Code § 60A-4- 401(a)(i) punishes the manufacture, delivery, or possession with intent to manufacture or deliver methamphetamine as a felony. Thus, the statutes criminalizing (1) simple possession and felony possession with intent to deliver completed methamphetamine and (2) the knowing possession of enumerated, altered precursors used in the production of methamphetamine are separate and distinct crimes. Reading the statutes criminalizing possession of methamphetamine and possession of precursors that create methamphetamine together shows the second half of West Virginia Code § 60A-10-4(d) only refers to substances containing the enumerated altered precursors, not completed methamphetamine.
"It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this act. Any person who violates this subsection is guilty of a misdemeanor …." W. Va. Code § 60A-4-401(c). Methamphetamine is a Schedule II controlled substance. W. Va. Code § 60A-2-206(d) (listing Schedule II controlled substances).
[16] The State’s preferred interpretation of West Virginia Code § 60A-10-4(d) transforms the misdemeanor possession of methamphetamine into a felony, if the methamphetamine was made from pseudoephedrine or another enumerated substance. We must " ‘disregard a construction’ " of the statute that would " ‘lead to injustice and absurdity.’ " Syl. pt. 2, in part, Conseco Fin. Servicing Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002) (quoting Syl. pt. 2, in part, Click v. Click, 98 W. Va. 419, 127 S.E. 194 (1925)). See also Syl. pt. 5, State v. Flinn, 158 W. Va. 111, 208 S.E.2d 538 (1974) (requiring that statutes relating to the same subject " ‘are to be read and construed together’ " (quoting Syl. pt. 1, in part, Delardas v. Morgantown Water Comm’n, 148 W.Va. 776, 137 S.E.2d 426 (1964)). Punishing the same conduct—possession of methamphetamine—as both a misdemeanor under West Virginia Code § 60A-4-401(c) and a felony under West Virginia Code § 60A-10-4(d) would lead to injustice and absurdity. The Legislature determined that simple possession of methamphetamine is a misdemeanor, while possession of methamphetamine with intent to deliver, a felony, requires proof of additional facts. See State v. Zaccagnini, 172 W. Va. 491, 500, 308 S.E.2d 131, 140-41 (1983) (explaining that possession with intent to deliver a controlled substance "is largely a factual question and conviction may be sustained under a variety of different facts" while simple possession is a misdemeanor). See also State v. Drake, 170 W. Va. 169, 173, 291 S.E.2d 484, 488 (1982) (noting courts have found that the State can prove possession with intent to deliver a controlled substance by varied circumstances, including "the quantity of the controlled substance possessed and the presence of other paraphernalia customarily used in the packaging and delivery of controlled substances"). An interpretation of West Virginia Code § 60A-10-4(d) that causes misdemeanor possession of methamphetamine to be a felony is not in harmony with the statutes criminalizing the possession, distribution, or production of methamphetamine.
[17, 18] For these reasons, we hold that, for the purposes of West Virginia Code § 60A-10-4(d) (eff. 2012), completed methamphetamine is not "a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed." Thus, the circuit court erred when it found that a factual basis existed for a plea to attempt to commit possession of pseudoephedrine in an altered state, as the only evidence before the court was Mr. Finley’s possession of completed methamphetamine. The evidence proffered by the State failed to show any specific intent by Mr. Finley to possess altered pseudoephedrine or any overt acts toward committing that crime. See Syl. pt. 1, in part, Burd, 187 W. Va. 415, 419 S.E.2d 676.
[19, 20] Second, we find that this error was plain. Two types of plain error exist. The first type of plain error applies when "the plainness of the error is predicated upon legal principles that the litigants and trial court knew or should have known at the time of the prosecution." Syl. pt. 6, in part, Myers, 204 W. Va. 449, 513 S.E.2d 676. The second type of plain error becomes "plain on appeal because the applicable law has been clarified." Id. The second type of plain error applies now that the Court has clarified the applicable law relating to West Virginia Code § 60A-10-4(d). See Syl. pt. 6, in part, Myers, 204 W. Va. 449, 513 S.E.2d 676.
