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Date: 04-14-2019

Case Style:

State of West Virginia v. Joe Roger Lane

Case Number: 17-1066

Judge: Margaret Workman

Court: SUPREME COURT OF APPEALS OF WEST VIRGINIA

Plaintiff's Attorney: Patrick Morrisey, Esq.
Holly M. Flanigan, Esq.

Defendant's Attorney: Robert P. Dunlap, Esq.
Sarah F. Smith, Esq.

Description:








On October 10, 2015, the petitioner sold Oxycodone to a confidential
See W. Va. Const. art. III, § 5.1
1
informant on two separate occasions. The petitioner was indicted on May 25, 2016, on three 2
counts of delivery of a controlled substance.3
The petitioner’s trial commenced on November 29, 2016. The respondent,
State of West Virginia (“the State”), first called Capt. Don Cook with the Wyoming County
Sheriff’s Department and assigned to the Southern Regional Drug and Violent Crime Task
Force. Capt. Cook testified that he suspected the petitioner was involved in the illegal sale
of prescription medication. According to the officer, the petitioner was living at a residence
where controlled substances were being sold by numerous individuals. Capt. Cook further
testified that on October 10, 2015, he used Ina New, a confidential informant working for the
Southern Regional Drug and Violent Crime Task Force, to conduct two controlled buys from
the petitioner. For the first buy, Ms. New was given $50, which she used to purchase two
Oxycodone 50 milligram pills for $45. Ms. New was wearing a hidden camera that recorded
the encounter during the drug purchases. The second buy, which followed the first and
occurred on the same day, also resulted in her purchase of two more Oxycodone pills from
the petitioner for $45. The second encounter was also videotaped. Capt. Cook stated that
As an ancillary matter, in cases where the confidential informant’s identity need not2 be disclosed, for instance when a plea is entered, the parties should make every effort to protect the individual’s identity by using his or her initials. In this case, however, the confidential informant testified at trial. The third count was dismissed prior to trial because lab results on the drug had not3 been provided. 2
he had searched Ms. New and her vehicle prior to and after each purchase to ensure that there
were no illegal substances, money or other contraband on her person or in her vehicle. The
serial numbers on the money given to Ms. New were recorded. The pills that Ms. New
purchased were sent to the State Police laboratory for testing and were confirmed to be
Oxycodone. Capt. Cook testified that he reviewed the video, but he did not see the actual
exchange of the pills purchased as they were tiny.
Like Capt. Cook, Ms. New also testified concerning the drugs she purchased
from the petitioner while acting as a confidential informant. She stated she had purchased
illegal substances from the petitioner in the past. On October 10, 2015, when she arrived at
the residence where the petitioner was located, a woman, who Ms. New identified as Ashley
Lambert, and her little girl, answered the door. Ms. Lambert was insistent that Ms. New
speak to her or the homeowner, identified as Jimmy Mullens, instead of the petitioner. Ms. 4
New insisted that she speak with the petitioner. Ms. New testified that Ms. Lambert
appeared “so high and that baby was standing there. So . . . [the petitioner] come [sic]
outside . . . he was outside the door.” Once the petitioner stepped out onto the porch, Ms.
New told him she wanted two (meaning two Oxycodone). Ms. New testified that the pills 5
were not captured on the video recorded by the hidden camera she was wearing. The jury
Jimmy Mullens’s last name is also spelled Mullins in the appendix record. 4 There was no testimony that the female Ms. New first encountered and/or the baby5 were also on the front porch at the time the pills were purchased from the petitioner. 3
also watched the video. The petitioner attacked Ms. New’s credibility by bringing to the
jury’s attention that she had a prior misdemeanor conviction for domestic violence in
Virginia, as well as pending charges for forgery and uttering in West Virginia, stemming
from her prior drug problem. Ms. New testified that she was not using drugs at the time she
made the purchases and had been clean since she lost her youngest son. 6
The jury also heard from Tara Hayslip, a forensic analyst with the West
Virginia State Police Laboratory, who was qualified as an expert. Ms. Hayslip stated that she
tested the pills purchased and confirmed they were Oxycodone, a Schedule II Controlled
Narcotic Substance.
At the conclusion of the State’s case, the petitioner did not take the stand to
testify and offered no evidence in his defense. The case was then sent to the jury which
found the petitioner guilty of two counts of delivery of a controlled substance.
