          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2019 Term
                                 _______________                                FILED
                                                                              May 30, 2019
                                   No. 17-0978                                released at 3:00 p.m.
                                 _______________                          EDYTHE NASH GAISER, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA

                           STATE OF WEST VIRGINIA,
                            Plaintiff Below, Respondent

                                         v.

                              TRAVIS R. NORWOOD,
                             Defendant Below, Petitioner

       ____________________________________________________________

                 Appeal from the Circuit Court of Greenbrier County
                    The Honorable Robert E. Richardson, Judge
                            Criminal Case No. 16-F-136

                                    AFFIRMED

       ____________________________________________________________

                             Submitted: February 5, 2019
                                Filed: May 30, 2019

Robert P. Dunlap, Esq.                        Patrick Morrisey, Esq.
Sarah F. Smith, Esq.                          Attorney General
Robert Dunlap & Associates                    Benjamin F. Yancey, III, Esq.
Beckley, WV                                   Assistant Attorney General
Counsel for the Petitioner                    Charleston, WV
                                              Counsel for the Respondent


JUSTICE ARMSTEAD delivered the Opinion of the Court.

CHIEF JUSTICE WALKER concurs and reserves the right to file a concurring opinion.

JUSTICE WORKMAN concurs, in part, dissents, in part and reserves the right to file a
separate opinion.
ii
                              SYLLABUS BY THE COURT


              1.     “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.” Syllabus Point 1, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163

(1995).

              2.     “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.” Syllabus Point 3, State v. Guthrie, 194 W.

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




                                              i
              3.     “When 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 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.” Syllabus Point 2, State v. LaRock, 196 W. Va.

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

              4.     “[A] circuit court has no jurisdiction to impose an enhanced sentence

under the [recidivist] statute where the State fails to prove beyond a reasonable doubt “that

each penitentiary offense, including the principal penitentiary offense, was committed

subsequent to each preceding conviction and sentence.”           Syllabus, in part, State v.

McMannis, 161 W. Va. 437, 242 S.E.2d 571 (1978).

              5.     “The primary purpose of our recidivist statutes, W. Va. Code, 61-11-

18 (1943), and W. Va. Code, 61-11-19 (1943), is to deter felony offenders, meaning

persons who have been convicted and sentenced previously on a penitentiary offense, from

committing subsequent felony offenses. The statute is directed at persons who persist in

criminality after having been convicted and sentenced once or twice, as the case may be,

on a penitentiary offense.” Syllabus Point 3, State v. Jones, 187 W. Va. 600, 420 S.E.2d

736 (1992).

              6.     A criminal defendant who has been twice convicted and sentenced for

crimes punishable by confinement in a penitentiary, but has not discharged such prior

                                              ii
penitentiary sentences, and is subsequently convicted of a third crime punishable by

confinement in a penitentiary, is subject to an enhanced sentence under our recidivist

statute, West Virginia Code §§ 61-11-18 (2000) and 61-11-19 (1943).

              7.     “In determining whether a given sentence violates the proportionality

principle found in Article III, Section 5 of the West Virginia Constitution, consideration is

given to the nature of the offense, the legislative purpose behind the punishment, a

comparison of the punishment with what would be inflicted in other jurisdictions, and a

comparison with other offenses within the same jurisdiction.” Syllabus Point 5, Wanstreet

v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).

              8.     “The appropriateness of a life recidivist sentence under our

constitutional proportionality provision found in Article III, Section 5 [of the West Virginia

Constitution], 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 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

recidivist statute.” Syllabus Point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).




                                              iii
Armstead, Justice:

              Petitioner in the instant action and the defendant below, Travis Ray

Norwood, (hereinafter, “Defendant Norwood”), was convicted by a jury of his peers on

one count of delivery of a controlled substance – heroin – in violation of West Virginia

Code § 60A-4-401(a)(2011). Following that conviction, pursuant to the provisions of West

Virginia Code §§ 61-11-18 (2000) and 61-11-19 (1943), (hereinafter, collectively,

“recidivist statute”),1 the State filed an “Information Regarding Sentencing,” which alleged

that Defendant Norwood had previously been convicted and sentenced, on two separate

occasions, of felony offenses that were punishable by incarceration in a penitentiary.

