STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
State of West Virginia, November 19, 2020
released at 3:00 p.m.
Plaintiff Below, Respondent EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 19-0109 (Cabell County 17-F-14 and 18-F-275)
Joshua Dwayne Plante,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Joshua Plante, by counsel A. Courtenay Craig, appeals from the January
11, 2019, order imposing a life sentence and the January 24, 2019, amended order of
commitment entered by the Circuit Court of Cabell County sentencing him upon his
conviction of possession with intent to deliver a controlled substance to a term of
imprisonment of one to fifteen years and for his conviction of third offense of a felony
under West Virginia Code § 61-11-18(c) (2000),1 our recidivist statute, a life sentence with
mercy to run concurrent with the first sentence imposed. Respondent State of West Virginia
(“the State”), by counsel Scott E. Johnson, filed a response. On appeal, petitioner argues
that insufficient evidence was presented to the jury to uphold his conviction of possession
with intent to deliver a controlled substance and that the imposition of a recidivist life
sentence is constitutionally disproportionate to his conduct.
After considering the parties’ written and oral arguments, as well as the record on
appeal and the applicable law, this 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.
On June 19, 2016, petitioner was arrested at the home of his former girlfriend,
Chandra Harmon, on a warrant for murder. At the time he was arrested, petitioner was
found to be in possession of approximately $100 and approximately three grams of heroin.
1
The Legislature amended West Virginia Code § 61-11-18, effective June 5, 2020,
making substantial changes to the recidivist statute. The amended statute, however, is not
applicable to the instant case.
1
Based upon this possession, law enforcement applied for and received a warrant for the
petitioner’s residence, 325 Olive Street, Huntington, West Virginia, which he shared with
his sister, Shaina, and which he registered as his residence with federal probation. 2 Police
officers with the Huntington Police Department executed the warrant and recovered digital
scales, multiple cell phones, cocaine base, heroin, sandwich baggies, $320, multiple guns,
and ammunition, all located in various places in the home.
Petitioner was indicted on one count of murder,3 and one count of possession with
intent to deliver.4 The two counts were severed by the circuit court and the petitioner was
tried first on the possession with intent to deliver count.
Petitioner’s trial began on August 6, 2018. Prior to selecting a jury, the circuit court
read the following stipulations to the jury, which had been agreed to by both the State and
petitioner: 1) the exhibits of physical evidence to be introduced, including but not limited
to the drugs, guns, ammunition and digital scales, were admissible without the State
establishing a chain of custody; 2) petitioner was lawfully arrested by the Huntington
Police Department on an unrelated matter and was lawfully searched incident to this arrest;
3) petitioner resided at 325 Olive Street, Huntington, Cabell County, West Virginia, at the
time of his arrest; 4) petitioner’s residence at 325 Olive Street, Huntington, West Virginia,
was lawfully searched and the items therein were lawfully seized by the Huntington Police
Department.
The witnesses who testified for the State included Det. Stephen Maniskas with the
Huntington Police Department. Det. Maniskas testified that on June 19, 2016, he was
contacted by Det. Dakota Dishman, also with the Huntington Police Department, who gave
him the address of petitioner’s former girlfriend and asked him to go to that address to be
on the lookout for petitioner because he was wanted on an unrelated murder charge. 5 The
2
A search warrant was also executed at petitioner’s former girlfriend’s residence
where he was arrested, but no contraband was found.
3
The murder count is wholly unrelated to the possession with intent to deliver count,
which is the subject of the instant appeal. There were no facts regarding the murder count
in the appendix record.
4
Petitioner’s sister was jointly charged with him on this count. Petitioner was not
charged for the heroin he possessed at the time of his arrest.
5
Det. Dishman also testified and corroborated the testimony of Det. Maniskas in
this regard. Det. Dishman also obtained the search warrant for petitioner’s residence,
which included searching for items related to possession with intent to deliver. Det.
