                                                                                     FILED
                                                                                   April 3, 2019
No. 17-1066 State of West Virginia v. Joe Roger Lane                                 released at 3:00 p.m.
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
ARMSTEAD, J., dissenting:                                                             OF WEST VIRGINIA


       The application of West Virginia’s recidivist statute, set forth in W. Va. Code §§ 61-

11-18(c) and 61-11-19 (2000) (read in para materia, hereinafter “recidivist statute”), has

undergone a significant transformation by this Court over the past four decades. Beginning

with Wanstreet v. Bordenkircher, 166 W. Va. 523, 276 S.E.2d 205 (1981), this Court has

gradually strayed from a straightforward and consistent application of the clear language

of the statute to engage in an ever-evolving effort to reformulate the statute and impose a

myriad of hurdles to its application. While this evolution appears motivated by a desire to

balance the intent of the recidivist statute with concerns that its effect in certain cases may

violate Article III, Section 5 of the West Virginia Constitution, the end result is an

inconsistent hodgepodge of legal authority which, for the reasons set forth more fully

below, would appear to call for a reevaluation and clarification of the statute by the

Legislature.

       It is a long-standing rule of statutory interpretation that this Court is to give the plain

meaning to a statute, so long as the statute is clear upon its face. “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.” Syllabus Point 2, State v.

Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). “Where the language of a statute is plain

and unambiguous, there is no basis for application of rules of statutory construction; but

courts must apply the statute according to the legislative intent plainly expressed therein.”

Syllabus Point 1, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448

                                                1
(1965). “Courts always endeavor to give effect to the legislative intent, but a statute that

is clear and unambiguous will be applied and not construed.” Syllabus Point 1, State v.

Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).       “Where the language of a statute is free

from ambiguity, 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). “We look first to the statute’s language. If the text, given its plain meaning,

answers the interpretive question, the language must prevail and further inquiry is

foreclosed.” Appalachian Power Co. v. State Tax Dep’t of West Virginia, 195 W.Va. 573,

587, 466 S.E.2d 424, 438 (1995).

              Despite the clear and unambiguous language of the recidivist statute, this

Court has strayed from its role to “read the relevant law according to its unvarnished

meaning, without any judicial embroidery.” Syllabus Point 3, in part, West Virginia Health

Care Cost Review Authority v. Boone Memorial Hosp., 196 W.Va. 326, 472 S.E.2d 411

(1996). The recidivist statute requires a trial court to impose a life sentence for persons

convicted of a “crime punishable by confinement in a penitentiary,” who have been found

by a jury to be the same person as previously convicted of two crimes punishable by

confinement in the penitentiary. W. Va. Code §§ 61-11-18(c) and 61-11-19. W. Va. 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.


                                             2
       Once the prosecutor has filed the information, the procedure for a trial court to

follow in a recidivist action is found in W. Va. Code § 61-11-19 (1943), which states:

              It shall be the duty of the prosecuting attorney when he has
              knowledge of former sentence or sentences to the penitentiary
              of any person convicted of an offense punishable by
              confinement in the penitentiary to give information thereof to
              the court immediately upon conviction and before sentence.
              Said court shall, before expiration of the term at which such
              person was convicted, cause such person or prisoner to be
              brought before it, and upon an information filed by the
              prosecuting attorney, setting forth the records of conviction
              and sentence, or convictions and sentences, as the case may be,
              and alleging the identity of the prisoner with the person named
              in each, shall require the prisoner to say whether he is the same
              person or not. If he says he is not, or remains silent, his plea,
              or the fact of his silence, shall be entered of record, and a jury
              shall be impanelled [sic] to inquire whether the prisoner is the
              same person mentioned in the several records. If the jury finds
              that he is not the same person, he shall be sentenced upon the
              charge of which he was convicted as provided by law; but if
              they find that he is the same, or after being duly cautioned if he
              acknowledged in open court that he is the same person, the
              court shall sentence him to such further confinement as is
              prescribed by section eighteen of this article on a second or
              third conviction as the case may be.

       A mandatory life sentence is required for a defendant convicted of a third felony.

However, in 1981, this Court issued its decision in Wanstreet, adopting a new test to

determine if a sentence under the recidivist statute would violate the provisions of Article

III, Section 5 of the West Virginia Constitution, which states, that a criminal sentence “shall

be proportioned to the character and degree of the offence.” W. Va. CONST., art. III, § 5.

See, Syllabus Point 8, State v. Vance, 164 W. Va. 216, 262 S.E.2d 423 (1980).