On January 27, 2017, the State filed a recidivist information alleging that the
petitioner was previously convicted of unlawful wounding on March 20, 1997, and
conspiracy to commit a felony of transferring stolen property on June 13, 2009. See W. Va.
Code § 61-11-19 (2014). The petitioner’s recidivist trial commenced on February 1, 2017,
Capt. Cook testified that he had worked with Ms. New since November of 2013. 6 4
and resulted in a hung jury. On November 1, 2017, the petitioner’s second recidivist trial
commenced and resulted in the jury finding that the petitioner was the same person who had
been convicted of the prior two felonies identified in the information. Thereafter, on
November 6, 2017, the circuit court sentenced the petitioner to life in prison with mercy
pursuant to West Virginia Code § 61-11-18. The instant appeal followed.
II. Standard of Review
The petitioner raises two separate issues on appeal each of which requires this Court
to apply different standards of review. The Court, therefore, sets forth those standards within
the discussion section of each issue as we proceed to determine whether the petitioner is
entitled to relief.
III. Discussion
A. Sufficiency of Evidence
The first issue concerns whether there was sufficient evidence to convict the
petitioner of two counts of delivery of a controlled substance. We review sufficiency of the
evidence challenges under the following standards of review:
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
5
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.
Syl. Pts. 1 and 3, State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995). We further held
in syllabus point two of State v. LaRock, 196 W. Va. 294, 470 S.E.2d 613 (1996):
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.
Keeping these standards in mind, we examine whether the evidence was sufficient to support
the petitioner’s conviction.
6
The petitioner argues that the State relied heavily upon the testimony of a
confidential informant, along with video recordings of the alleged buys, “to elicit the
elements of the alleged crime.” The petitioner asserts that there were a “multitude of
credibility issues” concerning the confidential informant, which included the confidential
informant’s admission to pending criminal charges as well as a prior misdemeanor domestic
violence charge. The petitioner contends that the confidential informant, who was the only
eyewitness of the alleged drug buy, had the most to gain from the petitioner’s arrest as she
was “not only promised leniency but actually paid cash for her work.” Thus, the petitioner
maintains the circuit court erred in denying his motion for a new trial as this evidence was
insufficient to convict. Conversely, the State argues that our standard of review applicable
to sufficiency of the evidence claims requires this Court to review the evidence and the
credibility assessments the jury might have made in favor of the prosecution. Guthrie, 194
W. Va. at 663, 461 S.E.2d at 169, Syl. Pt. 3. As the State maintains, “[c]redibility
determinations are for a jury and not an appellate court.” Id. The State contends that under
our law, the petitioner’s argument, which focuses solely upon the credibility of the
confidential informant, involves a determination that rests with the jury and not this Court.
West Virginia Code § 60A-4-401 (2014) provides, in relevant part, that “it is
unlawful for any person to . . . deliver, or possess with intent to . . . deliver, a controlled
substance.” The evidence introduced at the petitioner’s trial established that on two separate
7
occasions on the same day, the petitioner possessed Oxycodone, a controlled substance, and
delivered four Oxycodone pills to a confidential informant, Ms. New, as part of two separate
controlled buys. See id. The jury was presented with the law enforcement officer’s
testimony, the confidential informant’s testimony and videotape evidence, all of which
established that the delivery of a controlled substance occurred. Challenges to the
confidential informant’s credibility were made during cross-examination of that witness and
during the petitioner’s closing argument. Given the jury’s decision to convict the petitioner
following its deliberations, the jury clearly found the confidential informant to be a credible
witness. We find the evidence established the requisite elements necessary for a jury to find,
beyond a reasonable doubt, that the petitioner on two separate occasions on October 10,
2015, sold two Oxycodone pills to a confidential informant. We, therefore, find the circuit
court did not err in denying the petitioner’s motion for a new trial and affirm 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 life sentence
with mercy, which was imposed by the circuit court in accordance with West Virginia Code
§ 61-11-18(c), violates the proportionality clause of the West Virginia Constitution. Our 7