Dishman stated that there was no evidence that the heroin found on petitioner at the time
he was arrested was the same heroin seized from petitioner’s residence.
2
detective, along with other detectives, went to the address and undertook surveillance. The
officers observed petitioner leaving the residence and proceeded to arrest him. Det.
Maniskas testified that petitioner was searched and money, three grams of heroin, a cigar
box, as well as several other items were found. Det. Maniskas testified that three grams of
heroin is not consistent with personal use. According to Det. Maniskas, a typical dosage
unit for heroin is a tenth or two-tenths of a gram. Thus, the three grams of heroin found on
petitioner represented about thirty doses. Moreover, petitioner had no other items on his
person indicating personal use such as needles, spoons, or tie-off material or evidence that
he was snorting. Det. Maniskas testified that petitioner did not have the appearance of a
heroin addict.
Following petitioner’s arrest, the police obtained and executed a search warrant on
his residence. Det. Maniskas testified that as a result of this search officers seized digital
scales, multiple cell phones, a baggy containing heroin, a baggy containing cocaine base,
other sandwich baggies, multiple firearms, including pistols and rifles with live
ammunition, and $320. Det. Maniskas testified that the digital scales were found in the
living room, along with two cell phones. A third cell phone was found on the porch. Heroin
was located in the kitchen. Various guns, including a Glock pistol and an AK-47, along
with cocaine, were found in one of the bedrooms. Det. Maniskas explained that the
presence of digital scales, plastic baggies, money, firearms, and multiple cell phones are
indicative of an intent to deliver. The State specifically asked the detective, “[i]n your
experience as investigating drug cases, with those amount of items in your house, no indicia
of personal use on you and the amount of drugs he had on him, does that lend itself more
to personal use or intent to deliver?” Det. Maniskas answered, “[i]ntent to deliver, sir.”
The detective was also questioned regarding whether suspected drug dealers respect
bedroom boundaries and whether a drug dealer’s bedroom is the only place where evidence
would be located. Det. Maniskas stated that it is typically “[t]hroughout the residence.”
He further testified that sometimes evidence is located in a certain spot and other times it
is “strewn throughout the residence[,]” including children’s bedrooms.
The State also called Huntington Police Lt. David Castle, who supervised the
forensic investigations unit. Lt. Castle corroborated Det. Maniskas’ testimony as to the
items found at petitioner’s residence and where the items were located. During cross-
examination, Lt. Castle added that firearms and cocaine were found in what appeared to be
a female’s bedroom.6
Petitioner presented testimony from his mother, Carmon Plante. Ms. Plante stated
that the reason her son listed his sister’s residence, the Olive Street address, as his official
residence was because he was on probation; however, petitioner also spent time at her home
and other places, including his former girlfriend’s home and the home of another woman
6
At the close of the State’s case, petitioner moved the circuit court for a judgment
of acquittal, which was denied.
3
named Elizabeth Bolton. Ms. Plante testified that she had given her son “at least $2,000”
to purchase clothes and other items when he returned after being released from
incarceration. She also stated that she and her son had been at his residence the day before
his arrest and she did not see any contraband in the home.
Petitioner next called Chandra Harmon, his former girlfriend, who testified that
petitioner spent most nights at her residence, which is where he was initially arrested.7
At the close of all the evidence, the case was submitted to the jury. The jury found
petitioner guilty of possession of heroin with intent to deliver.
Immediately after the jury returned its verdict, the State filed a Recidivist
Information. In addition to the above-mentioned conviction, the State charged petitioner
with having previously been convicted of the federal felony offense of possession with
intent to distribute cocaine base and the federal felony offense of possession of a firearm
not registered to defendant in the National Firearms Registration and Transfer Record.
Regarding his prior federal felonies, petitioner was convicted in federal court on October
19, 2009, for possession with intent to distribute cocaine base. Less than six months after
being released from federal custody for this conviction, petitioner was convicted of
possession of firearms not registered to him. Petitioner was accused of trafficking firearms
and admitted to “selling a .22 pistol, a .22 rifle, a 9 mm pistol, and a modified shotgun.”
