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| Brenda Mae Lunsford |
The guilty pleas and prison terms of a Webster County woman who sold drugs were upheld by the West Virginia Supreme Court of Appeals in a memorandum decision issued on Tuesday, March 12, 2013.
Brenda Mae Lunsford, age 62, was arrested in 2011 for selling 15 Xanax pills in exchange for $45.00 in two separate transactions. She was also charged in another case with possession of stolen property.
Lunsford entered into a plea agreement with the State, and she later pleaded guilty to two counts of delivery of a Schedule IV controlled substance in exchange for a dismissal of the possession of stolen property charge. Before she was sentenced, Lunsford was referred to the Court's probation officer to prepare a pre-sentence report.
The probation officer assigned to the case was the brother of the victim of the stolen property that Lunsford allegedly possessed, and which charge was dismissed as part of the plea agreement. At her sentencing hearing, the Judge sentenced Lunsford to prison terms of not less than one but not more than three years on each of the two charges, to be served consecutively, for an effective sentence of not less than two but not more than six years. Lunsford's request for an alternative sentence, such as home confinement or probation, was denied.
Lunsford appealed both her guilty pleas and the sentences handed down by the Judge on four grounds. First, Lunsford argued that the Circuit Judge should have stepped aside from the case since his probation officer was related to the alleged stolen property victim. Lunsford claimed that if she had known about that victim's relationship to the probation officer, she would not have accepted the plea agreement and she would have filed a formal motion to have the Judge removed from the case. The State contended she was aware of the relationship but did not raise the issue at either her plea or sentencing hearing.
The Supreme Court rejected this first ground, stating that Lunsford failed to raise the conflict issue with the Circuit Court before appealing to the Supreme Court. In other words, Lunsford never gave the Circuit Court the opportunity to address the conflict that she later learned of before raising the issue before the Supreme Court.
Second, Lunsford argued that her $50,000.00 bail set by a Magistrate was excessive in light of her age and ties to the community. The Supreme Court rejected this ground because the issue of bail became moot after she was convicted by her own guilty pleas.
Third, Lunsford argued that the prosecutor acted improperly by not informing her of the conflict regarding the probation officer and his sister as a victim in the stolen property case. The State said the issue was irrelevant as that charge was dropped as part of the plea agreement. The Supreme Court agreed, stating that Lunsford waived this issue as well by not raising it before the Circuit Court.
Fourth, and finally, Lunsford argued that her prison sentence was excessive. She argued that "her ties to Webster County, lack of criminal history, age and infirmity, as well as the fact that she cried at the sentencing hearing as evidence of her contrition. She argues she should have been considered for an alternative sentence in lieu of incarceration, but due to 'substantial passions and prejudices' of the circuit court, she was not."
In response, the State noted that it did "not dispute the assertions made by petitioner, but counters that other factors negate them. Specifically, the State points out that over $2,000 in cash and expensive jewelry were found in petitioner’s home, despite her income allegedly being $1,432 per month, and that she was out on bond on other charges when she sold the controlled substances."
The Supreme likewise rejected this fourth ground, stating that the sentences handed down by the Circuit Court were within the statutory guidelines. "[W]e find no abuse of discretion by the circuit court sentencing petitioner to two consecutive sentences. Petitioner pled guilty to two felony counts of delivery of a controlled substance in violation of West Virginia Code § 60A-4-401(a). ... Because the sentences imposed were within statutory limits and were not based on an impermissible factor, the Court finds no error," the Court concluded.
Lunsford is currently incarcerated at the Tygart Valley Regional Jail serving the sentences issued by the Circuit Court.
Here is the link to the Court's full memorandum decision:
Registered users of the Victim Information & Notification Everyday ("VINE") program received notices today by telephone or email that the West Virginia Division of Corrections ("WV DOC") is once again providing inmate status updates to the VINE program.
