### FILED A pri l 3, 2 019 release d at

3:00 p. m. EDYTHE NA SH GAISER, CLERK SUPR EM E COURT OF APPEALS OF W EST VI RGI NI A IN THE SUPREME COURT OF APPEALS OF W EST VIRGINIA

January 2019 Term

No. 17-1066

STATE OF W EST VIRGINIA, Respondent

v. JOE ROGER LANE, Petitioner

Appeal f rom the Circuit Court of

W y om ing County The Honorable Warren R. McGraw, Judge Crim inal Action No. 16-F-107 AFFIRMED, IN PART; REVERSED, IN PART, AND REMANDED
Subm itted: January

29, 2019 Filed: April 3, 2019 Roger P. Dunlap, Esq. Patrick Morrisey , Esq. Sarah F. Sm ith, Esq. Attorney General Beckley , W est Virginia Holly M. Flanigan, Esq. Counsel f or the Petitioner Assistant Attorney General Julianne W ism an, Esq. Assistant Attorney

General Charleston, W est Virginia Counsel f or the Respondent JUSTICE W ORKMAN delivered the Opinion of the Court. JUSTICE ARMSTEAD dissents, and reserves the right to f ile a dissenting opinion.SYLLABUS BY THE COURT 1. “The f

unction of an appellate court when reviewing the suf f iciency of the evidence to support a crim inal conviction is to exam ine the evidence adm itted at trial to determ ine whether such evidence, if believed, is suf f icient to convince a reasonable person of the def endant’s guilt bey ond a reasonable doubt. T h u s, the relevant inquiry is whether, af ter viewing the evidence in the light m ost f avorable to the prosecutio n , any rational trier of f act could have f

ound the essential elem ents of the c r i me proved bey ond a reasonable doubt.” Sy l. Pt. 1, State v. Guthrie , 194 W . Va. 657, 461 S.E.2d 163 (1995).

2. “A c r im inal def

endant challenging the suf f iciency of the evidence to support a conviction takes on a heavy b u r d e n . An appellate court m ust review all the evidence, whether direct or circum stantial, in the light m ost f avorable to the prosecution and

m ust credit all inf

erences and credibility assessm ents that the jury m ight have drawn in f avor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can f ind guilt bey ond a reasonable doubt. C r e d ibility determ inations are f

or 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, f rom which the jury coul d f

i n d g u i l t bey ond a reasonable doubt. To the extent that our prior cases are inconsistent, they are expressly overruled.” Sy l. Pt. 3, State v. Guthrie , 194 W

. Va. 657, 461 S.E.2d 163 (1995).

i3. “W hen a crim inal def endant undertakes a suf

f iciency challenge, all the evidence, direct and circum stantial, m ust be viewed f

rom the prosecutor’s coign of vantage, and the viewer m

ust accept all reas o n a b l e inf erences f rom it that are consistent with the verdict. This rule requires the trial court judge to resolve all evi d e n t i a ry conf licts and credibility

questions in the prosecution’s f avor; m oreover, as am ong com peting inf erences of which two or m ore are plausible, the judge m ust choose the i n f

e rence that best f

its the prosecution’s theory of guilt.” Sy l. Pt. 2, State v. LaRock , 196 W

. Va. 294, 470 S.E.2d 613 (1996).

4. “‘“The Suprem e Court of Appeals reviews sentencing orders

. . . under

a def erential abuse of discretion standard, unless the order violates statutory or constitutional

comma nds.” Sy llabus point 1, in part, State v. Lucas , 201 W

. Va. 271, 496 S.E.2d 221 (1997).’ Sy llabus Point 1, State v. Booth , 224 W

. Va. 307, 685 S.E.2d 701 (2009).” Sy l. Pt. 1, State v. Kilmer , 240 W . Va. 185, 808 S.E.2d 867 (2017).