                                              3
       The facts in Wanstreet were fairly straightforward. In 1967, George Wanstreet was

found guilty of forging a $43.00 check. Wanstreet, 166 W. Va. 523, 524-525, 276 S.E.2d

205, 207. He had been previously convicted of forgery of a check (1951), and arson of a

hay barn (1955). Id. After his 1967 conviction, Wanstreet was sentenced to life in prison

for having been convicted of three felonies. Id.

      In its analysis in Wanstreet, this Court found that the recidivist statute had been

upheld “in the face of a number of constitutional challenges.” Id., 166 W. Va. 523, 525,

276 S.E.2d 205, 207. Syllabus Point 3 of Martin v. Leverette, 161 W. Va. 547, 244 S.E.2d

39 (1978), provides, “the habitual criminal statute, W. Va. Code, 61-11-18, and the

enhanced sentence provided thereunder, are not per se violative of the Equal Protection or

Cruel and Unusual Punishment Clauses of the West Virginia or the United States

Constitutions.” Syllabus Point 3, in part, Martin, Id.. “This same result has been reached

by the United States Supreme Court as against challenges made to our statute based on due

process and equal protection grounds, Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d

446 (1962), and as against claims of double jeopardy and cruel and unusual punishment,

Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).” Wanstreet,

166 W. Va. 523, 525, 276 S.E.2d 205, 207.

      From this analysis, this Court issued two new Syllabus Points in Wanstreet:

              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.


                                             4
              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 Points 4 & 5, Wanstreet, 166 W. Va. 523, 276 S.E.2d 205. In so holding, this

Court, in my view, incorrectly held the application of the recidivist statute was violative of

the Constitution of West Virginia and essentially rewrote and reformulated the statute.

       Prior felonies which were only felonies because of the repeat offender status of the

defendant were excluded from consideration. Wanstreet, 166 W. Va. 523, 526, 276 S.E.2d

205, 208 (citing, State v. Brown, 91 W. Va. 187, 112 S.E. 408 (1922)). Felonies committed

before the conviction and sentencing for a previous felony were also excluded from

consideration. Wanstreet, 166 W. Va. 523, 526, 276 S.E.2d 205, 208 (citing, State v.

McMannis, 161 W.Va. 437, 242 S.E.2d 571 (1978); State ex rel. Yokum v. Adams, 145

W.Va. 450, 114 S.E.2d 892 (1960); State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d

146 (1953); Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681 (1950)). Convictions by a military

court were likewise excluded. Wanstreet, 166 W. Va. 523, 526, 276 S.E.2d 205, 208

(citing, State v. Wheeler, 123 W. Va. 279, 14 S.E.2d 677 (1941)).

       In cases following Wanstreet, this Court continued to supplement the statute by

adding elements to it:

              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
                                              5
              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 recidivist statute.

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

threatened violence to the list of considerations). Post-Wanstreet, this Court has, on

numerous occasions, handed down what are seemingly divergent and inconsistent opinions

on the application of the recidivist statute. Four of those cases are highlighted here.

       In State v. Deal, 178 W. Va. 142, 358 S.E.2d 226 (1987), this Court found that

felony convictions for unlawful wounding (1969), grand larceny (1971), and possession of

a controlled substance with intent to deliver (1985) did not “warrant[] imposition of the

ultimate punishment available in this jurisdiction.” Deal, 178 W. Va. 142, 147, 358 S.E.2d

226, 231.

       Likewise, in State v. Miller, 184 W. Va. 462, 400 S.E.2d 897 (1990), this Court

vacated a life sentence under the recidivist statute stemming from a fourth felony

conviction for unlawful assault – shooting a houseguest – on these grounds:

                      In this case, the final felony which triggered application
              of the recidivist statute was unquestionably a violent crime.
              The first underlying felony, the juvenile conviction for
              breaking and entering, posed only a threat of violence.
              However, the two more recent felonies [forgery and uttering
              and obtaining money by false pretenses] were not crimes of
              even a potentially violent nature. Certainly, it cannot be said
              that the appellant had history of violent felony convictions
              prior to this shooting incident.


                                              6
Miller, 184 W. Va. 462, 465, 400 S.E.2d 897, 900. Two clearly violent felonies, including

the most recent – which involved shooting another person – were not deemed violent

“enough” for application of the recidivist penalty.

       Conversely, in State v. Housden, 184 W. Va. 171, 399 S.E.2d 882 (1990), this Court

found that convictions for sodomy (1957), breaking and entering (1968), grand larceny

(1982), and burglary and grand larceny (1988), did warrant imposition of a life sentence.

