Grace v. Peyton
| Decision Date | 16 January 1967 |
| Citation | 152 S.E.2d 292,207 Va. 688 |
| Parties | Kearney P. GRACE v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary. |
| Court | Virginia Supreme Court |
James Judson Fox, Richmond, for petitioner.
Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for respondent.
Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
Kearney P. Grace, a convict in the Virginia State Penitentiary, invoking the original jurisdiction of this Court, filed herein his Habeas corpus petition Pro se on April 24, 1965. He alleged a long series of arrests, convictions, and sentences to terms in the penitentiary; that the records kept by C. C. Peyton, Superintendent of the Virginia State Penitentiary, the respondent, were 'so confused that he (Grace) does not know for sure which sentence he is now serving;' that he is presently detained unlawfully by virtue of a sentence imposed on him by the Circuit Court of the City of Richmond on December 6, 1939, in that he was not represented by counsel upon his trial; that the expiration date of his several sentence should be computed in the order of their imposition; and prayed that the correct discharge date of his several sentences be determined.
Respondent answered, averring that petitioner was detained pursuant to a sentence imposed upon him in the Circuit Court of Scott County on August 3, 1932, and not pursuant to the sentence of which he complianed; and that all his sentences had been computed in conformity with the statutes of Virginia. Filed as an exhibit therewith is a certificate of Stuart J. Melton, Director, Bureau of Records and Criminal Identification, Virginia State Penitentiary, showing the prison record of the petitioner.
The case came on to be heard on the pleadings, and on the records and exhibits of the State Penitentiary.
The evidence shows the convictions of, and sentences imposed upon, Grace in the following chronological order:
On August 3, 1932, he was sentenced by the Circuit Court of Scott County to serve a term of thirty years for murder in the first degree. He was received in the penitentiary on August 17, 1932, and assigned No. 28980.
On December 6, 1939, he was sentenced by the Circuit Court of the City of Richmond to serve a term of one year for escape. He subsequently escaped, and on October 14, 1942, was sentenced to serve one year for that offense.
On November 26, 1945, he was sentenced in the Circuit Court of Augusta County to serve one year for another escape.
On March 6, 1946, in the Circuit Court of Augusta County, he was sentenced to serve one year for grand larceny. On the same day and in the same court, he was sentenced to serve one year for housebreaking and larceny, which sentence was ordered to run concurrently with the next above sentence.
The above sentences were on February 14, 1947, commuted from thirty-three years to thirty-two years and seven months.
On October 8, 1947, Grace was paroled. He was arrested on October 31, 1954, for violation of parole, and returned to the penitentiary on December 3, 1954.
On November 15, 1956, his sentences were commuted to thirty-two years and five months. He was thereafter paroled a second time on March 4, 1957.
While out on this parole, he was tried and convicted in two courts. On February 4, 1958, he was sentenced by the Circuit Court of Washington County to serve two years, subject to a credit for the time spent in jail awaiting trial, from January 9, 1958 to February 4, 1958, for statutory burglary.
On February 6, 1958, he was convicted in the Corporation Court of the City of Bristol, and sentenced to serve one year on each of the two charges for statutory burglary, the sentences not to run concurrently.
After the convictions in Washington County and Bristol, he was returned to the penitentiary on February 25, 1958, and assigned Prison No. 72936.
The Washington County sentence, commencing on February 4, 1958, with credit for good time, and the time spent in jail, expired on May 9, 1959. The first one year sentence imposed in Bristol, with allowance for good time, expired on January 9, 1960. The second one year sentence imposed in Bristol would have expired on September 9, 1960, had not Grace escaped on September 5, 1960, four days before that sentence would have expired. Grace was arrested on November 13, 1960, and returned to the penitentiary on December 7, 1960. Because of his escape, he lost two months and nineteen days good time allowance, and two months and eight days while on escape. Therefore, the expiration of his second one year Bristol sentence, instead of expiring on September 9, 1960, occurred on February 6, 1961.
On March 10, 1958, the 1957 parole of Grace, as Convict No. 28980, was revoked. After completion of the sentence expiring on February 6, 1961, he had eight years, four months and twenty-seven days 'flat time' (actual time with good time allowance anticipated) left to serve, that is, six years, four months and twenty-seven days of the Scott County sentence imposed on August 3, 1932, and twenty-four months (good time anticipated) for the three escape sentences mentioned, two in the Richmond City Circuit Court and one in the Augusta County Circuit Court. Thus, the thirty-year sentence will not expire until July 3, 1967; the Circuit Court of the City of Richmond sentence of December 6, 1939, on March 3, 1968; the second escape sentence of October 14, 1942, in the same Court, on November 3, 1968; and the one year sentence imposed on November 26, 1945, and Augusta County Circuit Court, on July 3, 1969.
In addition, Grace was convicted on June 25, 1958, in the Circuit Court of the City of Richmond, as a second offender, and sentenced to one year. This sentence was declared null and void on July 11, 1963. On March 15, 1961, Grace was sentenced to serve three years by the Circuit Court of the City of Richmond, for escape, one year of the term to be suspended during good behavior. Consequently, this sentence expires on November 3, 1970.
On July 11, 1963, petitioner was retried in the Circuit Court of the City of Richmond, as a second offender, and a sentence of one year was imposed, but suspended for good behavior.
In response to an inquiry from Grace concerning the sentence of two years in the Circuit Court of Washington County, Stuart J. Melton, Director of the Bureau of Records, on November 20, 1964, informed Grace that upon his commitment to the penitentiary, the 'order' of that court was not forwarded, and he was not aware that Grace had received the sentence until the 'court order' was received on October 27, 1964; and that the 'order' was then placed in the file of Grace and two years added to his total term of confinement.
Again, on February 10, 1965, in reply to further inquiry of Grace, Melton advised petitioner that: ...
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Thacker v. Peyton
...it was the law of Virginia that habeas corpus was unavailable except to contest a sentence currently being served. See Grace v. Peyton, 207 Va. 688, 152 S.E.2d 292 (1967); Peyton v. Williams, 206 Va. 595, 145 S. E.2d 147 (1965). For this reason we held in Rowe v. Peyton, 383 F.2d 709 (4th C......
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Thacker v. Peyton
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