5. “W hile our constitutional proportiona lity standards theoretically can apply to any crim inal sentence, they are basically applicable to those sentences where there is either no f

ixed m axim

um set by statute or where there is a lif e recidivist sentence.” Sy l. Pt. 4, W anstreet v. Bordenkircher , 166 W . Va. 523, 276 S.E.2d 205 (1981).

ii6. “The appropriateness of a lif e recidivist s e ntence under our constitutional proportionality provision f ound in Article III, Section 5 , w ill be analy zed as f ollows: W e give initial em phasis to the nature of the f inal of f ense which triggers the recidivist lif

e sentence, although consideration is also given to the other underly ing convictions. The prim ary analy sis of these of f enses is to determ ine if they involve actual or threate n e d violence to the person since crim es of this nature have traditionally carried the

m ore serious penalties and theref ore justif y application of the recidivist statute.” Sy l. Pt. 7, State v. Beck , 167 W . Va. 830, 831, 286 S.E.2d 234 (1981).

iiiW orkm an, Justice:

The pe t i t i o n er, Joe Roger Lane, appeals the Novem ber 6, 2017, order sentencing him

to lif e in prison with m ercy

in accordance with the recidivist statute, West Virginia Code §§ 61-11-18 (2014) (ref erred to as “recidivist lif

e sentence”), based upon a f elony conviction f

or two counts of delivery of a controlled substance and two prior f elony convictions f

or unlawf ul wounding a n d conspiracy to com m it the f elony of transf

erring stolen property
. The petitioner argues that there was insuf f icient evidence to convict him of the two delivery of a controlled substa n c e c ounts and that the circuit court’s im position of

a lif e sentence violates the proportionality clause of the W est Virginia Constitution. Based 1
upon our review of the parties’ bri e f s a n d a r g um ents, the appendix record and all other

m atters bef

ore the Court, we af

f irm the petitioner’s conviction f or two counts of delivery of

a controlled substance. W e reverse, however, the c i r c u i t court’s im position of a recidivist lif e sentence as it violates the proportionality clause of the W est Virginia Constitution and

rem and the case to the circuit court f or resentencing.

I. Facts On Octobe r 10, 2015, the petitioner sold Oxy codone to a conf idential

See W . Va. Const. art. III, § 5. 1 1inf

orm ant on two separate occasions. The petitioner was indicted on May 25, 2016, on three

2 counts of delivery of a controlled substance. 3

The petition e r ’ s trial com m enced on Novem ber 29, 2016. The respondent, State of W est Virginia (“the State”), f irst called Capt. Don Cook with the W y om ing County Sherif f ’s Departm ent and assigned to the Southern Regional Drug and Violent Crim e Task Force. Capt. Cook testif

ied that he suspected the petitioner was involved in the illegal sale of prescription m edication. According to the of f icer, the petitioner was living at a residence where controlled substances were being sold by num erous individuals. Capt. Cook f urther testif ied that on October 10, 2015, he used Ina New, a conf idential inf

orm ant working f

or the Southern Regional Drug and Violent Crim e Task Force, to conduct two controlled buy s f rom the petitioner. For the f

i r s t buy , Ms. New was given $50, which she used to purchase two Oxy codone 50 m illigram pills f or $45. Ms. New was wearing a hidden cam era that recorded the encounter during the drug purchases. The second buy , which f ollowed t h e f

i rst and occurred on the sam e day , also resulted in her purchase of two m ore Oxy codone pills f rom the petitione r f

or $45. The second encounter was also videotaped. Capt. Cook stated that

As an ancillary m atter, in cases where the conf idential inf

orm ant’s identity need not 2 be disclosed, f

or instance when a plea is entered, the parties should m ake e v e r y e f f ort to protect the individual’s identity by using his or h e r initials. In this case, however, the conf idential inf

orm ant testif

ied at trial. The third count was dism issed prior to trial because lab results on the drug had not 3 been provided. 2he had searched Ms. New and her vehicle prior to and af ter each purchase to ensure that there

were no illegal substances, m oney or other contraband on her person or in her vehicle. The

s erial num

bers on the m oney given to Ms. New were recorded. The pills t h a t M s . N e w purchased were sent to the State Police laboratory f or testing and wer e c o n f irm ed to be Oxy codone. Capt. Cook testif ied that he reviewed the video, but he did not s e e t h e a c t u a l exchange of

the pills purchased as they were tiny

.