[21, 22] Third, we find that the plain error affected Mr. Finley’s substantial rights because the court convicted him of attempt to commit the altered precursor felony when the evidence proffered by the State did not support a factual basis for the conviction. Finally, and similarly, the error affected the fairness and integrity of the judicial proceedings, as the factual basis found by the circuit court did not support the conviction under these circumstances. See Mastrapa, 509 F.3d at 660-61. See also United States v. Carillo, 860 F.3d 1293, 1307 (10th Cir. 2017) (determining that the lower court erred in finding a factual basis for the defendant’s plea and concluding that "[t]here is no doubt that failing to correct that error would seriously affect the fairness and integrity of judicial proceedings").
Likewise, in Nguyen v. State, 299 P.3d 683, 689 (Wyo. 2013), the Wyoming Supreme Court reversed a lower court’s finding that a factual basis existed for a plea and stated that "[o]ne of the purposes of the factual basis requirement is to protect a defendant who offers to plead guilty with an understanding of the charge but without realizing his conduct does not meet the definition of the crime charged."
To the extent that the State argues that Mr. Finley’s appeal is moot because he has discharged his sentence, we disagree. Without addressing the conditional plea agreement, we may presume that "a wrongful conviction has continuing collateral consequences." Spencer v. Kemna, 523 U.S. 1, 8, 118 S. Ct. 978, 983, 140 L. Ed. 2d 43 (1998).
IV.
CONCLUSION
For the reasons stated above, this Court vacates the November 3, 2022 order sentencing Mr. Finley and remands this matter to the Circuit Court of Wayne County for further proceedings consistent with this opinion.
Vacated and Remanded.
JUSTICE WOOTON concurs in part and dissents in part and may write separately.
WOOTON, J., concurring, in part, and dissenting, in part:
(Filed November 8, 2023)
In a decision noteworthy for its seeming lack of understanding of the way criminal law and procedure are actually practiced in West Virginia state courts, the majority undermines the principles which underlie and are the foundation for the West Virginia Rules of Criminal Procedure - in particular Rule 2 and Rule 11(a)(2) - and may have compromised the conditional plea agreement as a mechanism for challenging a circuit court’s ruling on an issue of statutory construction. Accordingly, I concur in the Court’s judgment and agree with its determination that possession of methamphetamine, standing alone, is insufficient to sustain a charge of possession of pseudoephedrine in an altered state under West Virginia Code section 60A- 10-4(d) (2020). However, I vehemently dissent from the Court’s determination that this case presented a question of fact rather than a question of law - a determination that underpins the majority’s surprising holding that an issue of statutory construction such as this cannot be raised in a motion to dismiss,1a and/or thereafter by entry of a conditional guilty plea pursuant to West Virginia Rule of Criminal Procedure 11(a)(2) (discussed infra in greater detail). The majority’s holding unnecessarily unravels the practical, common-sense procedure traditionally utilized in this State. Noted scholar and jurist Franklin D. Cleckley cautioned that to the extent the provisions of Rule 11(a)(2) are disregarded or no longer viewed as a fair and expeditious method of resolving unsettled questions, both the State and defendants will be forced to go through a jury trial to resolve a legal issue that is not dependent upon whether sufficient facts exist for a conviction - a waste of time, money and judicial resources. See State v. Lilly, 194 W. Va. 595, 605, 461 S.E.2d 101, 111 (1995) (Cleckley, J., concurring) ("By invoking Rule 11(a)(2), the parties not only eliminated the need for a protracted trial, but paid the ultimate respect to limited judicial resources and judicial economy. To be specific, the appropriate use of a conditional guilty plea by a criminal defendant serves the interests of justice by, inter alia, safeguarding the defendant’s right to appeal and promoting judicial economy. See State v. Forshey, 182 W.Va. 87, 93, 386 S.E.2d 15, 21 (1989) (forcing party to go through an unnecessary trial is a " ‘pointless and wasteful exercise’ ") (Miller, J., dissenting). (Citation omitted).").
