Lawrence v. Peyton, 10530.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: HAYNSWORTH, , and SOBELOFF and J. SPENCER BELL, Circuit
• Citation: 368 F.2d 294
• Parties: Wilbur Thomas LAWRENCE, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Docket Number: No. 10530.,10530.
• Decision Date: 04 October 1966

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

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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

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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...