Like Capt. Cook, Ms. New also testif ied concerning the drugs she purchased f rom the petitioner while acting as a conf idential inf

orm ant. She stated she had purchased illegal substances f

rom the petitioner in the past. On October 10, 2015, when she arrived at the residence where the petitioner was located, a wom an, who Ms. New identif ied as Ashley Lam bert, and her little girl, answered the door. Ms. Lam bert was insis t e n t that Ms. New speak to her or the hom eowner, identif ied as Jim m y Mullens, instead of the petitioner. Ms. 4 New insiste d t h a t s he speak with the petitioner. Ms. New testif ied that Ms. Lam

bert appeared “so high and that b aby was standing there. So

. . . [ the petitioner] com e [ sic]

o u t side

. . . he was outside the door.” Once the petitioner stepped out onto the p o r c h , M s . New told him she wanted two (m eaning two Oxy codone). Ms. New testif ied that the pills 5

w e r e not captured on the video recorded by the hidden cam era she was wearing. The jury
Jim m y Mullens’s last nam e is also spelled Mullins in the appendix record. 4 There was no testim ony that the f em ale Ms. New f

irst encountered and/or the baby 5 were also on the f

ront porch at the tim e the pills were purchased f rom the petitioner. 3also watched the video. The petitioner attacked Ms. New’ s credibility by bringing to the

jury ’s attention that she had a p r i o r misdem eanor conviction f or dom estic violence in Virginia, as well as pending charges f or f orgery and ut t ering in W est Virginia, stem m ing f rom her prior drug problem

. Ms. New testif ied that she was not using drugs at the tim e she

m ade the purchases and had been clean since she lost her y oungest son. 6

T h e j ury also heard f

rom Tara Hay slip, a f

orensic analy st with the W es t Virginia State Police Laboratory , who was qualif ied as an expert. Ms. Hay slip stated that she tested the pills purchased and conf irm ed they were Oxy codone, a Schedule II Control l e d Narcotic Substance.

At the conc l u s i o n o f the State’s case, the petitioner did not take the stand to testif y and of f ered no evidence in his def ense. The c a s e w a s t h en sent to the jury which f ound the petitioner guilty of two counts of

delivery of a controlled substance.

On January 27, 2017, the State f iled a recidivist inf

orm ation alleging that the petitioner was previously c o n v i c t e d of unlawf ul wounding on March 20, 1997, and conspiracy to com m it a f

elony of transf

erring stolen property on June 13, 2009. See W

. Va. Code § 61-11-19 (2014). The petitioner’s recidivist trial com m enced on February 1, 2017,
Capt. Cook testif

ied that he had worked with Ms. New since November of 2013. 6 4and resulted in a hung jury

. O n N o v e mber 1, 2017, the petitioner’s second recidivist trial

com m enced and resulted in the jury f inding that the petitioner was the sam e person who had been conv i c t e d o f the prior two f elonies identif

ied in the inf

orm ation. Thereaf

ter, on Novem ber 6, 2017, the ci r cuit court sentenced the petitioner to lif e in prison with m ercy pursuant to W est Virginia Code § 61-11-18. The instant appeal f ollowed.

II. Standard of Review The petitioner raises two separate issues on appeal each of which requires this Court
to apply dif

f erent standards of review. The Court, theref ore, sets f orth those standards within the discussion section of each issue as we pr o c e e d to determ ine whether the petitioner is entitled to relief

.

III. Discussion

A. Sufficiency of Evidence The f irst issue concerns whether there was suf f icient evidence to convict the petitioner of two counts of delivery of a controlled substance. W e review suf f iciency of the evidence challenges under the f ollowing standards of

review: The f unction of an appellate co u r t when reviewing the suf f iciency of the evidence to support a crim inal conviction is to exam ine the evi d e n c e adm itted at trial to determ ine whether such evidence, if believed, is suf f icient to convince a reasonable person of the def

endant’s guilt b e y o nd a reasonable doubt. Thus, the relevant inquiry is whether, af ter viewing the evidence
5in the light m ost f avorable to the prosecution, any rational trier of f act could have f

ound the essential elem ents of t h e crim e proved bey ond a reasonable doubt.