              A trial was then conducted pursuant to the procedures contained in West

Virginia Code § 61-11-19 (1943), and Defendant Norwood was found by that jury to be

the same person who was previously convicted of two prior felony offenses. Based upon

that verdict, and the plain language of the recidivist statute, the circuit court sentenced

Defendant Norwood to “imprisonment in the penitentiary of this State for the rest of his

natural life,”2 on the predicate delivery of heroin charge.

              In this appeal, Defendant Norwood raises three issues. First, he alleges the

evidence was insufficient to sustain a guilty verdict on the delivery of heroin charge.

Second, he argues that because he was on probation for his two prior felony convictions


              1
               Our previous case law has, at times, referred to the recidivist statute as “The
       Habitual Criminal Act.”
              2
              Parole eligibility for Defendant Norwood will be determined by the Parole
       Board pursuant to the provisions of West Virginia Code § 62-12-13(c) (2015).
                                            1
and he had not discharged either of those sentences, the circuit court’s sentence was illegal.

Finally, Defendant Norwood alleges the sentence of life in prison, on the charge of delivery

of heroin, violates the proportionality clause contained in Article III, Section 5 of the West

Virginia Constitution.

              Having considered the parties’ briefs and oral arguments, the submitted

appendix record, and the pertinent authorities, we find no error. Accordingly, for the

reasons set forth below, Defendant Norwood’s conviction and sentence are affirmed.



                I. FACTUAL AND PROCEDURAL BACKGROUND

              The facts adduced at trial, and necessary to sustain a conviction for delivery

of a controlled substance, show that on June 1, 2016, Defendant Norwood sold heroin to a

confidential informant, (hereinafter, “C.I.”) cooperating with the Greenbrier Valley Drug

and Violent Crime Task Force (hereinafter, “Task Force”). On that date, the C.I. contacted

Defendant Norwood and made arrangements to purchase an eight-ball (3½ grams) of

cocaine. After that conversation, the C.I. called Task Force member Sergeant Brian Baker

of the Greenbrier County Sheriff’s Department. During this call, the C.I. informed

Sergeant Baker that arrangements could be made to purchase cocaine from Defendant

Norwood. Sergeant Baker advised the C.I. to set up the cocaine purchase. Following

protocol established by the Task Force, the C.I. met with Sergeant Baker who searched

both the C.I. and her car. Neither the C.I. had drugs or money on her person, nor did her

car contain drugs or money.


                                              2
              At that time, Sergeant Baker provided to the C.I. $280 and placed clandestine

audio and video recording devices in two locations in the C.I.’s car. After all was ready,

the C.I. contacted Defendant Norwood to set up a meeting at the Pizza Hut in White

Sulphur Springs to buy cocaine. Upon making these arrangements, the C.I. drove her car

to the Pizza Hut, with Sergeant Baker following in his own vehicle. Sergeant Baker, parked

at a distance, observed the C.I. pull into a parking spot located near the Pizza Hut.

              Once the C.I. parked her car, Defendant Norwood exited the Pizza Hut and

got into the C.I.’s car. For the first time, Defendant Norwood informed the C.I. he did not

have any “powder,” but he did have some “dog food.” Defendant Norwood got out of the

C.I.’s car and went back into the Pizza Hut. Once Defendant Norwood exited the C.I.’s

car, the C.I. called Sergeant Baker and recounted her conversation with Defendant

Norwood. Sergeant Baker testified the term “powder” is slang for cocaine, and the term

“dog food” is slang for heroin. Sergeant Baker advised the C.I. to purchase the heroin.

