HUNTINGTON — The West Virginia Supreme Court of Appeals has ruled a life sentence handed down to a Huntington man was constitutional, finding his possession of a distribution amount of heroin was enough to trigger the state’s “three-strike” rule for repeat offenders.
Joshua Dwayne Plante, 30, was convicted by jury of possession with intent to deliver a controlled substance in January 2019. He was on parole at the time of his arrest and had previously been convicted of a drug and weapons charge.
While the drug charge typically calls for a one- to 15-year prison sentence, he was later sentenced to life under West Virginia’s three-strike rule for violent offenders after Cabell Circuit Judge Paul T. Farrell determined the drug conviction was a violent offense and would count toward his three strikes.
However, Plante’s attorney, Courtenay Craig, argued to the court in October 2019 there was not sufficient evidence to demonstrate Plante had possessed heroin found at his legal residence and that the court erred when it found him to be a violent offender because he had not committed a crime of violence.
Scott E. Johnson, assistant attorney general for the state, argued when looking at the picture as a whole, Plante’s sentence was not disproportionate to the crime for which he was convicted.
Plante was arrested June 20, 2016, on a warrant for a charge of murder, of which he was later acquitted. Upon his arrest he was found in possession of $100 and 2.89 grams of heroin. Huntington police later found about half a gram of heroin, digital scales and $320 in cash, most of which was found in another person’s room.
He was not charged with possessing the 2.89 grams on his person, Craig wrote, but was instead charged for the heroin found at the Olive Street address. Plante’s possession of heroin was for his own use because he has substance use disorder from his incarceration, Craig said, despite the jury finding it was for sale.
Craig said West Virginia’s “three-strike rule” is ambiguous in that it has not been legislated of what offenses fall under the rule other than the standing that it must have the presence, threat or use of violence. Previous rulings contradict each other in whether opioid-related offenses are violent, he wrote.
The justices said they found no error in his sentencing handed down by Farrell.
They ruled Plante’s drug offense should be applied toward his strikes because it involves crimes that have “substantial impact upon the victim such that harm results.” His firearm charge should also apply because it is a crime that “unquestionably involves a serious crime that endangers the public” and therefore involves a threat of violence or substantial impact on the victim, they ruled.
Plante is housed at Mount Olive Correctional Center in Fayette County.