. . . . A crim inal def

endant challenging the suf f iciency of the evidence to support a conviction takes o n a heavy burden. An appellate court m

ust review all the evidence, whether direct or circum stantial, in the light m ost f avorable to the prosecution and m ust credit all inf

erences and credibility assessm ents that the jury m ight h a v e d r a wn in f avor of the prosecution. The evidence need not b e inconsistent with every conclusion save that of guilt so long as the jury c a n f i n d guilt bey ond a reasonable doubt. Credibility determ inations are f or 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, f

rom which the jury c ould f ind guilt bey ond a reasonable doubt. To the extent that our prio r cases are inconsistent, they

are expressly

overruled. Sy l. Pts. 1 and 3, State v. Guthrie , 194 W

. Va. 657, 461 S.E.2d 163 (1995). W e f urther held in sy llabus point two of State v. LaRock , 196 W . Va. 294, 470 S.E.2d 613 (1996):

W he n a crim inal def

endant undertakes a suf f iciency ch allenge, all the evidence, direct and circum stantial, m ust be viewed f rom the prosecutor’s coign of vantage, and the viewer m ust accept all reasonable inf erences f rom it that are consistent wit h t h e v e rdict. This rule requires the trial court judge to resolve all evidentiary conf licts and credibility questions in the prosecution’s f

avor; m oreover, as am ong com peting inf erences of which two or m ore a re plausible, the judge m ust choose the inf erence that best f

its the prosecution’s theory of guilt. Keeping these standards in m ind, we exam ine whether the evidence was suf f icient to support the petitioner’s conviction.

6The petitioner argues that the State relied heavily upon the testim ony of a

conf idential inf

orm ant, along with video recordings of the alleged buy s, “to eli c i t t h e elem ents of the alleged crim e.” The petitioner asserts that there were a “ multitude of

c r e d i b i lity issues” concerning the conf idential inf

orm ant, which included the conf idential inf orm ant’s adm ission to pending crim inal charges as well as a prior m isdem eanor dom estic violence charge. The petitioner contends that the conf idential inf

orm ant, who was the only ey ewitness of

the alleged drug buy , had the m ost to gain f rom the petitioner’s arrest as she

was “not only prom ised leniency but actually paid cash f or her work.” Thus, the petitioner

m aintains the circuit court erred in deny ing his m otion f or a new trial as this evidence was insuf f icient to convict. Conversely , the State argues that our standard of review applicable
t o s uf f iciency of the evidence claim s requires this Court to review the evidenc e a n d t h e credibility assessm ents the jury m ight have m ade in f avor of the prosecution. Guthrie , 194 W

. Va. at 663, 461 S.E.2d at 169, Sy l. P t
. 3

. A s the State m aintains, “[ c]redibility determ inations are f

or a jury and not an appellate court.” Id

. The State contends that under

our law, the pe t i t i o n e r ’ s argum ent, which f ocuses solely upon the credibility of the conf idential inf

orm ant, involves a determ ination that rests with the jury and not this Court.

W est Virginia Code § 60A-4-401 (2014) provides, in relevant part, that “it is unlawf ul f or any pers o n t o . . . d e l i ver, or possess with intent to
. . . deliver, a controlled substance.” The evidence introduced at the petitioner’s trial established that on two separate

7occasions on the sam e day , the petitioner possessed Oxy codone, a controlled substance, and

delivered f

our Oxy codone pills to a conf idential inf

orm ant, Ms. New, as part of two separate controlled buy s. See id

. The jury was presented w i t h t he law enf orcem ent of

f icer’s testim o n y , t he conf

idential inf

orm ant’s testim ony and videotape evidence, all of which established that the delivery of a controlled substance occ u r r e d. Challenges to the conf idential inf

orm ant’s credibility were m ade during cross-exami nation of that witness and during the petitioner’s closing argum ent. Given the jury ’s decision to convict the petitioner f ollowing its deliberations, the jury clearly f ound the conf

idential inf

orm ant to be a credible witness. W e f

ind the evidence established the requisite elem ents necessary f or a jury to f

ind, bey ond a reasonable doubt, that the peti t i o ner on two separate occasions on October 10, 2015, sold two Oxy codone pills to a conf idential inf

orm ant. W e, theref

ore, f ind the circuit
court did not err in deny ing the petitioner’s m otion f or a new trial and af

f irm the petitioner’s conviction on two counts of delivery of a controlled substance.