He was sentenced to seventy months in prison followed by three years of supervised release
for the firearms conviction. It was less than a month after being released from federal
custody for his second conviction that he was arrested on the charges in the instant appeal.
On December 4, 2018, petitioner’s counsel admitted to the circuit court that
petitioner had “no good faith reason to suggest that [the petitioner] is not the person that
was previously convicted twice before he was convicted this time.” Petitioner, however,
contended that none of his three convictions (the triggering State felony or the two federal
felonies) were crimes of violence so that imposition of a life recidivist sentence was
constitutionally impermissible.
The circuit court ordered the parties to brief the issue of the constitutional
permissibility of imposing a life recidivist sentence on the petitioner. After the issue was
7
Further, as part of petitioner’s defense that the drugs and contraband found in his
residence did not belong to him, petitioner, in cross-examination of Det. Dishman, also
tried to establish that other individuals had been at his residence prior to the search. Det.
Dishman stated that in the prior twenty-four hours before the search there was surveillance
video taken outside the residence that showed two unidentified African American males
“associated with that residence within 24 hours of that search.”
4
briefed, the circuit court held a hearing on January 8, 2019. During the hearing, petitioner
admitted that he was the same individual named in the information. By order entered on
January 11, 2019, the circuit court imposed a life recidivist sentence on petitioner.
Thereafter, on January 24, 2019, the circuit court entered an amended order of
commitment. It is from this order that petitioner appeals.
Petitioner raises two assignments of error. The first alleged error involves the
sufficiency of the evidence to support petitioner’s conviction for possession with intent to
deliver heroin. We apply the following standard of review to this issue:
The function of an appellate court when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether
such evidence, if believed, is sufficient to convince a
reasonable person of the defendant’s guilt beyond a reasonable
doubt. Thus, the relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime proved beyond a reasonable doubt.
....
A criminal defendant challenging the sufficiency of the
evidence to support a conviction takes on a heavy burden. An
appellate court must review all the evidence, whether direct or
circumstantial, in the light most favorable to the prosecution
and must credit all inferences and credibility assessments that
the jury might have drawn in favor of the prosecution. The
evidence need not be inconsistent with every conclusion save
that of guilt so long as the jury can find guilt beyond a
reasonable doubt. Credibility determinations are for a jury and
not an appellate court. Finally, a jury verdict should be set
aside only when the record contains no evidence, regardless of
how it is weighed, from which the jury could find guilt beyond
a reasonable doubt. To the extent that our prior cases are
inconsistent, they are expressly overruled.
Syl. Pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We further
held that
[w]hen a criminal defendant undertakes a sufficiency
challenge, all the evidence, direct and circumstantial, must be
viewed from the prosecutor’s coign of vantage, and the viewer
5
must accept all reasonable inferences from it that are consistent
with the verdict. This rule requires the trial court judge to
resolve all evidentiary conflicts and credibility questions in the
prosecution’s favor; moreover, as among competing inferences
of which two or more are plausible, the judge must choose the
inference that best fits the prosecution’s theory of guilt.
Syl. Pt. 2, State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996).
Relying on State v. Dudick, 158 W. Va. 629, 213 S.E.2d 458 (1975), petitioner
argues that there was insufficient evidence to support his conviction for possession with
intent to deliver. In Dudick, the Court held in syllabus points three and four:
In West Virginia mere physical presence on premises in
which a controlled substance is found does not give rise to a
presumption of possession of a controlled substance, but is
evidence to be considered along with other evidence
demonstrating conscious dominion over the controlled
substance.
The offense of possession of a controlled substance also
includes constructive possession, but the State must prove
beyond a reasonable doubt that the defendant had knowledge
of the controlled substance and that it was subject to
defendant’s dominion and control.