review of this issue is in accordance with the following standards of review:
See supra note 1. 7
8
“‘The Supreme Court of Appeals reviews sentencing orders . . . 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. Booth, 224 W. Va. 307, 685 S.E.2d 701 (2009).
Syl. 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 before us.
The petitioner argues that his sentence is unconstitutionally disproportionate
to the crimes he has committed. He concedes that his first conviction for unlawful wounding
is a crime of violence. But he argues that this conviction was twenty years ago and that he
has had no other convictions involving crimes of violence. The petitioner further maintains
that he was sentenced to the Anthony Center for Youthful Offenders (“Anthony Center”) for
this conviction and was placed on probation after he successfully completed the program at
the Anthony Center. The petitioner’s second felony conviction for conspiracy to commit a
felony, which was transferring stolen property, resulted in the petitioner being placed on
probation after being credited with pre-conviction time spent in jail. As for the petitioner’s
triggering felony convictions in the instant matter, the petitioner contends that “[t]here was
no testimony presented by the State that indicated actual or even threatened violence”
surrounding the commission of the crime. The petitioner further argues that the penalty for
9
delivery of a controlled substance carries a sentence of one to fifteen years, but does not 8
require mandatory incarceration; that the penalty for a second conviction of delivery of a
controlled substance carries a sentence of two to thirty years; and that the sentence(s) may
be suspended or alternative sentence imposed by the circuit court. As the petitioner posits,
“it should shock the conscience of any reasonable person that Petitioner received a life
sentence for three crimes that mostly [sic] likely standing alone would have resulted in
Petitioner serving probation.”
Conversely, the State argues that the petitioner’s life sentence is not
disproportionate to his criminal conduct. According to the State, when the petitioner’s felony
convictions giving rise to the imposition by the circuit court of a life sentence are examined,
the final and “triggering” offense of delivery of a controlled substance involved “the
potentiality of violence[,]” warranting a life sentence. The State’s position is grounded in
a general condemnation of drug trafficking and the “Opioid Crisis” as reflected in its
West Virginia Code § 60A-4-401 (a)(i) provides: 8
Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to: (i) A controlled substance classified in Schedule I or II, which is a narcotic drug, is guilty of a felony and, upon conviction, may be imprisoned in the state correctional facility for not less than one year nor more than fifteen years, or fined not more than twenty-five thousand dollars, or both[.] . . . 10
argument that “[i]llegal 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.” Thus, the State argues that “[g]iven the high potential for 9
violence in controlled substances investigations, this Court should continue to affirm drug
felonies as qualifying offenses in life recidivist enhancements.”
Under the proportionality clause of the West Virginia Constitution as set forth
in article III, section 5, “[e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishment inflicted. Penalties shall be proportioned to the character
and degree of the offence.” (Emphasis added). In this case, the petitioner was sentenced to
a recidivist life sentence according to the provisions of West Virginia Code § 61-11-18(c),
which expressly provides that if a defendant has “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.” Despite the statute providing that
a life sentence “shall” be imposed where a defendant has been convicted of three felonies,
any life sentence imposed by the circuit court under the recidivist statute, nonetheless, is
We find the State’s reliance on various cases where parental rights were terminated9 because children were exposed to illegal drugs by adults in the home, where children were born drug-addicted, or where victims were killed during the course of drug deals to be unavailing in our examination of whether the petitioner’s crimes warrant the imposition of a recidivist life sentence. 11
subject to scrutiny under the proportionality clause of our Constitution. See W. Va. Const.
art. III, § 5; U. S. Constitution amend VIII.
To that end, we held in syllabus point four of Wanstreet v. Bordenkircher, 166
W. Va. 523, 276 S.E.2d 205 (1981), that “[w]hile 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.” Significantly, “we have consistently viewed the West Virginia recidivist
statute in a restrictive fashion in order to mitigate its harshness.” Id. at 528, 275 S.E.2d at