B. Constitutional Proportionality of Recidivist Life Sentence The petitioner’s second assigned error centers upon whether his lif e sentence with m ercy , which was im posed by the circuit court in accordance with W est Virginia Code § 61-11-18(c ) , v i olates the proportionality clause of the W est Virginia Constitution. Our 7 review of this issue is in accordance with the f ollowing standards of

review:

See supra note 1. 7 8“‘The Suprem e Court of Appeal s r e v i e w s s e n t e n c i ng orders

. . . under a def

erential abuse of discr e t i o n standard, unless the order violates statutory or constitutional com m ands.’ Sy llabus point 1, in part, State v. Lucas , 201 W

. Va. 2 7 1 , 4 9 6 S.E.2d 221 (199 7 ) .” Sy llabus Point 1, State v. Booth , 224 W

. Va. 307, 685 S.E.2d 701 (2009). Sy l. Pt. 1, State v. Kilmer , 240 W

. Va. 185, 808 S.E.2d 867 (2017). Guided by this standard, we undertake an examination of the issue bef ore us.

The petitioner argues that his sentence is unconstitutionally disproportionate
to the crim es he has com m itted. He concedes that his f irst conviction f

or unlawf ul wounding is a crim e of

violence. But he argues that this conviction was twenty y ears ago and that he has had no other convictions involving crim es of violence. The petitioner f urther m aintains that he was sentenced to the Anthony Center f or Youthf ul Of f enders (“Anthony Center”) f or this conviction and was placed on probation af ter he successf

ully com pleted the program at the Anthony Center. The petitioner’s second f elony conviction f

or conspiracy to com m it a f elony , which was transf

erring stolen property , resulted in the petitioner bein g p laced on probation af

ter being credited with pre-conviction tim e spent in jail. As f or the petitioner’s triggering f

elony convictions in the instant m atter, the petitioner contends that “[ t]here was
no testim ony presented by the State that indicated actual or even threatened violence” surrounding the com m ission of the crim e. The petitioner f urther argues that the penalty f or

9delivery of a c o n t r olled substance carries a sentence of one to f if teen y ears, but does not

8 require m andatory incarcerati o n ; that the penalty f or a second conviction of delivery of a controlled substance carries a sentence of two to thirty y ears; and that the sentence(s) m ay be suspended or alternative sentence im posed by the circuit court. As the petitioner posits, “it should shock the conscience of any r e a sonable person that Petitioner received a lif e sentence f

or three crim es that mo stly [ sic] likely standing alone would have resulted in Petitioner serving probation.”

Conversely , th e State argues that the petitioner’s lif e sentence is not disproportionate to his crim inal conduct. According to the State, when the petitioner’s f el ony convictions giving rise to the im position by the circuit court of a lif e sentence are exam ined,
t he f inal and “triggering” of

f ense of delivery of a controlled substance invo l v e d “ t h e pote n t i a l i t y of violence[ ,]” warranting a lif e sentence. The State’s position is grounded in

a general condem nation of drug traf f icking and the “Opioid Crisis” as ref lected in its

W est Virginia Code § 60A-4-401 (a)(i) provides: 8 Except as authorized by this act, it is unlawf ul f or any person to m anuf acture, deliver, or possess with intent to m anuf acture or deliver, a controlled substance. Any person who violates this subsection with respect to: (i) A controlled subs t a n ce classif ied in Schedule I or II, which is a narcotic drug, i s g u i lty of a f elony and, upon conviction, m ay be im prisoned in the state correctional f acility f or not less than one y ear nor m ore than f if teen y ears, or f

ined not m ore than twenty -f ive thousand dollars, or both[ .] . . .

10argum ent that “[ i]llegal drug trade is proxim ately linked to violence against a person in that

it evolves f

r om a culture of phy sical peril, harm to children (such as those born with withdrawals or, as in this case, direct witnesses to drug transactions and drug-intoxicated adults), and crippling addictions.” Thus, the State argues that “[ g]iven the high potential f or 9 violence in controlled substances investigations, this Court should continue to af f irm drug f elonies as qualif

y ing of f enses in lif

e recidivist enhancements.”