Seemingly oblivious to these concerns, the majority invokes the plain error doctrine to resolve an issue neither raised nor argued by the parties: that the circuit court erred "by finding a factual basis for the plea to attempt to possess pseudoephedrine in an altered state, when the evidence was that Mr. Finley [‘the petitioner’ or ‘Mr. Finley’] possessed methamphetamine." That is a mischaracterization of what happened here. See text infra.. The majority unnecessarily complicates the straightforward procedure employed by defense counsel, the State, and the circuit court, whereby Mr. Finley entered a conditional guilty plea in order to seek appellate review of a purely legal question of statutory interpretation. See Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995) ("Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review.") (emphasis added); W. Va. R. Crim. P. 11(a)(2) (discussed infra in greater detail).
Use of the plain error doctrine, which the majority notes in a footnote should be used "sparingly" (surely an unintentional irony) was wholly unnecessary. I would have reversed the circuit court’s decision on the straightforward legal issue raised in Mr. Finley’s conditional guilty plea: that, as a matter of law, a charge under section 60A-10-4(d) could not lie where a defendant possessed only completed methamphetamine, and no other drugs.2a I would then have remanded this case for further proceedings consistent with the agreed-upon terms of Mr. Finley’s conditional plea agreement.
Mr. Finley was indicted by a Wayne County grand jury on four counts, including one count of possession of pseudoephedrine in an altered state. During the course of pre-trial proceedings he filed a pretrial motion to dismiss as set forth supra. The State countered that methamphetamine is "a substance containing … pseudoephedrine … in a state or form which is, or has been altered or converted from the state or form in which [this] chemical[ ] [is], or [was], commercially distributed[.]" Id. In essence, the State’s position was that there is altered pseudoephedrine in methamphetamine, and accordingly possession of completed methamphetamine necessarily means that one is also in possession of altered pseudoephedrine. The circuit court agreed with the State and denied Mr. Finley’s motion to dismiss this charge from the indictment. Thereafter Mr. Finley entered into a conditional plea agreement with the State,3a wherein he specifically reserved his right to appeal the denial of the motion to dismiss. On appeal to this Court, he presented precisely the same challenge to the statute.
It should be noted that Mr. Finley’s entry of his conditional guilty plea and the circuit court’s acceptance of the plea were entirely consistent with our established procedure:
Before accepting a conditional plea under W. Va. R. Crim. P. 11(a)(2), the circuit court and the prosecutor must assure that the pretrial issues reserved for appeal are case dispositive and are capable of being reviewed by this Court without a full trial. This requires the circuit court to make specific findings on the record of the issues to be resolved upon appeal and a further specific finding that those issues would effectively dispose of the indictment or suppress essential evidence which would substantially affect the State’s ability to
prosecute the defendant as charged in the indictment.
Syl. Pt. 1, State v. Hosea, 199 W. Va. 62, 483 S.E.2d 62 (1996) (emphasis added). Thus, after correctly finding that West Virginia Code section 60A-10-4(d) does not apply where an individual possessed only methamphetamine in its completed form, the majority’s task was straightforward: it should have found that the circuit court erred as a matter of law in denying Mr. Finley’s motion to dismiss this charge from the indictment as he should have never been charged with this crime. Instead, the majority enters into the thicket of the plain error doctrine, wherein it first determines that the circuit court erred in finding a factual basis to accept Mr. Finley’s no contest plea to attempt to possess altered pseudoephedrine. After it finds this error, the majority informs us that "[w]e examine the language of West Virginia Code § 60A-10-4(d) to reach our conclusion regarding the factual basis for the plea." Then, the majority decides that the reason there is no "factual basis" for the conditional plea is that as matter of law,
[f]or the purposes of West Virginia Code § 60A-10-4(d) (eff. 2012), completed methamphetamine is not "a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed."
The majority’s logic is baffling at best. The only way the majority can conclude that the circuit court "erred" in finding a factual basis is by first determining that a possession of methamphetamine is not also possession of a precursor in an altered state, which is a pure legal question.