209. Thus, we further stated in Wanstreet that:
[w]hen we analyze a life recidivist sentence under proportionality principles, we are in effect dealing with a punishment that must be viewed from two distinct vantage points: first, the nature of the third offense and, second, the nature of the other convictions that support the recidivist sentence. This duality is occasioned by the fact that the punishment for the third felony conviction is an automatic life sentence regardless of the nature of the penalty for the underlying third felony. . . .
We do not believe that the sole emphasis can be placed on the character of the final felony which triggers the life recidivist sentence since a recidivist statute is also designed to enhance the penalty for persons with repeated felony convictions, i.e., the habitual offenders. However, for purposes of proportionality, the third felony is entitled to more scrutiny than the preceding felony convictions since it provides the ultimate nexus to the sentence.
Id. at 533-34, 276 S.E.2d at 212 (footnote omitted). We then held shortly after Wanstreet:
12
The appropriateness of a life recidivist sentence under our constitutional proportionality provision found in Article III, Section 5, will be analyzed as follows: We give initial emphasis to the nature of the final offense which triggers the recidivist life sentence, although consideration is also given to the other underlying convictions. The primary analysis of these offenses is to determine if they involve actual or threatened violence to the person since crimes of this nature have traditionally carried the more serious penalties and therefore justify application of the recidivist statute.
Syl. Pt. 7, State v. Beck, 167 W. Va. 830, 831, 286 S.E.2d 234 (1981) (emphasis added);
accord Kilmer, 240 W. Va. at 185, 808 S.E.2d at 867-68, Syl. Pt. 3.
Upon our examination of the facts of this case, we agree with the petitioner that
the imposition of a life sentence, with mercy, for the three felonies for which the petitioner
stands convicted violates the proportionality clause of the West Virginia Constitution. See
W. Va. Const. art. III, § 5. Despite the State’s argument to the contrary, the facts surrounding
the final triggering offense committed by the petitioner–the delivery of four Oxycodone
pills–did not involve any actual or threatened violence. There was no testimony or evidence,
whatsoever, to support any type of violence or even perceived violence surrounding the
controlled buys of Oxycodone. While there was testimony that a child was present when the
confidential informant first knocked on the door of the residence in which the petitioner was
located, there was no evidence that when the petitioner came out onto the porch to conduct
the sale of the Oxycodone pills to the confidential informant that the child was present.
13
Moreover, when examining the petitioner’s prior felonies, although he had a
conviction for the violent felony of unlawful wounding, that conviction occurred twenty
years prior to the drug offense. Further, the petitioner’s second felony of conspiracy to
commit transferring stolen property did not involve any violence or threat of violence. The
prior sentences imposed on the petitioner for these prior felonies were not serious penalties
so as to justify this Court now imposing a life recidivist sentence.
We find support for our conclusion that the petitioner’s recidivist life sentence
violates the proportionality clause of the West Virginia Constitution in State ex rel. Boso v.
Hedrick, 182 W. Va. 701, 391 S.E.2d 614 (1990), where a defendant argued in a habeas
proceeding that his life sentence imposed under the recidivist statute violated the
proportionality clause. In Boso, we reemphasized our law that undoubtedly directs that we
focus the imposition of a life sentence under the recidivist statute on the triggering felony.
As we stated in Boso, “the third felony is entitled to more scrutiny than the previous felony
convictions for purposes of proportionality ‘since it provides the ultimate nexus to the
sentence.’” Id. at 708, 391 S.E.2d at 621(quoting, in part, Wanstreet, 166 W. Va. at 534, 276
S.E.2d at 212.). This Court, in Boso, then granted the defendant habeas relief regarding his
sentence, finding that the defendant, who had been previously convicted of delivery of a
controlled substance, which was twenty grams of marijuana, and breaking and entering,
should not have been sentenced to life imprisonment for this third felony of night-time
14
burglary. The Court focused upon the fact that neither of his first two felony convictions,
which included delivery of a controlled substance, were “per se” crimes of violence. Id. at
709, 391 S.E.2d at 622. Further, the Court expressly noted that “[t]here is nothing in the
record to indicate that any weapons were used in these crimes or that there was a threat of
