1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

S tate of West Virginia,

P laintiff Below, Respondent

v s .) 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 senten cing him upon his

conviction of p ossession with i ntent to d eliver a c ontrolled s ubstance 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. Re spondent State of West Virginia (“the State”) , by counsel Scott E. Johnson, filed a response. On appeal, petitioner argues that in sufficien t evidence was presented to the jury to uphold his conviction of possession

with intent to deliver a controlled subst ance and that t he 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 substan tial 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, p etitioner was arrested at the home of his fo rmer 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 T he Legislature amended West Virginia Code § 61

- 11

- 18, e ffective June 5, 2020, making substantial changes to the recidivist statute. The amended statute, however, is not applicable to the instant case. 

### FILED November 19, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 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 proba tion. 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.

P etitioner 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 t rial 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 lim ited to the drugs, guns, ammunition and digital scales, were admissible without the State establishing a chain of custody; 2) p etitioner was lawfully a rrested by the Huntington Police Department on an unrelated matter and was lawfully searched incident to this arrest; 3) p etitioner resided at 32 5 Olive Street, Huntington, Cabell County, West Virginia, at the time of his arrest; 4) p etitioner ’s residence at 325 Olive Street, Huntington, West Virginia, was lawfully searched and the items therein were lawfully seized by the Huntington Police Department

.

T he witnesses who testified for the State included Det

. Stephen Maniskas with the Huntington Police Department . Det

. Maniskas testified that o n 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 p etitioner 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. De t.
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.3 detective, along with othe r detectives, went to the address and undertook surveillance. The

officers observed p etitioner leaving the residence and proceeded to arrest him. D et. Maniskas testified that petitioner was searche d and money, three grams of heroin, a cigar box, as well a s several other items were found. Det

. Maniskas testified that three grams of

heroin i s 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

p etitioner represented about thirty doses. Moreover, p etitioner 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 p etitioner 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 resul t 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 amou nt 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? ” De t. Maniskas answered, “ [i]ntent to deliver, sir. ” The detective was also question ed re garding 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 som etimes 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 L t. David Castle, who supervised the

f

orensic investigations unit

. Lt. Castle corroborated Det

. Maniskas’ testimony as to the

items f ound 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

P etitioner 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, p etitioner moved the circuit court for a judgment of acquittal , which was denied.4 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.

P etitioner next called Chandra Harmon, his former girlfriend, who testified that

pet itioner 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 t he federal felony offense of p ossession with

i ntent to d istribute c ocaine b ase and the federal felony offense of p ossession of a f irearm

not r egistered to d efendant 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 release d 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 pi stol, 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 release d from federal custody for his second conviction that he wa s arrested on the charges in the instant appeal.

On December 4, 2018, p etitioner ’s counsel admitted to the circuit court that

p etitioner had “ no good faith reason to suggest that [the p etitioner] is not the person that was previously convicted twice befo re he was convicted this time. ” P etitioner, 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 imperm issible.

The circuit court ordered the parties to brief the issue of the constitutional permissibility of imposing a life recidivist sentence on the p etitioner. After the issue was

7 Further, as part of petitioner’s defense that the drugs and contraband found in his

re sidence 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 w as surveillance

video taken outside the residence that showed two unidentified African American males

“associated with that residence within 24 hours of that search.”5 briefed, the circuit court held a hearing o n January 8, 2019

. During the hearing, peti tioner

admitted that he was the same individual named in the information. By order entered o n January 11, 2019, the circuit court i mpos ed a life recidivist sentence on petitioner. Thereafter, on January 24, 2019, the circuit court e ntered an amended order of commitment. It is from this order that petitioner appeals.

Petitioner raises two assignments of error. T he first alleged error involves the sufficiency of the evidence to support petitioner’s conviction for possession with i ntent 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

rat ional 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 mus t 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 inco nsistent 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 contain s 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 viewer6 must accept all reasonable infere nces 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 plausibl e, the judge must choose the inference that best fits the prosecution ’ s theory of guilt.

