Elson Hinkle, 26, of 427 South Third Avenue, Paden City, had his probation revoked and was remanded to the Northern Regional Jail Monday morning in Wetzel County Circuit Court, thanks to abuse of Subutex while on probation.
After testimony was heard by the Honorable Judge David W. Hummel in circuit court Thursday, the case was then set for disposition on Monday morning.
"I'd just like to say I'm sorry; what I did was wrong. I have trouble with addiction," Hinkle stated when given the chance to speak to the court. "I was addicted to heroin and pain pills."
Hummel then asked what the origination of Hinkle's addiction was. "It started with pain pills . . . then I got hooked on heroin," Hinkle replied. "I had been prescribed Percocet for a while. I lost my insurance and started getting them off the street."
Defense Attorney Kevin Neiswonger argued that his client has remained employed as a carpenter and remained drug free while on home confinement. "(Chief Probation Officer) Lantz clearly testified that this incident was Mr. Hinkle's sole problem," Neiswonger added. He further stated that Lantz had received a negative drug screen from Hinkle last week. "It'd be consistent with his testimony that that was the last time he used . . . He volunteered the name of the individual of where he purchased Subutex. I think, in his mind, it's very realistic that while it wasn't proper that he used Subutex on probation, he didn't look upon it as a narcotic . . . I think it is a classic case that drugs has seriously interfered with his life." Neiswonger added that he thought the court should grant Hinkle leniency. "It appears he is making an effort to try."
One issue brought up by the court was the fact that, at the hearing on Jan. 31, a baby was mentioned as being present at the time Hinkle was caught with Subutex. Sheriff's Deputy Randy Adams was then called to the stand and testified that at the time he arrived at Hinkle's residence, he could see a baby through the screen of the door. "Two mattresses were on the floor, a baby was laying in between those two mattresses," Adams testified. "We entered the residence because we saw the baby laying there, and we didn't get a response from Hinkle." Adams added that he believed the baby belonged to Hinkle's girlfriend. Neiswonger argued that the child was not mentioned at the last hearing by Adams. "You didn't say why you went in the house at the last hearing. There was no mention of a child or a baby at the last hearing, as to why you went in the house."
"My position is that Hinkle's probation should be revoked," Haught argued. "He should be remanded for his original sentence of one to five (years). He was given the privilege of probation. I don't think probation is something we should give lightly. It's something that we consider strongly before granting. It's a second chance for individuals who should try to get their life in order. Mr. Hinkle is now before the court asking for a third chance, and the state believes that that is inappropriate."
Haught added, "I would also point out that I don't think he was truthful in his testimony. I think it was very contradictory in when he started using Subutex during probation and when he stopped using Subutex. I would characterize him as lying. There were statements he made under oath, and statements he is making now. He lied, which is a separate criminal offense."
Furthermore, Haught added, "My problem with Mr. Hinkle is that, as with many probationers, they don't seem to get it. They've been given a second chance. They have the opportunity to seek treatment with the probation officer and with the court. If Neiswonger had called me and told me that he had a serious drug problem and needed to get him into treatment, we would've made efforts to do that. But they didn't do that. He went out and broke the law again by getting this Subutex."
Finally, Haught added, "Judge Madden used to say, 'You have to hit rock bottom before you are able to come back up. I think that perhaps that is the situation with Mr. Hinkle. I do not believe that sending him to prison is throwing him away. I believe that particularly with some of these drug abusers, that they have to hit rock bottom, where they are not going to be able to get this substance. They are going to have to get themselves clean. They need to decide to pull themselves out of that cesspool they are in. I mean that in terms of people they are associating with . . . If you spend your time in the drug culture, you are going to be influenced by that. I believe that based on his violation, based on the fact that he lied to us, he should be remanded to serve his sentence."
"Mr. Hinkle . . . No bones about it, they want to send you to the penitentiary, for at least a year," Hummel stated before asking Hinkle if he had anything else to say to the court.