violence to any person.” Id. The case was remanded to the circuit court for resentencing on
the third felony. Id.
Similarly, in State v. Deal, 178 W. Va. 142, 358 S.E.2d 226 (1987), this Court
again reversed the circuit court’s imposition of a life sentence under the recidivist statute and
remanded for resentencing, finding that the sentence violated the proportionality clause of
our Constitution. Id. at 146-47, 358 S.E.2d at 230-31. In Deal, we found that the
defendant’s most recent conviction of possession of the controlled substance of 125.4 grams
of marijuana 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 defendant also had a prior violent felony
conviction for unlawful wounding that had occurred some sixteen years before and his
second felony conviction was for grand larceny, which was a nonviolent crime. Id. at 146,
358 S.E.2d at 230. This Court determined that “[w]e do not believe the facts in this case
warranted imposition of the ultimate punishment available in this jurisdiction.” Id. at 147,
358 S.E.2d at 231; see generally Kilmer, 240 W. Va. at 185, 808 S.E.2d at 868, Syl. Pt. 4
(finding that felony offense of driving while license revoked for driving under influence is
15
not offense that involves actual or threatened violence to person for purposes of invoking
recidivist statute).
We 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 life sentences
for drug-related felonies. In Daye, this Court examined whether a life sentence was properly
imposed by the circuit court after the defendant was convicted a third time for possession of
crack cocaine with intent to deliver, second or subsequent offense. The defendant had two
prior felony convictions for possession of crack cocaine with intent to deliver, which formed
the basis for the recidivist information that was filed against him. The trial court declined
to impose a recidivist life sentence, despite the defendant’s conviction as an habitual
offender. Id. at 20, 658 S.E.2d at 550. Instead, the circuit court sentenced the defendant to
not less than ten nor more than thirty years under delivery of a controlled substance statute.
Id. The State then filed a motion to correct an illegally imposed sentence under Rule 35(a)
of the West Virginia Rules of Criminal Procedure, contending that a recidivist life sentence
was mandatory under West 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 defendant to life imprisonment.
Id. The petitioner’s direct appeal challenging his life sentence was denied by this Court.
16
Later, however, the defendant, Mr. Daye, filed a pro se habeas petition, which
was summarily denied by the circuit court and the defendant appealed. Id. at 21, 658 S.E.2d
at 551. Mr. Daye claimed that when all of a defendant’s convictions are drug-related, the
requirements of the recidivist statute had to give way to the enhancement provisions of the
Uniform Controlled Substances Act. Id. at 22, 658 S.E.2d at 553. This Court disagreed,
holding in syllabus point five:
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).
222 W. Va. at 18, 658 S.E.2d at 548, Syl. Pt. 5. The Court, in so holding, acknowledged in
Daye that
we believe 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 imposed by the penalty for the underlying offense. Furthermore, since many of the offenses under the Uniform Controlled Substances Act are relatively minor and involve little or no danger to others, they may be inappropriate for the more severe treatment under W. Va. Code, 61-11-18 (2000) and W. Va. Code, 61-11-19 (1943).
17
222 W. Va. at 23, 658 S.E.2d at 553 (emphasis added). Consequently, it is clear that Daye
has very limited application to the case at bar, which does not involve multiple convictions
under the Uniform Controlled Substances Act. Furthermore, there was no constitutional
proportionality clause challenge to the life sentence imposed in Daye. The Court, therefore,
did not engage in any analysis of whether the life sentence imposed upon Mr. Daye violated
the proportionality clause of our constitution.
Accordingly, we find that under the facts and law before us, the imposition of
a life sentence with mercy was unwarranted and an abuse of discretion. We, therefore,
reverse the circuit court’s sentencing decision on the basis that the petitioner’s recidivist life
sentence violates the proportionality clause of the West Virginia Constitution.

Outcome: For the reasons stated herein, we find no error in the petitioner’s underlying
conviction of two counts of possession of a controlled substance with intent to deliver, but
we reverse the judgment of the Circuit Court of Wyoming County insofar as it imposes a life
sentence for recidivism and remand the case to that court for resentencing.

Plaintiff's Experts:

Defendant's Experts:

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