              Defendant Norwood reentered the C.I.’s car and was told by the C.I. that she

wanted to buy the previously offered heroin. As Defendant Norwood did not have the

heroin with him, the C.I. drove Defendant Norwood to his home in downtown White

Sulphur Springs, where the C.I. gave $230 to Defendant Norwood. Defendant Norwood

got out of the car and returned a short time later with a large bag of a substance believed

by the C.I. to be heroin. Once in the C.I.’s car, Defendant Norwood poured some of that

substance into a Pizza Hut receipt in the presence of the C.I. Defendant Norwood then




                                              3
gave the receipt containing the substance to the C.I., returned $9 of the $230 that had been

given to him, and exited the car, taking the remainder of the large bag with him.

              Following the purchase, the C.I. was debriefed by Sergeant Baker and,

pursuant to protocol, Sergeant Baker again searched the C.I.’s car and person for other

drugs and money. Finding none, Sergeant Baker retrieved the clandestine audio and video

recording devices from the C.I.’s car, the substance that was purchased by the C.I., and $59

of the $280 that was given to the C.I. for the transaction.

              After debriefing, the C.I. and Sergeant Baker parted ways. Sergeant Baker

went to his office, where he field-tested the substance purchased by the C.I., and

determined it to be heroin. Sergeant Baker processed the heroin into evidence and secured

it in the locked, temporary evidence locker at the station. On June 13, 2016, Corporal

Nathan Hersman of the West Virginia State Police removed the heroin from its temporary

location, logged it into evidence, and placed it in the main evidence locker at the station.

On June 16, 2016, Corporal Hersman removed the heroin out of the evidence locker and

delivered it to the West Virginia State Police Forensics Lab in South Charleston, where it

was further tested and confirmed to be heroin.

              Defendant Norwood was indicted on October 4, 2016, on one count of

delivery of heroin. On May 4, 2017, following a two-day trial, Defendant Norwood was

convicted of that crime. During the trial, Defendant Norwood extensively cross-examined

all prosecution witnesses – two police officers and the C.I.. During closing argument,




                                              4
Defendant Norwood argued the police failed to establish the chain of custody and the

evidence as a whole was insufficient to support his conviction.

              Following Defendant Norwood’s conviction, the State filed its recidivist

information on May 19, 2017, and, on September 25, 2017, Defendant Norwood was found

by a jury to be the same person as had previously been convicted of two prior felonies.

During the recidivist trial, Sergeant Baker testified Defendant Norwood was the same

person who was twice previously sentenced to a penitentiary. The first prior conviction

and sentence was for the felony offense of eluding police in Chesterfield County, Virginia,

on October 28, 2008. The second prior conviction and sentence was for the felony offense

of selling, giving, distributing, or possessing with the intent to sell, give, or distribute more

than one-half ounce, but not more than five pounds of marijuana, in Alleghany County,

Virginia, on February 1, 2016. The circuit court instructed the jury that the prior Virginia

convictions constituted felonies “for which a penitentiary sentence could be imposed under

the laws of the State of West Virginia.” Having heard the evidence, the jury returned its

verdict that Defendant Norwood was the same person who was previously convicted of

two felony offenses.

              After the jury’s verdict, the matter proceeded to the sentencing phase. There,

the circuit court inquired of Defendant Norwood and his counsel if there was any argument

regarding proportionality to be made. Hearing none, the circuit court found both the

delivery of heroin conviction, as well as the prior felony conviction of eluding police, to




                                               5
be crimes of potential violence, and pursuant to the plain language of West Virginia Code

§ 61-11-18 (2000), sentenced Defendant Norwood to a term of life in the penitentiary.

               Following entry of the circuit court’s sentencing order, Defendant Norwood

filed this appeal.



                              II. STANDARD OF REVIEW

               Each assignment of error has a different standard of review. For sufficiency

of the evidence, the standard is:

                      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.

                                               6
Syllabus Points 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We

have further stated:

                     When 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
              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.

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

              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).” Syllabus Point 1, State v.

James, 227 W.Va. 407, 710 S.E.2d 98 (2011); Syllabus Point 1, State v. Kilmer, 240 W.

Va. 185, 808 S.E.2d 867 (2017).