Hinkle reaffirmed that he was sorry for what he had done. "I got my family . . . That's all I care about," he said. "I'm going to have to quit hanging out with those people," he concluded.
Hummel than began his closing remarks: "I think it is taking place down in the legislature as we speak today . . . But the justice reinvestment people are down there talking to the legislature, and there really has to be a comprehensive intellectual plan to address the plague that exists in West Virginia of illegal use and abuse of drugs. If, in fact, a gentleman is revoked of probation for drug use and he's placed in jail or prison, more likely than not, without rehab or counseling, we are going to have an addict back on the streets. That is why there has to be this comprehensive plan."
Hummel added that at the time of sentencing Hinkle did request drug counseling. "I don't know if that was followed through by the court," he stated, but added, "It's a two-way street." He stated that if Hinkle did not get drug counseling, as requested, he should have brought it to his probation officer's attention.
"We heard testimony by Hinkle. He said he used Subutex throughout the term of his probation, maybe going in to the time he was on home incarceration," Hummel continued. "His term is used. It was clearly abuse. There was no medical attention or treatment by which he used Subutex. He used it and abused it . . . Mr. Hinkle has been candid on many things but perjured himself on others."
"The fact that there was a child present at the home, or under supervision at the time he shot up," Hummel continued, "is more than just a little concerning . . . As a sub-part of this order, the court is going to direct a copy of the order to DHHR to investigate abuse and neglect at this household, to determine who are the biological parents and who has rights in regard to this in fact child. Further testimony, and basis for this investigation, is that this gentleman was wholly using and abusing drugs in the presence of this child. More than 30 syringes were available for this child to get to. The DHHR shall do an investigation into this situation."
Hummel then brought up the need for West Virginia, through the legislature, to address the need of assisting addicts who want help and want to change. He referenced daily report centers who offer actual counseling and only cost $150,000 a year to operate, a small amount in comparison to the large costs associated with incarceration.
In regards to Hinkle though, Hummel stated, "He abused and lied and had a child present. He didn't bring his abuse or addiction to the probation officer's attention to seek help. So I think he had an opportunity, squandered it, and lied to the court along the way. So at this time, the court does impose the one to five years in the penitentiary for men." Hinkle was given credit for six months that he served on home confinement.
Hinkle was originally sentenced to one to five years in the West Virginia Penitentiary for Men on Sept. 20, 2011, for one count of information of conspiracy to deliver a controlled substance (heroin). However, pursuant to a plea agreement, the execution of this sentence was suspended for two years supervised probation, six months of which would be served on home confinement.
In a separate matter, Clark Henry Floyd III, 19, was granted one year of probation by the court, through an agreement reached in magistrate court.
Neiswonger explained the special circumstances to the court. "We reached an agreement in magistrate court. (Floyd) pleaded guilty to brandishing a weapon," said Neiswonger. "If you would look into the facts of the case, you could see an altercation between Floyd and other individuals. He pulled a knife and threatened one of the other individuals involved. They recommended Floyd do some jail time. We agreed that a year of (Chief Probation Officer) Lantz's strict supervision would help avoid any other problems."
Neiswonger added, "He reported that he hasn't been in trouble before. This is his first incident with the law. He's doing well in school. He is still in high school. Probation would help him better."
Haught explained that the state had no objection to such an agreement, but added, "We want to ensure that he'll stay in school and attend school. Mr. Neiswonger is correct in that he doesn't have any prior record as an adult, so therefore, based on this particular incident, based on the fact he is still in school, we want to impress on him the need to attend school." Haught also stressed the fact that Floyd is still 19 and should be not be using alcohol. He is also not to use alcohol and tobacco products in school. "I want to remind him of that, and especially the alcohol, because I think that is the problem."
"I want to graduate and get a job and do right," Floyd responded when ordered by Hummel to convince him that he would not commit a crime while on probation." Hummel then granted the petition for probation and imposed, as a specific condition, that Floyd attend school and not have any unexcused absences. Hummel added that Floyd obtain a copy of the student code of conduct and "read it and abide by it."