In this regard, Mr. Finley argued that under West Virginia Code section 60A-10-4(d) the State may not charge an individual under that statute where the accused possessed only methamphetamine in its completed form. Unquestionably, a proper interpretation of the statute, which the majority has now found as a matter of law, compels the conclusion that the circuit court should have granted Mr. Finley’s motion to dismiss that charge as a matter of law. The issue is not whether there existed a factual basis to accept his plea, but rather whether he should have ever been placed in a position to have to plead to the crime at all. Quite obviously he should not have been.
The posture of this case is not at all unique to this Court, even though the majority suggests otherwise in a footnote.4a In cases where the circuit court has denied a motion to dismiss based on the court’s incorrect construction of a statute, the correct procedure would be to reverse and remand with directions to enter an order dismissing the indictment. See State v. Fuller, 239 W. Va. 203, 800 S.E.2d 241 (2017) (reversing and remanding for dismissal of the indictment against a prostitute upon this Court’s determination that West Virginia Code section 61-8-5(b), by its plain language, did not apply to the prostitute, but only to third parties benefitting from the prostitution). Further, on multiple occasions we have reviewed denials of motions to dismiss stemming from conditional plea agreements wherein the petitioners raised legal challenges to the statutes under which they were indicted. One such instance can be found in this Court’s opinion in State v. Soustek, 233 W. Va. 422, 758 S.E.2d 775 (2014). There, the petitioner was indicted on, among other things, an identity theft charge under West Virginia Code section 61-3-54 (2010) based on his action in signing his brother’s name on a bail agreement. Id. at 424-25, 758 S.E.2d at 777-78. He moved to dismiss that count of the indictment, arguing that he should not have been charged with that crime because a bail agreement did not constitute a "financial transac- tion." Id. at 425, 758 S.E.2d at 778. The circuit court denied the motion, after which the petitioner entered into a conditional plea agreement with the State, specifically reserving the right to appeal the denial of the motion to dismiss. Id. The single issue presented to this Court was purely a question of law: did a bail agreement constitute a financial transaction under West Virginia Code section 61-3-54? Id.. As explained in the opinion, that is a matter of statutory interpretation and nothing more. Id. at 426, 758 S.E.2d at 779. This is entirely congruent with the issue presented in the instant appeal, where we are asked to interpret the language of section 60A-10-4(d). There can be no question that had this Court ruled in the petitioner’s favor in Soustek (which we did not), the result would have been a reversal of the circuit court’s denial of the motion to dismiss. That is precisely what should have happened here.
It is clear that Soustek is neither an anomaly nor an outlier in our jurisprudence. In the recent case of State v. Mills, 243 W. Va. 328, 844 S.E.2d 99 (2020), the petitioner was indicted on the charge of being a felon in possession of a firearm under West Virginia Code section 61-7-7(b) (2016). 243 W. Va. at 332, 844 S.E.2d at 103. He moved to dismiss that charge, arguing that the statute was unconstitutionally vague and that his predicate felony (arising from a Kentucky conviction for wanton endangerment) did not constitute a "crime of violence" under the statute. Id. at 333, 844 S.E.2d at 104. The circuit court denied his motion and the petitioner subsequently entered into a conditional plea agreement with the State, reserving the right to appeal the circuit court’s denial of his motion to dismiss. Id. Once again, this Court had no trouble focusing solely on the legal questions put before us: (1) was the statute unconstitutionally vague; and (2) did a specific conviction under Kentucky law qualify as a "crime of violence" under the statute? Id. As explained above, had we ruled in the petitioner’s favor, the correct procedure would have been reversal and remand for an order dismissing that charge from the indictment.