Id. at 630, 213 S.E.2d at 460, Syl. Pts. 3 and 4.8 Petitioner contends that the State failed to
present direct evidence that he had knowledge of the drugs or any of the items found at his
residence, and further failed to prove that he exercised dominion and control over the
heroin. Petitioner also argues that the State did not even show that he was “ever in the
residence at the same time the charged heroin was.” He argues that not only had his mother
failed to observe any contraband at his home prior to the search and his arrest, but that there
were other individuals at his home within twenty-four hours of the search who could have
possessed the drugs.
8
Significantly, in Dudick, unlike the instant case, substantial evidence was
introduced that, although the defendant had paid rent on the apartment where marihuana
was found, the defendant did not live there, and had moved all of his belongings to a
friend’s apartment where he resided. 158 W. Va. at 643, 213 S.E.2d at 466.
6
Petitioner was charged with possession with intent to deliver heroin, which requires
that the State prove that he unlawfully and feloniously possessed a Schedule I narcotic
controlled substance, i.e. heroin, with intent to deliver the controlled substance to another
person. See W. Va. Code § 60A-4-401 (providing in relevant part, that “it is unlawful for
any person to . . . deliver, or possess with intent to . . . deliver, a controlled substance.”).9
In State v. Drake, 170 W. Va. 169, 291 S.E.2d 484 (1982), we held that “possession with
intent to deliver a controlled substance can be proven by establishing a number of
circumstances among which are the quantity of the controlled substance possessed and the
presence of other paraphernalia customarily used in the packaging and delivery of
controlled substances.” Id. at 170, 291 S.E.2d at 485, Syl Pt. 4, in part.
In the instant case, the State introduced evidence that when petitioner was initially
arrested, he possessed three grams of heroin,10 which Det. Maniskas testified was an
amount inconsistent with personal use but represented about thirty doses. The detective
further testified that petitioner did not have the appearance of a heroin addict and did not
have any other items indicating personal use of drugs, such as needles, spoons or tie-off
material. Petitioner stipulated to the jury that he resided at 325 Olive Street in Huntington,
that his residence was lawfully searched and that the items and contraband found therein,
including a baggy containing heroin, a baggy containing cocaine base, multiple firearms,
including pistols and rifles with live ammunition, multiple cell phones and $320 were
lawfully seized. Det. Maniskas stated the items seized were indicative of intent to deliver.
Based upon all the evidence, taken as a whole and in a light most favorable to the State,
there was sufficient evidence to support petitioner’s conviction of possession with intent
to deliver.
9
The Legislature amended West Virginia Code § 60A-4-401, effective June 5,
2020; however, the amendments do not affect this case.
10
In his brief, petitioner repeatedly refers to the three grams of heroin which were
found on his person when he was first arrested, but for which he was not charged, as
“404(b) evidence.” See W. Va. R. Evid. 404(b). The entirety of his argument on this point
is contained in two short sentences: “404(b) specifically prohibits the use of conduct to
show Mr. Plante acted in conformity with the charged conduct. There was nothing to
suggest a pattern, motive, or lack of mistake, and no legally required uses by the State were
identified.” However, petitioner raises no assignment of error regarding this evidence and
there is no development of his two-sentence set forth above. See State v. Lilly, 194 W. Va.
595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (stating that “appellate courts frequently
refuse to address issues that appellants . . . fail to develop in their brief.”). Further,
petitioner failed to object to this evidence before the circuit court and, therefore, any
argument related to Rule 404(b) is waived. See Coleman v. Sopher, 201 W. Va. 588, 614,
499 S.E.2d 592, 618 (1997) (McHugh, J., concurring); see also W. Va. R. App. P. 10(c)(7).
7
Petitioner’s second alleged error concerns whether the circuit court’s imposition of
a recidivist life sentence was constitutionally disproportionate. Sentencing orders are
reviewed “‘under a deferential abuse of discretion standard, unless the order violates
statutory or constitutional commands.’ Syllabus Point 1, in part, State v. Lucas, 201 W.Va.
