Lawrence v. Peyton

• Decision Date: 04 October 1966
• Docket Number: No. 10530.,10530.
• Parties: Wilbur Thomas LAWRENCE, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

368 F.2d 294 (1966)

Wilbur Thomas LAWRENCE, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

No. 10530.

United States Court of Appeals Fourth Circuit.

Argued June 23, 1966.

Decided October 4, 1966.

William R. Waddell, Richmond, Va. (Court-assigned counsel) Battle, Neal, Harris, Minor & Williams, Richmond, Va., on brief, for appellant.

James Parker Jones, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen. and Reno S. Harp, III, Asst. Atty., Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge:

This is an appeal from the district court's refusal to issue a writ of habeas corpus after a plenary hearing.

On June 25, 1958, before the Circuit Court of the City of Richmond, the petitioner was convicted and sentenced in a recidivist proceeding. He was not represented at that hearing by counsel. On July 26, 1961, the petitioner completed serving his underlying criminal sentences. On February 19, 1962, the Supreme Court held in Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442, that the trial of Chewning, a Virginia recidivist, without counsel violated the Due Process Clause of the Fourteenth Amendment. On August 8, 1962, the State of Virginia, acting in response to Chewning, served notice on the petitioner that on September 5, 1962, he would be given a hearing on the validity of his recidivist trial held on June 25, 1958. At the September hearing, the June 1958 sentence was declared void upon motion of the petitioner's court-appointed counsel without objection by the Commonwealth. Thereupon the Commonwealth proceeded to try the petitioner on the information which had supported his June 1958 conviction and he was again convicted and sentenced. After an unsuccessful appeal to the Supreme Court of Appeals of Virginia (Lawrence v. Commonwealth, 206 Va. 51, 141 S.E.2d 735, decided April 26, 1965) this proceeding was commenced.

Preliminarily, the Supreme Court has held in numerous cases that the recidivist principle of an aggravated sentence for a subsequent offense does not constitute a new jeopardy. The Court found the principle well established in 1895. Moore v. State of Missouri, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301. Nor do we find any indication that the Court has questioned the constitutionality of that decision in any of the subsequent cases in which the practice was under attack. McDonald v. Com. of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1911); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 72 L.Ed. 1683 (1948). In Gryger the Court said:

"The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one. citing cases" Id. at 732, 68 S.Ct. at 1258.

The practice of imposing additional punishment for recidivism is coming under increasing attack by modern penologists. Recidivism and Virginia's "Come-Back" Law, 48 Va.L.Rev. 597 (1962). Observation teaches that the judge who sentences for the final underlying crime has in most cases already taken into account the prisoner's record. However, we are, of course, bound by these decisions of the Court and petitioner must, therefore, press his objections before that body.

Two contentions, which we will discuss seriatim, are pressed upon us by counsel for the petitioner. First, that the Virginia statute¹ is void as a matter of due process because it requires that recidivist hearings be held in the Richmond Circuit Court, with the result that they are conducted at different times and almost always by different judges from those who presided at the underlying criminal trials which take place in the many trial courts throughout the state. Counsel advances many cogent criticisms against the state's policy of separating the recidivist hearing from the trial upon the merits of the underlying criminal charge and contrasts the state's policy with that of Connecticut and other jurisdictions which require both the criminal charge and the recidivist charge to be heard by the same trier of fact but seriatim in order that knowledge of the latter may not prejudice the hearing on the prior charge. The state in turn points to certain advantages which it claims for the Virginia system. We do not, of course, need to consider these questions beyond the point of concluding as we have that the Virginia procedure does not violate the constitutional requirements of due process. The Virginia practice of a separate hearing of the two charges was present in the case of Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1911), and provided for as an alternative procedure in the West Virginia law. In that case, the Supreme Court expressly rejected the argument advanced by the appellant in this case, pointing out that the underlying facts supporting the recidivist charge were different from those supporting the criminal charge and consequently could be heard with fairness by a different judge. We are aware that the West Virginia statute provided for a fixed sentence while the Virginia statute is broadly discretionary. We cannot agree that this distinction would justify a different ruling, for under the Virginia statute the recidivist judge would be advertent to the prior criminal sentence and could take that sentence into consideration in fixing the recidivist sentence. The state also insists that the practice enables the judges handling the recidivist hearings to equalize the varying punishments meted out by the numerous trial judges throughout the state.

We turn now to the contention that the retrial of Lawrence for recidivism, at the instigation of the state and without his express consent after the expiration of his underlying sentence but while he was still in custody, constituted double jeopardy.² We take it to be settled law that, since the status of being a recidivist or an habitual criminal is not a crime in itself and the constitutional justification for a recidivist sentence in the face of a charge of double jeopardy is that it constituted not a new sentence but simply a stiffening of the punishment for the last crime, this additional penalty must be affixed either at the time of the last sentence or before that sentence is completed. Cf. Spry v. Boles, 299 F.2d 332 (4 Cir. 1962). In the absence of any extenuating circumstances to justify this delay, we would be inclined to hold with the appellant. Nor do we think the fact that the state had filed an information on June 25, 1958, within the term of the underlying sentence, would have validated the trial in September 1962, for such a delay after the termination of the underlying sentence would not have been "seasonable" within the rationale of the Virginia decision. In Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873), the Supreme Court held that after the valid part of a sentence had been satisfied, the prisoner could not then be resentenced to an additional punishment. Cf. Murphy v. Com. of Massachusetts, 177 U.S. 155, 160, 20 S.Ct. 639, 44 L.Ed. 711 (1900). The Supreme Court of Appeals of Virginia in the case of Deiter v. Commonwealth, 205 Va. 771, 777, 139 S.E.2d 788, 792 (1965), interpreted its statute to mean that it is applicable provided:

"(1) that the information is filed against the prisoner while he is serving the sentence which forms the basis thereof, and (2) that action is taken thereon before he is released from the penitentiary."

The Court further said:

"We hold that * * * the information * * * when timely filed * * serves as a detainer against the prisoner\'s release until it is seasonably acted upon and vests the court with power to enforce the provisions of the statute when the necessary ingredients are proven. That power is not divested as long as the information is outstanding and the prisoner lawfully remains under the control and supervision of the penitentiary authorities." Ibid.

We are, of course, bound by the Virginia court's interpretation of its statute, Johnson v. Tucker, 249 F.2d 650 (4 Cir. 1957), though we must independently determine whether the statute as so interpreted and applied to Lawrence's case applies an incorrect...