Under the proportionality clause of the W est Virginia Constitution as set f orth in article III, section 5, “[ e]xcessive bail shall not be required, nor excessive f ines im posed,

nor cruel and unusual punishm ent inf licted. Penalties shall be proportioned to the character and degree of the offence .” (Em phasis added). In this case, the petitioner was sentenced to

a recidivist lif

e sentence according to the provisions of W est Virginia Code § 61-11-18(c), which expressly provides that if a def endant has “been twice bef ore convicted in the United States of a crim e punishable by conf inem ent in a penitentiary , the person shall be sentenced
to be conf

ined in the state correctional f acility f or lif e.” Despite the statute provi d i n g t h at a lif e sentence “shall” be im

posed where a def

endant has been convicted of three f elonies, any lif e sentence im

posed by the circuit court under the recidi v i s t s t a tute, nonetheless, is

W e f ind the State’s reliance on various cases where parental rights were term inated 9 because children were exposed to illegal drugs by adults in the hom e, where children were b o r n drug-addicted, or where victim s were killed during the course of drug deals t o b e unavailing in our exam ination of whether the petitioner’s crimes warrant the im position of a recidivist lif

e sentence. 11subject to scrutiny under the proportionality clause of our Constitution. See W . Va. Const.

art. III, § 5; U. S. Constitution am end VIII.

To that end, we held in sy llabus point f our of W anstreet v. Bordenkircher , 166 W

. Va. 523, 276 S.E.2d 205 (1981), that “[ w]hile our constitutional proportionality standards theoretically can apply to any crim inal sentence, they are basically applicable to those
sentences where there i s e ither no f ixed m axim

um set by statute or where there is a lif e recidivist sentence.” Signif icantly , “we have consiste n t l y v i e w e d t h e W e s t V i r g i n i a recidivist
statute in a restrictive f

ashion in order to m itigate its harshness.” Id. at 528, 275 S.E.2d at 209. Thus, we f

urther stated in W

anstreet that: [ w]hen we analy

ze a lif e recidivist sentence under proportionality principles, we are in ef f ect dea l i n g with a punishm ent that m

ust be viewed f

rom two distinct vantage points: f irst, the nature of the third of f ense and, second, t he nature of the other c onvictions that support the recidivist sentence. This duality is occa s i o n e d by the f act that the pu n i s h me n t f

or the third f

elony conviction is an autom atic lif e sentence regardless of the nature of th e p e n alty f or the underly ing third f

elony

. . . . W e do not believe that the sole em phasis can be placed on the character of the f inal f elony which triggers t h e l if e recidivist sentence since a recidivist statute is also desi g n e d to enhance the penalty f or persons with repeat ed f elony convictions, i.e., the habitual of f enders. However, f

or purposes of proportion a lity , the third f elony is entitled to m ore scrutiny than the preceding f

e l o n y convictions since it provides the ultim ate nexus to the sentence. Id . at 533-34, 276 S.E.2d at 212 (f ootnote om itted). W e then held shortly af ter W anstreet : 12The appropriateness of a lif e recidivi s t s entence under our constitutional proportionality provision f ound in Article III, Section 5, will be analy

zed as f ollows: W e give initial em phasis to the nature of the f

inal of f ense which triggers the recidivist lif e sentence, although consideration is also given to the o ther underly ing convictions. The primary analysis of these offenses is to determine if they involve actual or threa t e n e d v iolence to the person since crimes of this nature have traditionally carried the more serious penalties an d t h e refore justify application of the recidivist statute

. Sy l. Pt. 7, St a t e v . B e c k , 167 W

. Va. 830, 831, 286 S.E.2d 234 (1981) (em phasis added); accord Kilmer , 240 W . Va. at 185, 808 S.E.2d at 867-68, Sy l. Pt. 3.

Upon our exam ination of the f acts of this case, we agree with the petitioner that the im position of a lif

e sentence, with m ercy , f

or the three f

elonies f or which the petitioner stands convicted violates the proportionality clause of the W est Virginia Constitution. See W

. Va. Const. art. III, § 5. Despite the State’s argum ent to the contrary , the f acts surrounding the f inal triggering of

f ense com m itted by the petitioner–the deliv ery of f our Oxy codone pills–did not involve any actual or threatened violence. There was no testim ony or evidence, whatsoever, to support any t y pe of violence or even perceived violence surrounding the controlled buy s of Oxy codone. W hile there was testim ony that a child was present when the conf idential inf

orm ant f irst knocked on the door of the residence in which the petitioner was located, there was no evidence t hat when the petitioner cam e out onto the porch to conduct the sale of

the Oxy codone pills to the conf idential inf

orm ant that the child was present.

