State v. Plante

State of West Virginia, Plaintiff Below, Respondent v. Joshua Dwayne Plante, Defendant Below, Petitioner

No. 19-0109

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

November 19, 2020

(Cabell County 17-F-14 and 18-F-275)

MEMORANDUM DECISION

Petitioner Joshua Plante, by counsel A. Courtenay Craig, appeals from the January 11, 2019, order imposing a life sentence and the January 24, 2019, amended order of commitment entered by the Circuit Court of Cabell County sentencing him upon his conviction of possession with intent to deliver a controlled substance to a term of imprisonment of one to fifteen years and for his conviction of third offense of a felony under West Virginia Code § 61-11-18(c) (2000),¹ our recidivist statute, a life sentence with mercy to run concurrent with the first sentence imposed. Respondent State of West Virginia ("the State"), by counsel Scott E. Johnson, filed a response. On appeal, petitioner argues that insufficient evidence was presented to the jury to uphold his conviction of possession with intent to deliver a controlled substance and that the imposition of a recidivist life sentence is constitutionally disproportionate to his conduct.

After considering the parties' written and oral arguments, as well as the record on appeal and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On June 19, 2016, petitioner was arrested at the home of his former girlfriend, Chandra Harmon, on a warrant for murder. At the time he was arrested, petitioner was found to be in possession of approximately $100 and approximately three grams of heroin.Based upon this possession, law enforcement applied for and received a warrant for the petitioner's residence, 325 Olive Street, Huntington, West Virginia, which he shared with his sister, Shaina, and which he registered as his residence with federal probation.² Police officers with the Huntington Police Department executed the warrant and recovered digital scales, multiple cell phones, cocaine base, heroin, sandwich baggies, $320, multiple guns, and ammunition, all located in various places in the home.

Petitioner was indicted on one count of murder,³ and one count of possession with intent to deliver.⁴ The two counts were severed by the circuit court and the petitioner was tried first on the possession with intent to deliver count.

Petitioner's trial began on August 6, 2018. Prior to selecting a jury, the circuit court read the following stipulations to the jury, which had been agreed to by both the State and petitioner: 1) the exhibits of physical evidence to be introduced, including but not limited to the drugs, guns, ammunition and digital scales, were admissible without the State establishing a chain of custody; 2) petitioner was lawfully arrested by the Huntington Police Department on an unrelated matter and was lawfully searched incident to this arrest; 3) petitioner resided at 325 Olive Street, Huntington, Cabell County, West Virginia, at the time of his arrest; 4) petitioner's residence at 325 Olive Street, Huntington, West Virginia, was lawfully searched and the items therein were lawfully seized by the Huntington Police Department.

The witnesses who testified for the State included Det. Stephen Maniskas with the Huntington Police Department. Det. Maniskas testified that on June 19, 2016, he was contacted by Det. Dakota Dishman, also with the Huntington Police Department, who gave him the address of petitioner's former girlfriend and asked him to go to that address to be on the lookout for petitioner because he was wanted on an unrelated murder charge.⁵ Thedetective, along with other detectives, went to the address and undertook surveillance. The officers observed petitioner leaving the residence and proceeded to arrest him. Det. Maniskas testified that petitioner was searched and money, three grams of heroin, a cigar box, as well as several other items were found. Det. Maniskas testified that three grams of heroin is not consistent with personal use. According to Det. Maniskas, a typical dosage unit for heroin is a tenth or two-tenths of a gram. Thus, the three grams of heroin found on petitioner represented about thirty doses. Moreover, petitioner had no other items on his person indicating personal use such as needles, spoons, or tie-off material or evidence that he was snorting. Det. Maniskas testified that petitioner did not have the appearance of a heroin addict.

