Lawrence v. Com.

• Decision Date: 26 April 1965
• Citation: 141 S.E.2d 735,206 Va. 51
• Parties: Wilbur Thomas LAWRENCE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 735

141 S.E.2d 735

206 Va. 51

Wilbur Thomas LAWRENCE v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

April 26, 1965.

Ernest H. Dervishian, Richmond (Dervishian, Hutzler & Lowenstein, Richmond, on the brief), for plaintiff in error.

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

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

This is an appeal from a judgment wherein Wilbur Thomas Lawrence, hereinafter referred to as petitioner, was found to be a four-time offender under the recidivist statute, § 53-296, Code of 1950, 1958 Repl. Vol., pursuant to an information filed on June 25, 1958, by the Commonwealth's attorney for the city of Richmond, and sentenced to serve a term of fifteen years in the Virginia State Penitentiary, of which five years was suspended. A prior sentence imposed on the petitioner on June 25, 1958, under the information had been declared void by the court below under the holding of the United States Supreme Court in Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442 (Feb. 19, 1962), that the denial of counsel at a recidivist hearing violated due process of law.

Petitioner contends that the trial court was without jurisdiction and power to try him on the information because (1) Code § 53-296 violates the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution; (2) the information did not comply with Code § 19.1-162 and was vague, misleading and incomplete; (3) the sentencing to additional confinement constituted double jeopardy; and (4) he had fully served all his felony convictions and was not lawfully held in the penitentiary.

On September 5, 1962, the petitioner and his court-appointed counsel appeared before the court below pursuant to a notice that the attorney for the Commonwealth would ask the court to act upon the information filed against him on June 25, 1958, alleging that he had theretofore been four times convicted and sentenced to the penitentiary. The offenses, dates and places of the felony convictions and sentences were set out in the notice to the petitioner.

Immediately after the court declared void the sentence theretofore imposed under the 1958 information, pursuant to the holding in the Chewning case, supra, the clerk of the court advised the petitioner that the Commonwealth's attorney had filed an information against him on June 25, 1958, alleging that he had been four times convicted and sentenced to the penitentiary for felonies; that he did not have to admit or deny that fact or to plead unless he wished to do so, to which the petitioner stated that he had been four times convicted and sentenced to the penitentiary on felony charges.

Petitioner's motion to dismiss this proceeding was overruled, and it appearing from the records filed in the proceeding that the petitioner had been four times convicted and sentenced to the penitentiary on felony charges, the court sentenced him to further confinement in the penitentiary for the term heretofore mentioned, and he was given credit under the court's order for the time already served under the void sentence of June 25, 1958.

Petitioner's contentions will be hereinafter dealt with in the order assigned above.

We have repeatedly held that Code § 53-296 is constitutional and that it does not violate the due process and equal protection of the laws guaranteed by either the Constitution of the United States or the Constitution of Virginia. Sims v. Cunningham, 203 Va. 347, 351, 354, 355, 124 S.E.2d 221, 224-226; Tyson v. Hening, 205 Va. 389, 394, 136 S.E.2d 832, 836. The validity of similar statutes has also been upheld by the United States Supreme Court and the highest courts of numerous states. Moore v. Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. See 25 Am.Jur., Habitual Criminals, §§ 7 and 8, pp. 264, 265, and the cases and annotations referred to in the footnotes in each section.

Petitioner says that the information on which he was proceeded against does not comply with the requirements of § 19.1- 162 ¹, as amended, Code of 1950, 1960 Repl. Vol., and that it is vague, misleading and incomplete.

Code § 19.1-162 is a criminal statute and applies only to a criminal proceeding. This proceeding is under § 53-296, the recidivist statute, and § 19.1-162 is not applicable. In the recent case of Tyson v. Hening, supra, 205 Va. at pp. 394, 395, 136 S.E.2d at p. 836, we said:

'Recidivist statutes and habitual criminal acts create 'no new offense' but merely provide 'a proceeding' by which to determine the penalty to be imposed on one previously convicted of a crime. 'In other words, it is not a crime to be an habitual criminal, it is, rather, a status' which makes one convicted of more than one felony liable to a heavier penalty.' Citing Little v. Gladden, 202 Ore, 16, 273 P.2d 443, 444.

The sufficiency of the information is governed solely by the language of § 53-296, and so much of the section that is pertinent here reads as follows:

'When a person convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if it shall come to the knowledge of the Director of the Department of Welfare and Institutions that he has been sentenced to a like punishment in the United States prior to the sentence he is then serving, the Director of the Department of Welfare and Institutions shall give information thereof without delay to the Circuit Court of the City of Richmond. Such court shall cause the convict to be brought before it, to be tried upon an information filed, alleging the existence of records of prior convictions and the identity of the prisoner with the person named in each * * *.' (Italics supplied.)

The information alleged that:

'* * * Wilbur Thomas Lawrence, a convict in the penitentiary of Virginia, heretofore was convicted of four offenses against the laws of this Commonwealth, then and now punishable by confinement in the penitentiary, and was sentenced to confinement in the said penitentiary for...