13Moreover, when examining the petitioner’s prior felonies, although he had a

conviction f

or the violent f

elony of unlawf

ul wounding, that conviction occurred t w enty y ears prior to t h e drug of f ense. Further, the petitioner’s second f elony of conspiracy to

com m it transf

erring stolen property did not involve any violence or threat of violence. The prior sentences im

posed on the petitioner f

or these prior f

elonies were not serious penalties so as to justif

y this Court now im

posing a lif

e recidivist sentence.

W e f ind support f

or our conclusion that the petitioner’s recidivist lif e sentence violates the proportionality clause of the W est Virginia Constitution in State ex rel. Boso v. H e d r i c k , 182 W

. Va. 701, 391 S.E.2d 614 (1990), where a def endant argued in a h a b e a s proceeding that his lif

e sentence im

posed und e r the recidivist statute violated the proportionality clause. In Boso , we reem phasized our law that undoubtedly directs that we f ocus the im

position of

a lif e sentence under the recidivist statute on the triggering f elony

. As we stated in Boso , “the third f elony is entitled to m ore scrutiny than the previous f elony convictions f

or purposes of proportionality ‘si n c e i t provides the ultim ate nexus to the sentence.’” Id. at 708, 391 S.E.2d at 621(quoting, in part, W anstreet , 166 W

. Va. at 534, 276 S.E.2d at 212.). This Court, in Boso , then granted the def endant habeas relief regarding his sentence, f

inding that t h e d e f

e n d ant, who had been previously convicted of delivery of a controlled substance, which was twenty gram s o f m arijuana, and breaking and entering, should not have been sentenced to lif e im prisonm ent f

or this third f

elony of n i g h t-tim e

14burglary

. The C o u r t f o c u s e d upon the f

act that neither of his f

irst two f elony convictions, which included delivery of a controlled substance, were “per se” crim es of violence. Id. at 7 0 9 , 3 9 1 S.E.2d at 622. Further, the Court expressly noted that “[ t]here is nothing i n t h e record to indicate that any weapons were used in these crim es or that t h e r e was a threat of violence to any person.” Id

. The case was rem anded to the circuit court f or resentencing on the third f elony

. Id

.

Sim ilarly , in State v. Deal , 178 W

. Va. 142, 358 S.E.2d 226 (1987), this Court again reversed the circuit court’s im position of a lif

e sentence under the recidivist statute and

rem anded f

or resentencing, f

inding that the sentence viola t ed the proportionality clause of

our Constitution. Id

. at 146-47, 358 S.E.2d a t 2 3 0-31. In Deal , we f ound that the def endant’s m ost recent conviction of possession of the controlled substance of 125.4 gram s of m arijuana with intent to deliver involved no violence or threat of violence to the person. Id

. at 143 and 147, 358 S.E.2d at 227 and 231. The def endant also had a prior violent f elony conviction f

or u n l a w f

ul wounding that had occurred som e sixteen y ears bef ore and his second f elony conviction was f

or grand larceny , which was a nonviolent crim e. Id

. at 146, 3 5 8 S.E.2d at 230. This Court determ ined that “[ w]e do not believe the f acts in this cas e warranted im

position of the ultim ate punish me n t a v a i l able in this jurisdiction.” Id

. at 147, 358 S.E.2d at 231; see generally Kilm er , 240 W

. Va. at 185, 808 S.E.2d at 868, Sy l. Pt. 4 (f inding that f

elony of f ense of driving while license revoked f or driving under inf

luence is

15not of

f ense that involves actual or threate n ed violence to person f or purposes of invoking recidivist statute).