271, 496 S.E.2d 221 (1997).” Syl. Pt. 1, State v. Kilmer, 240 W. Va. 185, 808 S.E.2d 867
(2017).
At its core, petitioner’s somewhat convoluted argument is that unless his conduct
involves “actual violence,” the imposition of a recidivist life sentence is unconstitutionally
disproportionate. He contends that “West Virginia has never legislated or enunciated a
bright-line rule regarding what offenses require imposition of a life-recidivist sentence. In
fact, a majority of the jurisprudence overlooks what is the closest to a bright-line standard
regarding the matter: the presence of, threat of, or use of violence.” Petitioner claims that
this lack of any bright-line rule requiring “evidence of violence” has allowed the Court to
find “non-violent heroin offenses” to suddenly be violent offenses. In this regard, petitioner
focuses upon the Court’s countervailing decisions in State v. Lane, 241 W. Va. 532, 826
S.E.2d 657 (2019), and State v. Norwood, 242 W. Va. 149, 832 S.E.2d 75 (2019), which
were rendered just two months apart. In Lane, the Court reversed a recidivist life sentence,
determining that the final triggering felony committed by the petitioner therein, which was
the delivery of four Oxycodone pills as part of a controlled buy, did not involve any actual
or threatened violence. 241 W. Va. at 539, 826 S.E.2d at 664. In Norwood, however, we
concluded that the final triggering offense of delivery of the controlled substance heroin
supported the imposition of a recidivist life sentence. 242 W. Va. at 158, 832 S.E.2d at 84.
The Court found that “[t]he drug transaction itself did not directly result in actual violence.
However, due to the nature of the drug transaction, and the drug that was the subject of the
transaction, this Court concludes that there was an inherent threat of violence.” Id. Based
upon these divergent resolutions, petitioner argues that it was error for the circuit court to
impose a recidivist life sentence because he never committed a crime of violence.11
11
Petitioner also argues, relying upon the recent United States Supreme Court’s
decisions in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, 138
S.Ct. 1204 (2018), which found under principles of statutory construction that two separate
federal statutes were void for vagueness, that “without a precise definition of a crime of
violence, any subsequent attempt to make ‘violent’ crimes which are not inherently so, or
factually contain actual violence, merely because they show a perceived potential for
violence is vague, ambiguous, an arbitrarily enforced.” In other words, he argues that if
his conduct in the instant case does not arise to “actual violence under West Virginia law,
the Court’s test in Norwood is too vague and arbitrary.”
We find this argument unavailing for two significant reasons. First, we have already
determined that the language of our recidivist statute, West Virginia Code § 61-11-18, is
plain and unambiguous. See State ex rel. Appleby v. Recht, 213 W. Va. 503, 519, 583
8
Critical to the resolution of the issue before us is the case of State v. Hoyle, 242 W.
Va. 599, 836 S.E.2d 817 (2019), cert. denied, 140 S. Ct. 2586 (2020), which was decided
after the filing of the parties’ respective briefs.12 In Hoyle, the petitioner was given a
recidivist life sentence based upon convictions for kidnapping and sexual assault in the
second degree (considered a single crime by the circuit court), first offense failure to
register as a sex offender, and second offense failure to register as a sex offender. The
petitioner claimed that the imposition of a recidivist life sentence for the triggering felony
offense of second offense failure to register under the West Virginia Sex Offender Act,13
was unconstitutionally disproportionate because failure to update was an offense that
neither involved actual or threatened violence nor imposed “some substantial impact upon
the victim such that harm results.” See 242 W. Va. at 615, 836 S.E.2d at 833. We agreed
with the petitioner in Hoyle, finding that his life recidivist sentence was unconstitutionally
disproportionate. Id. at 616, 836 S.E.2d at 834.
