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Huntington attorney: ‘Three-strike rule’ is violation of defendant’s constitutional rights

January 13, 2019

HUNTINGTON — In an attempt to keep his client from a life sentence on a drug charge, a Huntington attorney is arguing that applying West Virginia’s “three-strike rule” to the defendant would be a violation of his constitutional rights.

Joshua Dwayne Plante, 28, of Huntington, who is charged with murder in the June 20, 2016, shooting death of Morrell Deshawn Paschell, 21, of Huntington, was convicted of possession with intent to deliver by a jury after an August trial. The conviction came after he was found to be in possession of 3 grams of heroin when he was arrested outside his Olive Street home the day Paschell was found dead.

After Plante’s conviction, assistant prosecutor Joe Fincham filed a lifetime recidivism

charge, which can be filed when a defendant has three violent or drug offenses on their record. Plante previously had at least two convictions involving drugs and weapon sales.

Fincham and defense attorney Courtenay Craig appeared in Cabell Circuit Judge Paul T. Farrell’s court Monday, during which they argued whether Plante’s charges should be considered a violent crime and would count toward the “three-strike rule.”

Craig argued there was no threat of violence in any of the three cases, which the Constitution of the United States requires. Plante had never been found in possession of drugs or firearms at the same time, he said, and the acts were not violent.

″(State) language here doesn’t override his constitutional protection against a disproportionate sentence,” Craig said. “There’s no actual violence and no threatened violence, therefore the imposition of a 15 to life recidivist sentence would be constitutionally disproportionate and an illegal sentence.”

Fincham said in West Virginia, the life recidivism charge can be invoked when crimes in themselves create a substantial risk to the public. He used an example of a repeat offender who continues to drive intoxicated. While driving intoxicated isn’t violent in itself, the risk created in the action is.

“In this case the recidivist statute is clearly meant for individuals whom cannot exist in free society without committing crimes,” he said. “Mr. Plante in his adult life, since his first conviction, has been free for maybe six to eight months. In that time he has committed two more felonies and the state has also accused him of committing a murder.”

Farrell said he would issue a ruling in the case within 30 days. He added he would not consider the murder allegation in his decision.

Follow reporter Courtney Hessler at Facebook.com/CHesslerHD and via Twitter @HesslerHD.

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