W e reject the State’s reliance upon State ex rel Daye v. McBride , 222 W

. Va. 17, 658 S.E.2d 547 (2007), to support its position that this Court has upheld lif e sentences f or drug-related f

elonies. In Daye , this Court exam ined whether a lif e sentence was properly im posed by the circuit court af ter the def endant was convicted a third tim e f or possession of crack cocaine with intent to deliver, second or subsequent of f ense. The def

endant had two prior f elony convictions f

or possession of crack cocaine with intent to deliver, which f orm ed the basis f

or the recidivist inf

orma tion that was f

iled against him

. The trial court declined
to im pose a recidivist lif

e sentenc e , d e s p ite the def endant’s conviction as an habitual of f ender. Id

. at 20, 658 S.E.2d at 550. Instead, the circuit court sentenced the def endant to not less than ten nor m ore than thirty y ears under delivery of a controlled substance statute. Id

. The State then f

iled a m otion to correct an illegally im posed sentence under Rule 35(a) of the W est Virginia Rules of Crim inal Procedure, contending that a recidivist lif e sentence

was m andatory under W est Virginia Code § 61-11-18. 222 W

. Va. at 20, 658 S.E.2d at 550. The circuit court entered a “corrected” order sentencing the def endant to lif

e im prisonm ent. Id . The petitioner’s direct appeal challenging his lif e sentence was denied by this Court.

16Later, however, the def endant, Mr. Day e, f

iled a pro se habeas petition, which

was sum m arily denied by the circuit court and the def endant appealed. Id

. at 21, 658 S.E.2d
at 551. Mr. Da y e c l a i m ed that when all of a def endant’s convictions are drug-related, the requirem ents of the recidivist statute had to give way to the enhancement provisions of the Unif orm Controlled Substances Act. Id

. a t 2 2 , 6 5 8 S.E.2d at 553. This Court disagreed, holding in sy llabus point f ive: W hen any person is convicted of a n of f ense under the Unif orm Controlled Substances Act (W

. Va. Code, Chapter 60A) and is subject to conf inem ent i n the state correctional f acility theref or and it is f

urther determi ned, as provided in W. Va. Code, 61-11-19 (1943), that such person has been bef o r e convicted in the United States of a crim e or crime s , i ncluding crim es under the Unif

orm Controlled Substances Act (W

. Va. Code, Chapter 60A), punishable by conf inem ent in a penitentiary , the court shall sentence the person to conf inem ent in the state correctional f

acility pursuant to the provisions of W

. Va. Code, 61-11

- 1 8 ( 2000), notwithstanding the second or subsequ e n t o f

f ense provisions of W

. Va. Code, 60A-4-408 (1971). 222 W

. Va. at 18, 658 S.E.2d at 548, Sy l. Pt. 5. The Court, in so holding, acknowledged in Daye that

w e b e lieve that the filing of such informations pursuant to W.

Va. Code, 61-11-19 (

1943) is relatively rare and only occurs in more extreme cases where a defendant’s criminal history suggests that a more severe sentence than may be i m p o s e d by the penalty

for the underlying offense. Furtherm ore, since many of the offenses under the Uniform Controlled Substances Act are relatively minor and involve little or no dange r t o o t hers , they m ay be inappropriate f

or the m o r e s e vere treatm ent under W

. Va. Code, 61-11-18 (2000) and W

. Va. Code, 61-11-19 (1943).

17222 W

. Va. at 23, 658 S.E.2d at 553 (em phasis added). Consequently , it is clear that Daye has very lim ited application to the case at bar, which does not involve m ultiple convictions under the U n i f

orm Controlled Substances Act. Furtherm ore, there was no constitutional proportionality clause challenge to the lif e sentence im

posed in Daye

. The Court, theref ore, did not engage in any analy sis of whether the lif e sentence im

posed upon Mr. Day e violated the proportionality

clause of our constitution.

Accordingly , we f

ind that under the f

acts and law bef

ore us, the im

position of

a l i f e sentence with m ercy was unwarranted and an abuse of discretion. W e, theref o r e ,
reverse the circuit court’s sentencing decision on the basis that the petitioner’s recidivist lif e sentence violates the proportionality clause of the W est Virginia Constitution.

IV. Conclusion For the reasons stated here i n , we f ind no error in the petitioner’s underly ing conviction of two counts of possession of

a controlled substance with intent to deliver, but

we reverse the judgm ent of the Circuit Court of W y om ing County insof ar as it im poses a lif e sentence f

or recidivism

and rem and the case to that court f or resentencing.

Af f irm ed, in part; reversed, in part, and remanded.

18