Deiter v. Com.

• Decision Date: 18 January 1965
• Citation: 205 Va. 771,139 S.E.2d 788
• Parties: Urban Leroy DEITER, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 788

139 S.E.2d 788

205 Va. 771

Urban Leroy DEITER, Jr. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Jan. 18, 1965.

Rufus G. Coldwell, Jr., Richmond (Browder, Russell & Morris, Richmond, on brief), for plaintiff in error.

Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and BUCHANAN, SNEAD, I'ANSON and CARRICO, JJ.

CARRICO, Justice.

This appeal presents the question of whether a prisoner can be sentenced as a recidivist upon an information, timely filed, at a time when, although still an inmate in the penitentiary, he has completed serving the sentence upon which the information is based.

The situation developed, chronologically, in the following manner:

On November 1, 1960, Urban Leroy Deiter, Jr., was convicted of the offense of breaking and entering in the Circuit Court of Nelson County. He was sentenced to serve two years in the penitentiary, and was received therein pursuant to the order of conviction.

This was Deiter's third instance of conviction of felony and sentence to the penitentiary. Accordingly, on December 14, 1960, an information was filed in the Circuit Court of the city of Richmond by the Attorney for the Commonwealth, pursuant to the recidivist statute, Code, § 53-296. ¹

On the same date, Deiter was brought before the court, tried on the information and sentenced to serve an additional term of ten years in the penitentiary, with two years thereof suspended. He did not have counsel of his own choice nor was one provided for him by the court.

On April 11, 1961, Deiter was convicted of the offense of escape and sentenced to serve one year in the penitentiary.

On February 19, 1962, the Supreme Court of the United States decided the case of Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442, holding that under the Virginia recidivist statute, the denial of counsel at the recidivist hearing violated due process of law.

Following this decision, Deiter, on April 26, 1962, filed a petition for a writ of habeas corpus in the Circuit Court of the city of Richmond praying that his recidivist sentence of December 14, 1960, be declared null and void and set aside because he was not represented by counsel at his hearing.

On May 16, 1962, Deiter completed service of the sentence imposed upon him in Nelson County and he commenced serving his recidivist sentence.

On August 21, 1962, the Attorney for the Commonwealth gave notice to the court, Deiter and his counsel that he intended to proceed on the information previously filed on December 14, 1960.

On November 29, 1962, after several continuances granted on motion of Deiter's counsel, the petition for habeas corpus was heard by the court. An order was entered finding that the prisoner was then serving the recidivist sentence of December 14, 1960, and that the sentence was void by virtue of the Chewning decision. The order further stated that it appeared that the Attorney for the Commonwealth intended to proceed on the information of December 14, 1960; that Deiter had been convicted of the offense of escape and sentenced to serve one year in the penitentiary; that the prisoner had served six months and thirteen days under the void recidivist sentence but that such time was not sufficient to satisfy the escape sentence, and that he was, therefore, remanded to the custody of the superintendent of the penitentiary, 'pending his trial on the aforesaid Information.'

Immediately upon taking this action, on the same day and without interruption, the court proceeded to hear the information of December 14, 1960, upon the statement of 'the defendant in person and by counsel * * * that he desired to be tried on this date.'

Proof was submitted by the Commonwealth of the previous convictions and sentences of Deiter and he admitted in open court, after being duly cautioned, that he was 'the same person mentioned in the several records of conviction.' The court also heard Deiter's plea for a suspended sentence and took evidence concerning his background. At the conclusion of the hearing, the court sentenced Deiter to 'further confinement in the Penitentiary for a term of ten years' with credit for six months and thirteen days served on the void sentence and with five years suspended.

Deiter was granted a writ of error and counsel was appointed to represent him before this court. In his brief and in oral argument, counsel has ably presented the contention that:

'The Circuit Court of the City of Richmond was without power to sentence [Deiter] as a recidivist, he having served all sentences for convictions alleged in the Information prior to the said trial of November 29, 1962, and that, therefore, there was no existing sentence for which the punishment could be enhanced; and that the Court in so doing subjected [Deiter] to double jeopardy.'

Deiter cites our ruling that a recidivist sentence 'is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.' Sims v. Cunningham, 203 Va. 347, 353, 124 S.E.2d 221, 225. He also relies on our holding that '[i]t is not 'a crime to be a multiple offender' nor is it an independent offense, but rather a status under which the penalty is enhanced.' Tyson v. Hening, 205 Va. 389, 395, 136 S.E.2d 832, 836.

Deiter then asks, how can the punishment for a crime be enhanced when the judgment imposed therefor has been fully satisfied?

The answer, Deiter says, is to be found in the case of Reynolds v. Cochran, Fla., 138 So.2d 500, upon which he places great reliance.

Reynolds was convicted of the offense of grand larceny and sentenced to two years in prison. He served his sentence and was released from custody. Two months after his discharge, he was arrested and, for the first time, informed against as a second offender, based upon the grand larceny conviction and an earlier conviction of robbery. He was 'found guilty of the offense of 'Second Offender" and sentenced to the state prison for ten years.

Reynolds filed an original petition for habeas corpus in the Supreme Court of Florida, which was dismissed without a hearing. He then sought and was granted certiorari to the Supreme Court of the United States. The latter court reversed and remanded the case for a hearing to afford Reynolds an opportunity to prove that he was denied assistance of counsel at his recidivist hearing. The Supreme Court noted that Reynolds also contended that his confinement was not authorized by the Florida recidivist statute because he had already served the sentences imposed upon each of his prior convictions and that such confinement violated constitutional prohibitions against ex post facto laws and double jeopardy. The court declined to pass on these contentions but did say of them that 'they certainly cannot be fairly characterized as frivolous.' Reynolds v. Cochran, 365 U.S. 525, 81 S.Ct. 723, 5 L.Ed.2d 754.

On the return of the case, the Supreme Court of Florida ordered the discharge of Reynolds from custody. In its opinion, the court stated that the question to be decided was:

'Does a Florida court have the right and power to apply the enhanced sentence procedures of §§ 775.09 and 775.11 to a twice-convicted felon who has completed all lawful sentences imposed against him pursuant to his last offense, and who has been discharged from custody?' [Emphasis added.]

The court said that the answer to the question was:

'* * * [W]e now hold that our courts may not sentence a habitual offender to the enhanced punishment * * * once said offender has fully satisfied the judgment imposed against him pursuant to his conviction for his last offense.'

* * *

* * *

'* * * We believe the better view requires a construction which limits the applicability of §§ 775.09 and 775.11 to the period of time during which a convicted felon has not completed the lawful sentence imposed against him for his last felonious offense.'

We do not consider the Florida ruling persuasive in this case. In the first place, the holding of the court that the application of the statute was limited 'to the period of time during which a convicted felon has not completed' the sentence for his last crime, was mere dictum. It was not responsive to the question presented and was not necessary to a disposition of the case.

Furthermore, when he was informed against, Reynolds was out of the penitentiary and had been free from the control and supervision of prison authorities for two months. When he served his sentence and was released, without an information previously having been filed against him, he had every right to assume that no enhanced punishment was to be applied in his case.

We do not consider that Deiter's claims should be 'characterized as frivolous.' But that does not necessarily mean that they have merit. The situation found in Deiter's case is quite different from that existing in the Reynolds case.

The information against Deiter was timely filed and his first trial and sentence thereon took place under circumstances which completely satisfied the requirements of Code, § 53-296.

Such trial and sentence,...