Man sentenced for delivering marijuana

EPHRATA - A 58-year-old man said he was innocent of delivering marijuana as he was sentenced to three and a half years in prison.

A Grant County Superior Court jury convicted David M. Whisler of possession with the intent to manufacture or deliver marijuana and unlawful possession of a firearm in the second degree.

Whisler's prior convictions include burglary in the second degree, delivery of cocaine, delivery of marijuana and unlawful possession of a firearm, and range from the early 1970s to the early 2000s, according to the prosecutor's office. 

He faced a sentencing range of three years and seven months to four years and nine months in prison.

The Interagency Narcotics Enforcement Team (INET) searched Whisler's residence in May 2010, finding about 15 plants growing in a bedroom, according to an INET report. Investigators found about 36 grams of marijuana packaged in bags inside and on a coffee table. Police also found a handgun in the room with the marijuana plants.

Whisler told police he had approval to grow medical marijuana, presenting police with the license.

The law allows people to grow marijuana, but it does not allow people to buy or sell it, according to the state Department of Health website.

Whisler admitted to police he sold marijuana to three people, telling them they were cancer patients, according to the police report.

He withdrew his statement during the trial, saying he wasn't giving or selling the drugs. He gave a friend a plant in the past, but was not intending to deliver it, according to the prosecutor's office.

"Mr. Whisler had a medical marijuana card and was shown to be possessing with the intent to deliver. The state consciously decided not to challenge the validity of the medical marijuana card," Deputy Prosecutor Tyson Hill said.

Hill asked Judge John Antosz to sentence Whisler at the high end of the range.

"It's not the first time that Mr. Whisler has been here for these charges," he said. "As you can see he has a previous conviction for delivery of cocaine and a previous conviction for delivery of marijuana. With the delivery of marijuana conviction at the same time, he also had a felony possession of a firearm."

Defense Attorney John Perry asked for a sentence lower than the sentencing range, saying the sentence is excessive in light of the purpose of the state's sentencing reform act.

Antosz pointed out the circumstance Perry cited applied to whether multiple crimes were sentenced consecutively or concurrently, and didn't apply in Whisler's case.

Perry continued, saying if the crime was committed a month later, the sentencing range would be lower.

"His last felony conviction before this one was way back in 2004," he said. 

Antosz asked if a mitigating circumstance existed in the law allowing him to use the time since Whisler's last conviction to depart from the sentencing range.

"The court may be correct on that," Perry said. "It is important that it has been quite a while, almost seven years, since Mr. Whisler's last felony conviction. He was discharged from prison on that case in June 2005 ... If the court doesn't feel it can depart, I would certainly ask for the low end of the range for that reason."

Perry said it seemed the jury convicted him of the drug charge because Whisler didn't have the written authorization required to provide marijuana to other people.

"He was also convicted of unlawful possession of a firearm, but the facts of the case certainly don't demonstrate that Mr. Whisler was using the firearm, that it was within his reach at the time," he said. "I know the jury convicted him, but there was evidence that (the gun) belonged to and was under the control of his roommate."

Whisler said when he started the process he was innocent, and he still believes he is innocent.

Antosz sentenced Whisler to three and a half years in prison.