                                     III. ANALYSIS

       A. Sufficiency of the Evidence

              Defendant Norwood makes two arguments challenging the sufficiency of the

evidence. The first tests the method by which the Task Force stored the heroin in its

evidence locker, calling into question the chain of custody. The second relates to the

sufficiency of the evidence as a whole, which Defendant Norwood alleges was not

sufficient to prove guilt beyond a reasonable doubt. As discussed below, the evidence

                                              7
adduced at trial demonstrates Defendant Norwood cannot meet the heavy burden set forth

in Syllabus Points 1 & 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995), on

either issue.



                i.    Sufficiency of the Chain of Custody

                Defendant Norwood asserts that there was a break in the chain of custody

because the heroin was left unattended in the Task Force’s temporary evidence locker for

13 days, and that evidence was insufficient to sustain his conviction. This argument has

no merit. As a practical matter, police officers cannot be expected to sit in an evidence

locker 24 hours a day, 7 days a week, 365 days a year. What they can do – and what they

did here – is place the evidence in a secure temporary locker, until such time as the evidence

can be transferred to the main evidence locker.

                Defendant Norwood argued this very issue to the jury, and the jury was

unpersuaded, and neither are we. The credibility of this evidence was for the jury to weigh,

and they properly did. There is nothing in the record that demonstrates Defendant

Norwood has overcome his substantial burden to prevail on a sufficiency of the evidence

challenge on this issue.




                                              8
              ii.    Sufficiency of the Evidence As A Whole

              On his other sufficiency challenge, the collective evidence presented during

his trial likewise demonstrates Defendant Norwood cannot meet this heavy burden.

              Upon reviewing the record, the officers establishing the chain of custody and

the C.I. were subject to cross-examination and Defendant Norwood raised the issues

regarding the chain of custody and the C.I.’s credibility in closing argument. As the State

had the burden to prove Defendant Norwood (1) delivered (2) a controlled substance, and

taking “all inferences and credibility assessments that the jury might have drawn in favor

of the prosecution,” Syllabus Point 3, in part, Guthrie, 194 W. Va. 657, 461 S.E.2d 163

(1995), we find there was ample proof to sustain the charge.             These credibility

determinations were solely for the jury to ascertain.



       B. Legality of Recidivist Sentence

              Defendant Norwood’s second assignment of error is that he cannot be

sentenced to life imprisonment under our recidivist statute, when his prior felony

convictions have not been discharged. 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
              confinement in a penitentiary, the person shall be sentenced to
              be confined in the state correctional facility for life.




                                             9
This Court has previously held that “a circuit court has no jurisdiction to impose an

enhanced sentence under the [recidivist] statute where the State fails to prove beyond a

reasonable doubt that each penitentiary offense, including the principal penitentiary

offense, was committed subsequent to each preceding conviction and sentence.” Syllabus,

in part, State v. McMannis, 161 W. Va. 437, 242 S.E.2d 571 (1978)(emphasis added). In

other words, to sustain a conviction in a recidivist action, the prosecution must prove that

each offense is committed subsequent to each preceding conviction and subsequent to each

preceding sentence.

              During the recidivist trial, Sergeant Baker testified that both prior felony

convictions in Virginia – eluding police and distribution of marijuana – were crimes

punishable by confinement in a penitentiary. His testimony establishes Defendant

Norwood’s first felony conviction and sentence was prior to Defendant Norwood’s second

felony conviction and sentence. His testimony further established Defendant Norwood’s

predicate felony conviction — that is, the “principal penitentiary offense” – was committed

after his conviction and sentence for the second felony offense. Id.

              Defendant Norwood argues he was still on probation for both of his prior

felony convictions at the time he was convicted and sentenced on the third felony. Because

of this fact, Defendant Norwood claims his life sentence under our recidivist statute was

illegal. We believe this issue to be one of first impression, and if this Court were to adopt

Defendant Norwood’s argument, we believe it would further dilute the clear and




                                             10
unambiguous meaning of our recidivist statute. See State v. Lane, ___ W. Va. ___, 826

S.E.2d 657 (2019)(Armstead, J., dissenting).