S.E.2d 800, 816 (2002)(quoting State ex rel. Chadwell v. Duncil, 196 W.Va. 643, 647, 474
S.E.2d 573, 577 (1996))(providing “[w]e have previously recognized that West Virginia
Code § 61-11-18 is ‘plain and unambiguous. . . .’”). Second, neither Johnson nor Sessions,
the Supreme Court decisions relied upon by petitioner, involve a recidivist statute, and the
principles of statutory construction contained in those cases are inapplicable to resolve the
issue presented herein: whether, under the facts and circumstances of this case, the
imposition of a life sentence under our recidivist statute is constitutionally
disproportionate.
We also decline the State’s invitation to discard all of our jurisprudence regarding
the application of West Virginia’s recidivist statute and to hold that the “the federal gross-
disproportionality test under the Eighth Amendment is the only test to be applied by West
Virginia State Courts in addressing claimed disproportionate sentencing.” See Ewing v.
California, 538 U.S. 11, 23 (2003) (quoting, in part, Harmelin v. Michigan, 501 U.S. 957,
1001 (1991) (Kennedy J., concurring in part and concurring in judgment) (quoting, in part,
Solem v. Helm, 463 U.S. 277, 288 (1983) (“The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it forbids only extreme sentences that
are ‘grossly disproportionate’ to the crime.”).
12
Petitioner acknowledged to the Court during oral argument that the Hoyle decision
has resolved the conflict between Lane and Norwood. Further, this Court has repeatedly
found that “[c]oncededly, the general rule in this country is to apply new law retroactively
to cases that were pending on direct appeal at the time the new rule was adopted. Thus,
appellate courts are obliged to apply the law as they find it at the time of the judgment.”
State v. Blake, 197 W. Va. 700, 711-12, 478 S.E.2d 550, 561-62 (1996).
13
See W. Va. Code §§ 15-12-1 to -10.
9
In reaching this conclusion in Hoyle, the Court began its examination of whether
the recidivist life sentence was constitutionally disproportionate by first looking at the
relevant statute, which is where we begin our review in the instant case. West Virginia
Code § 61-11-18(c) provides for the imposition of a life sentence “[w]hen it is determined
. . . that such person shall have been twice before convicted in the United States of a crime
punishable by confinement in a penitentiary, the person shall be sentenced to be confined
in the state correctional facility for life.” Id.; accord Hoyle, 242 W. Va. at 614, 836 S.E.2d
at 832.
We first recognized our recidivist statute as “among the most draconian in the
nation[]” in Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205(1981), however,
we have upheld the statute on numerous occasions against constitutional challenges. Id. at
536, 276 S.E.2d at 213; see, e.g., State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980)
(cruel and unusual punishment/proportionality challenge); Martin v. Leverette, 161 W. Va.
547, 244 S.E.2d 39 (1978) (equal protection challenge).
We reiterated the Wanstreet holding, in Hoyle, as follows:
“While our constitutional proportionality standards
theoretically can apply to any criminal sentence, they are
basically applicable to those sentences where there is either no
fixed maximum set by statute or where there is a life recidivist
sentence.” Syllabus Point 4, Wanstreet v. Bordenkircher, 166
W. Va. 523, 276 S.E.2d 205 (1981).
242 W. Va. at 603, 836 S.E.2d at 821, Syl. Pt. 10. Following Wanstreet, we adopted the
following test to use in ascertaining whether a life recidivist sentence is appropriate under
a constitutional proportionality challenge:
“The appropriateness of a life recidivist sentence under
our constitutional proportionality provision found in Article
III, Section 5, will be analyzed as follows: We give initial
emphasis to the nature of the final offense which triggers the
recidivist life sentence, although consideration is also given to
the other underlying convictions. The primary analysis of these
offenses is to determine if they involve actual or threatened
violence to the person since crimes of this nature have
traditionally carried the more serious penalties and therefore
justify application of the statute.” Syllabus Point 7, State v.
Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981).