       Finally, as Respondent aptly points out in its brief, in State ex rel Daye v. McBride,

222 W. Va. 17, 658 S.E.2d 547 (2007), this Court upheld the application of a life sentence

under the recidivist statute where the defendant was convicted a third time for possession

of crack cocaine with the intent to deliver. All three convictions which warranted the

recidivist sentence in Daye were for possession of crack cocaine with intent to deliver. Id.

       For the reasons outlined above, 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, 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”), are beyond the scope of the statutory

requirement.

       However, even applying the additional requirements and safeguards imposed by

Wanstreet, Beck and the varied decisions that have followed, affirmation of the life

sentence pursuant to the recidivist statute in this case is appropriate and does not violate

the Petitioner’s Constitutional right to be free from disproportionate punishment. In Beck,

this Court held:

                                             7
              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 recidivist
              statute.

Syllabus Point 7, Beck, supra. In this case, the prior offenses include a charge of unlawful

wounding for which the Petitioner was convicted in 1997 and conspiracy to commit a

felony of transferring stolen property for which the Petitioner was convicted in 2009.

Significantly, the most recent offense giving rise to the recidivist life sentence was the

Petitioner’s conviction for selling Oxycodone to a confidential informant on two separate

occasions, one of which involved the presence of a toddler.

       The majority, relying on State ex rel Boso v. Hedrick, 182 W. Va. 701, 391 S.E.2d

614 (1990), and State v. Deal, supra, found that the recidivist life sentence imposed in the

case at bar violates the proportionality clause of the West Virginia Constitution. The

majority emphasizes that, in Boso, the defendant’s prior convictions of delivery of twenty

grams of marijuana and breaking and entering were not “per se” crimes of violence and the

record did not reflect that weapons were used or that there was a threat of violence.

Discussing Deal, the majority emphasized that the most recent crime for which the

defendant was convicted also related to marijuana, in that case possession of 125.4 grams

of marijuana with intent to deliver, and the prior conviction for unlawful wounding

occurred sixteen years before the defendant’s second conviction for grand larceny. In this

case, the facts related to the most recent offense are of a much more serious nature. The


                                             8
Petitioner was convicted of selling Oxycodone on two separate occasions to an informant

where a small child was present or in the immediate vicinity.

       While the majority distinguishes Daye by stating that it involved multiple

convictions under the Uniform Controlled Substances Act and did not involve a direct

Constitutional proportionality clause challenge, the majority at the same time concedes that

the direct appeal by the Petitioner in Daye challenging his life sentence was denied by this

Court. In fact, this Court in Daye expressly recognized that the convictions in that case

were under the Uniform Controlled Substances Act and found that such convictions

nonetheless subjected the defendant to being sentenced under the recidivist statute,

holding:

                      When any person is convicted of an offense under the
              Uniform Controlled Substances Act (W.Va. Code, Chapter
              60A) and is subject to confinement in the state correctional
              facility therefor and it is further determined, as provided in W.
              Va. Code, 61–11–19 (1943), that such person has been before
              convicted in the United States of a crime or crimes, including
              crimes under the Uniform Controlled Substances Act (W. Va.
              Code, Chapter 60A), punishable by confinement in a
              penitentiary, the court shall sentence the person to confinement
              in the state correctional facility pursuant to the provisions of
              W. Va. Code, 61–11–18 (2000), notwithstanding the second or
              subsequent offense provisions of W. Va. Code, 60A–4–408
              (1971).

Syllabus Point 3, Daye, supra. The Daye opinion was issued in 2007, despite more than

three decades of evolving precedent in the wake of Wanstreet. It is clear that this Court

recognized the appropriateness of applying the recidivist statute to cases involving repeat

offenses even when all of the offenses involved drug trafficking crimes in violation of the

Uniform Controlled Substances Act.

                                             9
       I am particularly inclined to dissent from the majority in light of the fact that I

believe there is substantial evidence that situations, such as the one at bar, involving use of

confidential informants to conduct purchases of controlled substances are inherently

dangerous and fraught with a serious risk of violence.           I find the language in the

Respondent’s brief before this Court outlining the nature of this risk accurate and

compelling:


              Illegal drug trade is proximately linked to violence against a
              person in that it evolves from a culture of physical 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... Selling opiates is not, as
              Petitioner contends, a nonviolent offense, but rather “one phase
              of a large scale, well entrenched criminal activity that springs
              from human greed and preys on man’s weakness – one that
              turns buyers into sellers, makes addicts out of newborn infants
              and sets addicts to mugging, thievery, prostitution, robbery and
              murder to support an insatiable appetite.” People v. Gardner,
              78 Misc. 2d 744, 750, 359 N.Y.S.2d 196, 202 (N. Y. Sup. Ct.
              1974). This sentiment from Gardner is neither archaic nor
              limited to other jurisdictions. In Beckley, West Virginia, on
              August 29, 2006, right before the eyes of both his girlfriend
              and a fellow officer, “Corporal Charles E. ‘Chuck’ Smith, III,
              of the Beckley Police Department was shot and killed during a
              undercover drug deal.” State v. Martin, 224 W. Va. 577, 579,
              687 S.E.2d 360, 362 (2009) (per curiam). In Huntington, West
              Virginia, a drug dealer paid a drug addict $1,500 to murder a
              prostitute suspected of stealing from the dealer’s drug stash.
              State v. Holmes, No 11-0436, 2011 WL 8197528, at *1 (W.
              Va. Nov. 10, 2011)

                     Despite any argument that a confidential informant’s
              involvement with law enforcement somehow reduces the threat
              of violence, informants take on great risk in their operations.
              In 2014, a man facing prosecution for selling narcotics to a
              confidential informant learned the identity of the informant,
              lured her to a secluded stretch of railroad tracks on the West

                                              10
              Side of Charleston, West Virginia, confronted her about her
              work as an informant, listened to her plead for her life, and shot
              her in the back as she attempted to flee. United States v. Dixon,
              191 F. Supp. 3d 603, 607 (S.D. W. Va. 2016). He then shot
              her twice more. “the last of which was at close range and in the
              face,” carrying “out the murder with the intent both to retaliate
              against [the informant] for her cooperation with police and to
              prevent her from providing additional evidence or testimony
              against him related to the drug trafficking investigation” Id.
              (internal citations omitted). Petitioner’s argument fails to
              account for the “severe and devastating impact that the opioid
              crisis has had on this country and, particularly, on West
              Virginia,” including the high potential for violence in even
              controlled purchases arranged by undercover law enforcement
              and confidential informants. United States v. Wilmore, 282 F.
              Supp. 3d 937, 941 (S.D. W. Va. 2017) (citing United States v.
              Walker, No. 2:17-CR-00010, 2017 WL 2766452, at *3-7 (S.D.
              W. Va. June 26, 2017)); see, e.g., United States v. Dixon,
              supra; see also State v. Martin, supra.

       In light of the substantial risk of violence involved in the controlled substance

purchases in this case, exacerbated by the presence of a toddler at the location at which one

of the purchases took place, I believe there is sufficient evidence to support a finding that

there was, in fact, a risk of violence in this case. Therefore, consistent with this Court’s

holdings in Wanstreet, Beck, and Daye, application of the recidivist statute in the case at

bar is appropriate, would uphold the statute’s clear intent as evidenced by its plain

language, and complies with our state and federal Constitutions.

       Although I disagree that the recidivist statute has resulted in Constitutionally

deficient sentences, it is indisputable that this Court is authorized, and is in fact required,

to protect the rights of our citizens to be free from the imposition of any sentence that it

deems to violate their Constitutional rights. Even if I would have reached a different result,

this Court was fully within its Constitutional role and function to determine that the

                                              11
recidivist statute as adopted by the Legislature or as applied by the courts in specific

circumstances was in violation of our State’s Constitution. At the same time, when this

Court determines that a statute adopted by the Legislature violates such Constitutional

rights, I believe it is proper for the Legislature, should it choose to do so, to attempt to

remedy the Constitutional deficiency as identified by this Court through legislative action

rather than for this Court, by judicial decree, to effectively alter the code and impose

provisions that are not included in the four corners of the statute. Ultimately, it would be

the role of this Court to determine whether any such modifications adopted by the

Legislature would, in fact, remedy the Constitutional deficiency and render the statute and

its specific application, Constitutional. Accordingly, I would strongly urge the Legislature

to revisit the recidivist statute in light of this Court’s previous decisions and take such steps,

if any, it deems appropriate to address the Constitutional concerns previously expressed by

this Court. Such action would not only clarify the Legislature’s intent relating to the

recidivist statute but would also provide prosecutors, defense counsel, and the judiciary

guidance in handling issues arising from the statute.

       Because I believe the imposition of the life sentence was proper in the case before

us pursuant to a clear reading of the recidivist statute, and because the circumstances

present in this case involved a risk of violence, I would affirm the life sentence. For these

reasons, I respectfully dissent.




                                               12