               To demonstrate why this argument is meritless, let us hypothetically explore

a potential situation: A person is convicted of the felony of armed robbery, and is sentenced

to the penitentiary for a determinate term of not less than ten years. See W. Va. Code § 61-

2-12(a)(1) (2000). This person, while still in the penitentiary serving his sentence, commits

the felony of first degree sexual assault. See W. Va. Code § 61-8B-3 (2006). He is then

convicted of that first degree sexual assault and sentenced to the penitentiary for an

indeterminate term of not less than fifteen nor more than thirty-five years, while still

serving the sentence for armed robbery. Id. Finally, this person commits the felony of

malicious wounding, while still in the penitentiary, and while still serving time for the two

prior felonies. See W. Va. Code 61-2-9(a) (2017). Under Defendant Norwood’s theory, a

recidivist life sentence flowing from the third violent felony would be improper because

that person had not discharged either of his two prior sentences.

               We believe this result is not what the Legislature intended in enacting the

recidivist statute:

                      The primary purpose of our recidivist statutes, W. Va.
               Code, 61-11-18 (1943), and W. Va. Code, 61-11-19 (1943), is
               to deter felony offenders, meaning persons who have been
               convicted and sentenced previously on a penitentiary offense,
               from committing subsequent felony offenses. The statute is
               directed at persons who persist in criminality after having been
               convicted and sentenced once or twice, as the case may be, on
               a penitentiary offense.



                                             11
Syllabus Point 3, State v. Jones, 187 W. Va. 600, 420 S.E.2d 736 (1992).             In the

hypothetical factual scenario above, there is no doubt that the three-time felon would be

deterred from committing future crimes and should remain in a penitentiary for life.

              We therefore hold that a criminal defendant who has been twice convicted

and sentenced for crimes punishable by confinement in a penitentiary, but has not

discharged such prior penitentiary sentences, and is subsequently convicted of a third crime

punishable by confinement in a penitentiary, is subject to an enhanced sentence under our

recidivist statute, West Virginia Code §§ 61-11-18 (2000) and 61-11-19 (1943).



       C. Constitutionality of Recidivist Sentence - Proportionality

              The sentencing provisions of our recidivist statute, contained in West

Virginia Code § 61-11-18 (2000) are “free from ambiguity [and] its plain meaning is to be

accepted and applied without resort to interpretation.” Syllabus Point 2, Crockett v.

Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970). This procedure provides:

              Where an accused is convicted of an offense punishable by
              confinement in the penitentiary and, after conviction but before
              sentencing, an information is filed against him setting forth one
              or more previous felony convictions, if the jury find or, after
              being duly cautioned, the accused acknowledges in open court
              that he is the same person named in the conviction or
              convictions set forth in the information, the court is without
              authority to impose any sentence other than as prescribed in
              Code, 61–11–18, as amended.

Syllabus Point 3, State ex rel. Cobb v. Boles, 149 W.Va. 365, 141 S.E.2d 59 (1965);

Syllabus Point 3, State ex rel. Daye v. McBride, 222 W. Va. 17, 22, 658 S.E.2d 547, 552


                                             12
(2007). Here, the evidence adduced at the recidivist trial conducted under the provisions

of West Virginia Code § 61-11-19 (1943), clearly established that Defendant Norwood was

previously convicted of two prior felonies. The circuit court, in applying the plain meaning

of West Virginia Code § 61-11-18 (2000), correctly sentenced Defendant Norwood to life

in the penitentiary.

              Further, consistent with the precedents of this Court, Defendant Norwood’s

life sentence does not violate proportionality principles. Under the provisions of Article

III, Section 5, of the West Virginia Constitution, “[p]enalties shall be proportioned to the

character and degree of the offence.” W. Va. CONST. art. III, § 5. As this Court explained,

“Article III, Section 5 of the West Virginia Constitution, which contains the cruel and

unusual punishment counterpart to the Eighth Amendment of the United States

Constitution, has an express statement of the proportionality principle. . . .” Syllabus Point

8, in part, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980).” This Court has

previously held:

                     In determining whether a given sentence violates the
              proportionality principle found in Article III, Section 5 of the
              West Virginia Constitution, consideration is given to the nature
              of the offense, the legislative purpose behind the punishment,
              a comparison of the punishment with what would be inflicted
              in other jurisdictions, and a comparison with other offenses
              within the same jurisdiction.