Hoyle, 242 W. Va. at 603, 836 S.E.2d at 821, Syl. Pt. 11.
10
Since Beck, there had been little development in our analytical approach undertaken
to determine whether a recidivist life sentence is constitutionally proportionate until Hoyle.
In Hoyle, with specific emphasis on the inconsistent decisions reached by the Court in
Norwood and Lane, discussed supra in greater detail, we recognized the need for
consistency in our law. 242 W. Va. at 615, 836 S.E.2d at 833. In order to correct the
Lane/Norwood conflict, we held in syllabus point twelve of Hoyle that
[f]or purposes of a life recidivist conviction under West
Virginia Code § 61-11-18(c), two of the three felony
convictions considered must have involved either (1) actual
violence, (2) a threat of violence, or (3) substantial impact upon
the victim such that harm results. If this threshold is not met, a
life recidivist conviction is an unconstitutionally
disproportionate punishment under Article III, Section 5 of the
West Virginia Constitution.
242 S.E.2d at 603, 836 S.E.2d at 821, Syl. Pt. 12.
Applying the Hoyle test to the facts of this case, we conclude that petitioner’s
recidivist life sentence must be upheld. The triggering felony of possession with intent to
deliver heroin is a crime that involves “substantial impact upon the victim such that harm
results.” Id.; see State v. Gaskins, No. 18-0575, 2020 WL 3469894, at *4 (W. Va. June 25,
2020) (memorandum decision) (finding “petitioner’s prior convictions of delivery of a
controlled substance, specifically cocaine, has a substantial impact on the victim of the
crime.”). Further, petitioner’s prior felony conviction of the federal felony offense of
possession with intent to distribute cocaine base, like his triggering felony, involves
“substantial impact upon the victim such that harm results.” Id. at 603, 836 S.E.2d at 821,
Syl. Pt. 12. Finally, petitioner’s conviction for possession of a firearm not registered to
defendant in the National Firearms Registration and Transfer Record unquestionably
involves a serious crime that endangers the public. This conviction therefore also involves
a threat of violence, or substantial impact upon the victim such that harm results under
Hoyle. Id. Accordingly, we conclude that the sentence imposed by the circuit court was
not an unconstitutionally disproportionate punishment under Article III, Section 5 of the
West Virginia Constitution.
For the foregoing reasons, we affirm.
Affirmed.
11
ISSUED: November 19, 2020
CONCURRED IN BY:
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
CONCURRING AND WRITING SEPARATELY:
Chief Justice Tim Armstead
Chief Justice Armstead concurring:
The petitioner has raised two assignments of error in this case. First, he challenges
whether there was sufficient evidence to support his conviction for possession with the
intent to deliver heroin. The majority opinion sets forth, in great detail, the evidence that
was introduced at trial to prove the Petitioner’s guilt of this charge. I fully concur with the
majority’s holding that “[b]ased upon all the evidence, taken as a whole and in a light most
favorable to the State, there was sufficient evidence to support petitioner’s conviction of
possession with intent to deliver.”
In his second assignment of error, petitioner challenges whether the circuit court’s
imposition of a recidivist life sentence was constitutionally disproportionate. I concur with
the majority’s decision insofar as it upholds the circuit court’s imposition of a recidivist
life sentence.14 I write separately because I firmly believe that the imposition of the
recidivist life sentence in this case is proper pursuant to the clear language of the recidivist
statute, separate and apart from the test established in Hoyle.
West Virginia Code § 61-11-18 (2000) provides, in pertinent part:
(c) When it is determined, as provided in section nineteen of
this article, that such person shall have been twice before
convicted in the United States of a crime punishable by
14
I do not disagree with the finding within the decision that, applying the test set
forth in State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019), the Petitioner’s prior
offenses meet such standard and his recidivism conviction must be affirmed. However, as
set forth in this separate opinion, I believe the true standard that should be applied is that
standard set forth in the statute itself.