Following petitioner's arrest, the police obtained and executed a search warrant on his residence. Det. Maniskas testified that as a result of this search officers seized digital scales, multiple cell phones, a baggy containing heroin, a baggy containing cocaine base, other sandwich baggies, multiple firearms, including pistols and rifles with live ammunition, and $320. Det. Maniskas testified that the digital scales were found in the living room, along with two cell phones. A third cell phone was found on the porch. Heroin was located in the kitchen. Various guns, including a Glock pistol and an AK-47, along with cocaine, were found in one of the bedrooms. Det. Maniskas explained that the presence of digital scales, plastic baggies, money, firearms, and multiple cell phones are indicative of an intent to deliver. The State specifically asked the detective, "[i]n your experience as investigating drug cases, with those amount of items in your house, no indicia of personal use on you and the amount of drugs he had on him, does that lend itself more to personal use or intent to deliver?" Det. Maniskas answered, "[i]ntent to deliver, sir." The detective was also questioned regarding whether suspected drug dealers respect bedroom boundaries and whether a drug dealer's bedroom is the only place where evidence would be located. Det. Maniskas stated that it is typically "[t]hroughout the residence." He further testified that sometimes evidence is located in a certain spot and other times it is "strewn throughout the residence[,]" including children's bedrooms.

The State also called Huntington Police Lt. David Castle, who supervised the forensic investigations unit. Lt. Castle corroborated Det. Maniskas' testimony as to the items found at petitioner's residence and where the items were located. During cross-examination, Lt. Castle added that firearms and cocaine were found in what appeared to be a female's bedroom.⁶

Petitioner presented testimony from his mother, Carmon Plante. Ms. Plante stated that the reason her son listed his sister's residence, the Olive Street address, as his official residence was because he was on probation; however, petitioner also spent time at her home and other places, including his former girlfriend's home and the home of another womannamed Elizabeth Bolton. Ms. Plante testified that she had given her son "at least $2,000" to purchase clothes and other items when he returned after being released from incarceration. She also stated that she and her son had been at his residence the day before his arrest and she did not see any contraband in the home.

Petitioner next called Chandra Harmon, his former girlfriend, who testified that petitioner spent most nights at her residence, which is where he was initially arrested.⁷

At the close of all the evidence, the case was submitted to the jury. The jury found petitioner guilty of possession of heroin with intent to deliver.

Immediately after the jury returned its verdict, the State filed a Recidivist Information. In addition to the above-mentioned conviction, the State charged petitioner with having previously been convicted of the federal felony offense of possession with intent to distribute cocaine base and the federal felony offense of possession of a firearm not registered to defendant in the National Firearms Registration and Transfer Record. Regarding his prior federal felonies, petitioner was convicted in federal court on October 19, 2009, for possession with intent to distribute cocaine base. Less than six months after being released from federal custody for this conviction, petitioner was convicted of possession of firearms not registered to him. Petitioner was accused of trafficking firearms and admitted to "selling a .22 pistol, a .22 rifle, a 9 mm pistol, and a modified shotgun." He was sentenced to seventy months in prison followed by three years of supervised release for the firearms conviction. It was less than a month after being released from federal custody for his second conviction that he was arrested on the charges in the instant appeal.

On December 4, 2018, petitioner's counsel admitted to the circuit court that petitioner had "no good faith reason to suggest that [the petitioner] is not the person that was previously convicted twice before he was convicted this time." Petitioner, however, contended that none of his three convictions (the triggering State felony or the two federal felonies) were crimes of violence so that imposition of a life recidivist sentence was constitutionally impermissible.

The circuit court ordered the parties to brief the issue of the constitutional permissibility of imposing a life recidivist sentence on the petitioner. After the issue wasbriefed, the circuit court held a hearing on January 8, 2019. During the hearing, petitioner admitted that he was the same individual named in the information. By order entered on January 11, 2019, the circuit court imposed a life recidivist sentence on petitioner. Thereafter, on January 24, 2019, the circuit court entered an amended order of commitment. It is from this order that petitioner appeals.

Petitioner raises two assignments of error. The first alleged error involves the sufficiency of the evidence to support petitioner's conviction for possession with intent to deliver heroin. We apply the following standard of review to this issue:

The function

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