Martin v. Leverette

Decision Date10 May 1978
Docket NumberNo. 14082,14082
Citation244 S.E.2d 39,161 W.Va. 547
CourtWest Virginia Supreme Court
PartiesWilliam T. MARTIN, Jr. v. Bobby J. LEVERETTE, Superintendent, West Virginia Penitentiary as successor to Arthur L. McKenzie.

Syllabus by the Court

1. The Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution require that credit for time spent in jail, either pre-trial or post-trial, shall be credited on an indeterminate sentence where the underlying offense is bailable.

2. Under the provisions of the habitual criminal statute, W.Va.Code, 61-11-18, where the additional sentence of five years as authorized thereunder is imposed on an indeterminate sentence, it shall be added to the maximum term of the indeterminate sentence and shall not be given as a separate sentence to run consecutive to the indeterminate sentence.

3. Selective enforcement by a prosecutor of the habitual criminal statute, W.Va.Code, 61-11-18, and the enhanced sentence provided thereunder, are not per se violative of the Equal Protection or Cruel and Unusual Punishment Clauses of the West Virginia or the United States Constitutions.

Shaffer & Wiley, Edwin B. Wiley, Princeton, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., David F. Greene, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

This appeal is from the partial denial of a writ of habeas corpus by the Circuit Court of Mercer County. Appellant had been given a life sentence in 1970 under our habitual criminal statute, W.Va. Code, 61-11-18. This was based upon the 1970 conviction for burglary and two prior felonies, one for armed robbery and the other for the interstate transportation of a stolen motor vehicle. In 1976 the United States District Court voided the conviction for interstate transportation of a stolen motor vehicle. Thereafter, in August, 1976, appellant filed an original application for habeas corpus in this Court, which was granted returnable to the Circuit Court of Mercer County.

Prior to the hearing in the Circuit Court of Mercer County, the regular circuit judge voluntarily recused himself and this Court assigned another judge to hear the matter. At the hearing in October, 1976, it was conceded by the State that with the voiding of one of the underlying convictions, the life sentence under the habitual criminal statute was invalid.

The judge temporarily assigned for the habeas corpus hearing entered an order voiding the life sentence. For reasons not apparent in the record, this judge did not proceed to resentence the appellant, but transferred the matter for resentencing back to the regular circuit judge. Over the objection of the appellant, the regular circuit judge sentenced the appellant to not less than one nor more than fifteen years on the original burglary conviction which had occurred in 1970, and also imposed an additional five year sentence for the prior felony conviction of armed robbery, which "said additional five year sentence to run consecutively with the sentence imposed herein."

At the time of the resentencing the regular judge gave appellant credit for time spent serving the life sentence, but denied him credit for time spent in jail prior to and after the trial on the burglary charge. Appellant also sought at the resentencing hearing to introduce evidence that W.Va. Code, 61-11-18, as it applied to the additional five year sentence, was unconstitutional. Further, claim is made that court incorrectly imposed the additional five years by adding it as a separate sentence to run consecutive to the underlying one to fifteen year sentence.

The question of whether a defendant is constitutionally entitled to credit for time spent in jail prior to trial and after trial awaiting sentence is a matter of first impression in this Court. 1 By W.Va. Code, 61-11-24, a sentencing court is empowered to give such credit for pre-trial confinement, but is not required to do so. 2 The statute is silent as to post-trial jail time.

Appellants argue that this credit must be made mandatory in light of principles stemming from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and a line of Fourth Circuit Court of Appeals cases, the latest of which are Vickers v. Haynes, 539 F.2d 1005 (4th Cir. 1976), and Durkin v. Davis, 538 F.2d 1037 (4th Cir. 1976). These decisions suggest that the Double Jeopardy Clause, as well as the Equal Protection Clause, require credit on the sentence for time spent in jail on the underlying criminal charge, at least in those instances where the maximum sentence is imposed, as here.

Pearce's double jeopardy holding of multiple punishment for the same offense is not foreign to this Court, as it formed part of the basis of our holding in Conner v. Griffith, W.Va., 238 S.E.2d 529, 530 (1977). The equal protection argument runs on the premise that an invidious discrimination based on wealth occurs where the indigent defendant, unable to obtain bail, stays in jail, while his wealthier counterpart is free on bond and, receiving the same ultimate sentence, will have served less total time since he had no jail time. Durkin v. Davis, supra.

Indeed, if the Equal Protection Clause blocks unequal treatment of criminal defendants based on indigency, as clearly settled in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (prohibiting imprisonment as a substitute for paying fines) then we can hardly imagine a more compelling example than the indigent criminal defendant who remains in jail because he cannot make bond and receives no credit for this time.

Certainly the modern trend is to constitutionally require credit for pre- and post-conviction jail time absent some extraordinary factors. Annot., 77 A.L.R.3d 182 (1977). 3 We are confronted in this case with a sentence that is the maximum that can be imposed. The principal offense, burglary, was bailable, and therefore any questions that might be left open in Vickers and Durkin are not present in this case. We recognize that while these cases are based on the United States Constitution, we are of the view to anchor the right to such credit on the provisions of our own Constitution. We, therefore, conclude that under the Double Jeopardy and Equal Protection Clauses of the West Virginia Constitution, Article III, Sections 10 and 17, time spent in jail, either pre-trial or post-trial, shall be credited on the sentence. It was error for the trial court not to give such credit at the resentencing hearing.

The next assignment of error relates to the propriety of the resentencing of appellant to one to fifteen on the 1970 burglary conviction and an additional five years to run consecutively for the prior felony conviction under the habitual criminal statute. 4 This Court in three prior cases has dealt with this same issue. In State ex rel. Holstein v. Boles, 150 W.Va. 83, 143 S.E.2d 821 (1965); State ex rel. Curtis v. Boles, 150 W.Va. 79, 143 S.E.2d 824 (1965); and State ex rel. Hill v. Boles, 149 W.Va. 779, 143 S.E.2d 467 (1965), we held that where an additional five year sentence is imposed under the habitual criminal statute, it must be added to and incorporated in the underlying sentence to form a single sentence.

In Holstein and Curtis, the underlying sentences were one to ten years and the Court made it plain that when the prior felony conviction carrying five additional years under the habitual criminal statute was imposed, the appropriate sentence would be one to fifteen years. In Hill, the underlying conviction was a one to five year and the enhanced five year term when added to it resulted in a one to ten year sentence. See also State ex rel. Wright v. Boles, 150 W.Va. 381, 146 S.E.2d 524 (1966), and State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965).

In the present case two separate sentences were imposed, a one to fifteen on the principal charge and an additional five years under the habitual criminal statute to run consecutively. The result is contrary to our prior case law which requires a single sentence of one to twenty years.

The statutory language is clear where, as here, an indeterminate sentence is involved for the principal offense, "five years shall be added to the maximum term of imprisonment otherwise provided for under such sentence." The correct sentence would be one to twenty years.

Here, the sentences would require that the original term of one to fifteen years be served before the second sentence of five years would start. This result is contrary to the statutory language and our prior case law and constitutes reversible error.

Appellant claims it was error for the sentencing court to refuse his proffer to show that the habitual criminal statute was applied in a selective and discriminatory manner as to him, and therefore in violation of the Equal Protection Clause. This precise issue was decided in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), where the Supreme Court, in reviewing the application of our habitual criminal statute, stated:

"Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. Oregon v. Hicks, supra ; cf. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (by implication)." (368 U.S. at 456, 82 S.Ct. at 506)

The foregoing statement from Oyler has been followed by numerous federal cases, not only those which have used this principle to fend off attacks...

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