12
confinement in a penitentiary, the person shall be sentenced to
be confined in the state correctional facility for life.
While the Court, has repeatedly modified the standard to be applied in imposing a
recidivist sentence, the language of the statute is clear and unambiguous. “A statutory
provision which is clear and unambiguous and plainly expresses the legislative intent will
not be interpreted by the courts but will be given full force and effect.” Syl. Pt. 2, State v.
Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). “Where the language of a statute is plain
and unambiguous, there is no basis for application of rules of statutory construction; but
courts must apply the statute according to the legislative intent plainly expressed herein”
Syl. Pt. 1, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448 (1965).
As the majority decision points out, this Court has, over the past four decades, issued
a number of opinions imposing additional qualifications, none of which are included in the
express language of the recidivist statute, that must be met for the imposition of recidivist
sentences. As I noted in my dissent in State v. Lane, I believe the recidivist statute should
be applied as written and that the additional requirements imposed in Wanstreet and its
progeny, including State v. Beck15 and Hoyle are beyond the scope of the statutory
requirement. See State v. Lane, 241 W. Va. 532, 826 S.E.2d 657 (2019) (Armstead, J.,
dissenting).16
The majority decision upholds the Petitioner’s recidivism conviction based upon an
analysis of the factors set forth in Hoyle, which was adopted by a majority of this Court in
2019. While I believe the plain language of the recidivist statute should be applied, without
looking to the additional qualifying factors contained in Hoyle, the Petitioner’s recidivism
conviction is proper whether we apply the plain language of the statute or the Hoyle factors.
The majority decision aptly recounts the Petitioner’s criminal record giving rise to the
recidivist conviction:
In addition to the [possession of heroin with intent to
deliver] conviction, the State charged petitioner with having
15
State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981) (holding that the offenses
giving rise to the recidivist life sentence should be analyzed to determine “if they involve
actual or threatened violence to the person”)
16
During the 2020 Regular Session of the West Virginia Legislature, the Legislature
made significant modifications to the recidivism statute. These revisions include
specifically enumerated crimes that are considered qualifying offenses for imposition of a
recidivist sentence and limitations on the recency of prior offenses that would give rise to
such recidivist sentences. However, the 2020 revised statute does not govern the current
case.
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previously been convicted of the federal felony offense of
possession with intent to distribute cocaine base and the federal
felony offense of possession of a firearm not registered to
defendant in the National Firearms Registration and Transfer
Record. Regarding his prior federal felonies, petitioner was
convicted in federal court on October 19, 2009, for possession
with intent to distribute cocaine base. Less than six months
after being released from federal custody for this conviction,
petitioner was convicted of possession of firearms not
registered to him. Petitioner was accused of trafficking
firearms and admitted to “selling a .22 pistol, a .22 rifle, a 9
mm pistol, and a modified shotgun.” He was sentenced to
seventy months in prison followed by three years of supervised
release for the firearms conviction. It was less than a month
after being released from federal custody for his second
conviction that he was arrested on the charges in the instant
appeal.
Based on this record, the majority decision concludes that both the triggering felony of
possession with intent to deliver heroin and the prior felony offense of possession with
intent to distribute cocaine base are crimes that involve “substantial impact upon the victim
such that harm results.” In addition, the majority decision concludes that the petitioner’s
prior felony conviction of possession of a firearm not registered to the petitioner in the
National Firearm Registration and Transfer Record involves a “threat of violence, or
substantial impact upon the victim such that harm results.”
It is clear that each of these offenses would also require the petitioner’s conviction
under a plain reading of the recidivism statute, absent and apart from the additional
standards required by Wanstreet and its progeny, including Hoyle. Again, while I agree
with the decision to affirm the Petitioner’s lifetime recidivism conviction, I would rely on
the clear language of the statute itself to affirm such conviction.
Accordingly, I concur in the Court’s decision affirming petitioner’s sentence for the
reasons stated in this separate opinion.
14