Syl

. P t. 2, State v. LaRock , 196 W. Va. 294, 470 S.E.2d 613 (1996).

R elying on State v. Dudick , 158 W. Va. 629, 213 S.E.2d 458 (1975), petitioner argues that ther e 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 al so 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 drug s or any of the items found at his

residence

, and further failed to prove that he exercised dominion and control over the

heroin. P etitioner 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

wer e 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 a partment where he resided. 158 W. Va. at 643, 213 S.E.2d at 466.7 Petitioner was charged with possession with intent to deliver heroin, which requires that the State prove that he unlawfully and feloniously po ssessed 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 ( provid ing in relevant part, that “it is unlawful for

any person to .

. . deliver, or possess w ith 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 Sta te 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 pe titioner 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

. P etitioner stipulated to the jury that he resided at 325 Olive Street in Huntington,

t hat 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 $3 20 were lawfully seized. Det

. Maniska s 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, p etitioner repeatedly refers to the three grams of heroin which were found on his person when he was first ar rested, bu t 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 confo rmity 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 develo pment 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, a ny 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).8 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, peti tioner’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

- l ine 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.” Petit ioner 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 t he Court’s countervailing decisions i n 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 fel ony 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 deliver y 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 n ever committed a crime of violence. 11

11 Petitioner also argues, r elying upon the recent United States Supreme Court’s

decisions in Johnson v. United States , 576 U.S. 591 (2015)

, and Sessions v. Dimay a , 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 cont ain 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,

t he 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, 5839 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. denie d , 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 si ngle 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

p etitioner claimed that the imposition of a recidivist life sentence for the triggering felony

offense of s econd 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

th e 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, n either Johnson nor Sessions

, the Supreme Court decisions relied upon by petitioner , involve a recidivist statute, and the principles of s tatutory 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 declin e 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

V irginia State Courts in addressing claimed disproportionate sentencing.” See Ewing v. California , 538 U.S. 1 1, 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, t his Court has repeatedly found that “[c]oncededly, the general rule in this country is to apply new law retroactively

to c ases 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

.10 In reaching this conclusion in Hoyle , the Court began its examination of whether the recidivist life sentence was constitutionally disp roportionate by first looking at the

relevant statute , which is where we begin our re view 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 t wice 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.” I d. ; accord Hoyle , 242 W. Va. at 614, 836 S.E.2d

at 832

.

We fi rst 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; s ee, 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.” Syll abus Point 4, Wanstreet v. Bordenkircher , 166 W. Va. 523, 276 S.E.2d 205 (1981).

242 W. Va. at 60 3 , 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 60 3 , 836 S.E.2d at 821, Syl. Pt. 11

.11 Since Beck , there ha d been little development in our analytical approach undertaken to determine whether a recidivist life sentence is constitutionally proportionate until Hoyle

. In Hoyle , w ith specific emphasis on the inconsistent deci sions 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 v ictim 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 60 3 , 836 S.E.2d at 82 1 , Syl. Pt. 12

.

A pplying the Hoyle test to the facts of this case, we conclude that petitioner’s

recidivist lif e sentence must be upheld. T he triggering felony of possession with intent to

deliver heroin is a crime that involves “substantial impact upon the victim such that harm

results.” Id

. ; s e e State v. Gaskins , No. 18

- 0575, 2020 WL 3469894, at *4 (W. Va. June 25, 2020) (memorandum decisio n) (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 p ossession of a f irearm not r egistered to

d efendant in the National Firearms Registration and Transfer Record unquestionably involves a serious crime that endangers the public. T his conviction therefore also involve s 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 affi rm.

Affirmed.12 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 evidenc e 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 lan guage 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 convic tion 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.13 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 stand ard 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 sta tute 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. Beck 15 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 th e 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 decisio n 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 t o 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 sente nces. However, the 2020 revised statute does not govern the current

case.14 previously been convicted of the federal felon y 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, petitione r 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 registe red 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 firea rms 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 o f 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 t hat 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.