Syllabus Point 5, Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981).

              This Court has also held:

                    The appropriateness of a life recidivist sentence under
              our constitutional proportionality provision found in Article

                                             13
              III, Section 5 [of the West Virginia Constitution], 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 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
              recidivist statute.

Syllabus Point 7, State v. Beck, 167 W.Va. 830, 286 S.E.2d 234 (1981).

              Applying the Beck standard to this case, we first look at the final felony

offense, delivery of a controlled substance - heroin. The 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. As for the transaction’s nature, Defendant Norwood sold heroin

to a C.I., while Defendant Norwood was alone with the C.I. in the C.I.’s car, which

contained clandestine audio and video recording devices. Had those recording devices

been discovered, or the fact that the C.I. was cooperating with the Task Force been

revealed, there would have been a substantial risk of violence to the C.I..

              We acknowledge that a majority in this Court’s recent opinion in Lane, ___

W. Va. ___, 826 S.E.2d 657 (2019), declined to impose a life sentence on proportionality

grounds under the recidivist statute where the predicate felony convictions flowed from

two counts of delivery of a controlled substance – a total of four Oxycodone pills. In this

matter, however, due to the nature of heroin itself, heroin trafficking clearly warrants

application of the recidivist statute.


                                             14
              The delivery and ultimate use of heroin carries with it an inherent risk of

violence to a person. From the moment of its clandestine creation, heroin is illegal, and is

a silent scourge that has saturated our State. The West Virginia Department of Health and

Human Resources documents that between 2010 and 2017, 1,086 West Virginians died

from heroin overdoses. See West Virginia Department of Health and Human Resources,

Bureau for Public Health, Health Statistics Center, FAST STATS – Heroin (Fall, 2018),

http://www.wvdhhr.org/bph/hsc/pubs/other/Heroin_Fast_Facts_2017/Heroin_Fast_Stats_

2017.pdf. In fact, in the year 2017 alone – 236 deaths – accounting for 25% of all overdose

deaths in the State, were attributed to the abuse of heroin. Id.

              On the issue of whether heroin carries with it a potential for violence, the

circuit court found:

                     [The] [c]ourt would also note the inherent danger in the
              distribution of drugs, and while the [c]ourt was unable to
              identify any specific cases that have been decided by the
              Supreme Court of Appeals of this state, finding that
              distribution of narcotics has a potential for violence, it certainly
              has a potential for risk of injury and death to persons involved
              in consuming that product that Mr. Norwood has been
              convicted of peddling.

              This potential for violence has been acknowledged by this Court when it held

that those who deliver controlled substances and cause a death can be convicted of felony

murder:

                      Pursuant to W. Va. Code § 61–2–1 (1991), death
              resulting from an overdose of a controlled substance as defined
              in W. Va. Code § 60A–4–401 et seq. and occurring in the
              commission of or attempt to commit a felony offense of
              manufacturing or delivering such controlled substance,

                                              15
              subjects the manufacturer or deliverer of the controlled
              substance to the felony murder rule.

Syllabus Point 3, State v. Rodoussakis, 204 W.Va. 58, 511 S.E.2d 469 (1998); Syllabus

Point 12, State v. Jenkins, 229 W. Va. 415, 729 S.E.2d 250 (2012). This Court has also

upheld a life sentence under our recidivist statute, when all three felony convictions were

for delivery of crack cocaine. See State ex rel. Daye v. McBride, 222 W. Va. 17, 658 S.E.2d

547 (2007). Finally, the Legislature has recently adopted a new statute, making it a felony

to provide a controlled substance to a person which causes death. See W. Va. Code § 60A-

4-416(a) (2017).

              Accordingly, this Court concludes that the delivery and use of heroin carries

with it a potential for actual violence to a person.