One might be tempted to argue that these cases merely misapprehend this Court’s Rules of Criminal Procedure, as the majority seems to suggest, see supra, note 4, but that would be unavailing because the rules themselves support our previously rendered decisions. One need only look at Rule 11(a)(2), pursuant to which Mr. Finely entered into his conditional plea agreement:
With the approval of the court and the consent of the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgement, to review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
Id. (emphasis added); see also Hosea, 199 W. Va. at 63, 483 S.E.2d at 63, Syl. Pt.1. In this case, the record illustrates that Mr. Finley reserved the right to appeal the circuit court’s adverse ruling on his pretrial motion to dismiss the charge of possession of altered pseudoephedrine from the indictment. As explained supra, such a motion could clearly be resolved without resort to trial because it was based solely upon the interpretation of the statute. Moreover, the issue "effectively dispose[s] of the indictment" because it is abundantly clear that Mr. Finley’s motion to dismiss should have been granted. See id. Accordingly, our court rules and precedents confirm that this Court had the authority to rule on the circuit court’s denial of Mr. Finley’s motion to dismiss, and to reverse that denial and remand for entry of an order properly dismissing that charge from the indictment. The procedure utilized by the circuit court and by this Court in its precedents - rather than the cumbersome procedure utilized by the majority, with its suggestion that any issue of statutory construction can only be raised on a post-trial motion - is wholly consistent with West Virginia Rule of Criminal Procedure 2, which provides that "[t]hese rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.").
The majority’s chosen course in its opinion undermines each and every one of these principles by effectively eliminating the conditional plea agreement as a mechanism for challenging a circuit court’s ruling on an issue of statutory construction: if a defendant’s position on the legal issue is upheld on appeal, then ipso facto he or she did not have a factual basis for entering the plea and the parties are back to Square Zero on remand. As explained by Justice Cleckley, this will assuredly create a backlog of criminal cases for the State. Moreover, both the State and defendants will be forced to go through a jury trial in order to get a resolution of a legal issue that is not dependent upon whether sufficient facts exist for a conviction, resulting in a waste of time, money, and judicial resources. The majority’s decision to upend the procedure used in this case - a procedure with which no one had a problem - demonstrates a complete lack of respect for the ability of both the bar and the circuit court to resolve issues in an expeditious, fair, and legally sound manner.
I am also concerned that one reading the majority opinion could easily conclude that the majority is approaching the case in this unorthodox manner in order to leave open the options for what happens on remand. In this regard, the majority’s invalidation of the petitioner’s conditional guilty plea may well strip him of the benefit of that agreement, which was that if he prevailed on appeal he would be permitted to withdraw his pleas to both felony drug crimes and enter a plea to misdemeanor simple possession. There is now an open question in this case as to whether that subject conditional plea agreement still stands, though I would strongly suggest that to disregard that agreement at this juncture would severely undermine any confidence future defendants may have in the orderly workings of this state’s criminal justice system. Had the majority simply adhered to this Court’s precedents as to the manner in which similar legal issues are resolved, the circuit court and the parties would be bound by the terms of the plea agreement and any doubt as to Mr. Finley’s final disposition regarding his convictions would be laid to rest.
I turn now to the majority’s decision to eschew the established procedures outlined in our rules and our precedents, only to invoke the plain error doctrine to achieve the same ends. Specifically, the majority posits that the circuit court erred in accepting Mr. Finley’s no contest plea to attempt to commit possession of pseudoephedrine in an altered state because no factual basis existed for such a plea under West Virginia Rule of Criminal Procedure 11(f).5a While I do not disagree that there was no factual basis for Mr. Finley’s plea to the crime - how could there be when the State’s only evidence was that he possessed completed methamphetamine which is not punishable under the statute? - I fervently disagree that this Court was required to resort to plain error analysis to resolve this matter. As explained above, this Court already had authority to address the circuit court’s denial of Mr. Finley’s motion to dismiss, and in the face of that authority, the majority’s reliance on the plain error doctrine is unjustified, and frankly confusing. It is bound to result in unintended consequences, probably including unnecessary jury trials whose sole purpose will be to put issues of statutory construction in a procedural posture that will allow appeal to this Court. In short, it will inevitably lead to a "waste of prosecutorial and judicial resources." Lilly, 194 W. Va. at 606, 461 S.E.2d at 112.
For all of the foregoing reasons, I respectfully concur, in part, and dissent, in part.