              The second part of our analysis examines the underlying convictions. One

of those convictions – evading police – clearly carries with it the risk of violence.

Defendant Norwood was convicted of this crime in the Commonwealth of Virginia3 on




              3
                      Defendant Norwood was convicted of both prior felonies in the
       Commonwealth of Virginia. This Court has previously held, “[w]hether the
       conviction of a crime outside of West Virginia may be the basis for application of
       the West Virginia Habitual Criminal Statute, W. Va. Code, 61-11-18, -19 (1943),
       depends upon the classification of that crime in this State.” Syllabus Point 3, Justice
       v. Hedrick, 177 W. Va. 53, 350 S.E.2d 565 (1986). See also State v. Lawton, 125
       W. Va. 1, 5, 22 S.E.2d 643, 645 (1942)(“It is conceivable that there may be crimes
       which are punishable by confinement in a penitentiary in other jurisdictions and that
       the same crimes would be classed as misdemeanors under our laws. In such event,
       it would seem proper that the law of this State should be considered in determining
       the grade for the crimes for which there has been a former conviction.”).


                                              16
October 28, 2008, when Defendant Norwood entered a plea of guilty. The Virginia statute

in effect on February 10, 2008, and under which Defendant Norwood was convicted,

provided:

                    Any person who, having received a visible or audible
             signal from any law-enforcement officer to bring his motor
             vehicle to a stop, drives such motor vehicle in a willful and
             wanton disregard of such signal so as to interfere with or
             endanger the operation of the law-enforcement vehicle or
             endanger a person is guilty of a Class 6 felony.

Va. Code Ann. § 46.2-817(B) (2002). An essential element of the Virginia eluding police

statute required the Commonwealth to prove, beyond a reasonable doubt, that Defendant

Norwood endangered the operation of a law enforcement vehicle or a person.

             As the circuit court found:

                     [T]he [c]ourt finds that the offense for which the
             defendant was previously convicted is not just a felony offense,
             but it does involve a significant risk of danger to the public that
             is an element of that offense. Essentially[,] the defendant could
             not have been convicted of that offense if there was not an
             element of endangerment either to the law enforcement officer
             vehicle or to any person. Fleeing from an officer is inherently
             dangerous and presents the same type of risk of violence in the
             form of a collision that would be presented by an individual
             under the influence of alcohol, and the Supreme Court of this
             State has repeatedly found that driving under the influence of
             alcohol is a sufficient risk or potential for violence as to trigger



             The trial transcript shows that the circuit court discussed this exact point at
      length with counsel on the record, even granting a recess which afforded counsel
      the further opportunity for review. No objection was lodged, and – while the court
      did not specify what West Virginia felony was analogous to the Virginia evading
      police statute – the court instructed the jury that both prior Virginia convictions
      would constitute felonies “for which a penitentiary sentence could be imposed under
      the laws of the State of West Virginia.”
                                            17
              – or as to avoid a finding or determination that a life sentence
              would be cruel or unusual.

Accordingly, based upon the clear meaning of the provisions of the Virginia statute in

question, coupled with the findings made by the circuit court, we find that Defendant

Norwood’s conviction for eluding police carried with it the potential for actual violence.

              We agree with the circuit court that both the prior evading police conviction

and the predicate conviction for delivery of heroin, which, under our law, “provides the

ultimate nexus to the sentence,” carried with them the potential for actual violence.

Therefore, we conclude that the life sentence under our recidivist statute does not violate

proportionality principles.4 State v. Miller, 184 W. Va. 462, 465, 400 S.E.2d 897, 900

(1990)(quoting Wanstreet, 166 W. Va. 523, 534, 276 S.E.2d 205, 212 (1981)).



                                  IV. CONCLUSION

              Finding no error, for the reasons stated above, we affirm.



                                                                                 Affirmed.




              4
                     We would also note that Defendant Norwood waived the
       Constitutional challenge to his sentence below. The colloquy during the sentencing
       phase, coupled with the language in the circuit court’s order of October 10, 2017,
       demonstrate that waiver.
                                             18
