Redmon v. Peyton

• Decision Date: 05 December 1969
• Docket Number: No. 13741.,13741.
• Parties: John Henry REDMON, Appellee, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

420 F.2d 822 (1969)

John Henry REDMON, Appellee, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellant.

No. 13741.

United States Court of Appeals Fourth Circuit.

December 5, 1969.

John B. Gilmer, Richmond, Va., for appellee.

Edward J. White, Asst. Atty. Gen. of Va., Richmond, Va., for appellant.

PER CURIAM:

John Henry Redmon filed a petition for habeas corpus relief in the District Court, alleging that his sentence of ten years as a recidivist is invalid on the ground that certain constitutionally invalid prior convictions were used as a basis for imposing the enhanced punishment. The District Court, finding that two of the three supporting convictions were indeed obtained in violation of Redmon's constitutional rights, ordered that he be released from all restraints attributable to them, and particularly that he be released from his sentence as a third offender. The District Court further ruled, as to one of the two supporting convictions, that the State could not constitutionally retry Redmon on the underlying charge. From those rulings the respondent appeals to this court. We find that the District Court erred in its ruling as to one of the convictions and reverse the order granting relief.

The principal sentence under attack is Redmon's ten year sentence as a third offender imposed under the provisions of the Virginia recidivist statute, Va. Code § 53-293. In Redmon's petition he alleged numerous constitutional defects in the recidivist proceeding itself as well as in the convictions for substantive offenses which formed the basis for the recidivist sentence. The District Court denied relief, holding that the claims relating to the recidivist proceeding were without merit, and that the sentences for substantive convictions, having been fully served, could not be attacked in a habeas corpus proceeding. We affirmed the District Court's order relating to the recidivist proceedings, but remanded the case for consideration of the validity of the underlying convictions, holding that habeas corpus may appropriately be used to contest the validity of a fully served sentence which forms the basis for enhanced punishment as a recidivist. Redmon v. Peyton, No. 12,088, mem. dec. (4 Cir., July 22, 1968). On remand the District Court considered three of the four convictions claimed by Redmon to underlie his recidivist sentence, and found two of them to have been unconstitutionally obtained.

The convictions and sentences under attack are listed as follows: (1) a conviction for grand larceny, obtained on January 7, 1957 in the Circuit Court of Gloucester County, Virginia, and two year sentence imposed on April 2, 1957; (2) a conviction for statutory burglary, obtained on March 4, 1957, also in the Gloucester County Circuit Court, and two year concurrent sentence imposed on April 2, 1957; (3) a conviction and two year sentence for unauthorized use of an automobile, obtained on January 26, 1960 in the Gloucester County Circuit Court; and (4) a conviction and two year sentence (with one year concurrent) for unauthorized use of an automobile, obtained on January 29, 1960 in the Mathews County Circuit Court. Each of the convictions is attacked on separate grounds. Redmon contends that the first 1957 conviction is invalid in that he was without counsel when he was certified to be tried as an adult, and that the records falsely represented his age as seventeen, when he was in fact fifteen years of age.¹ The second 1957 conviction is attacked on the same grounds, and on the additional ground that he was never certified to be tried as an adult as required by Va.Code § 16.1-176 (a). This last contention was added after the case was remanded to the District Court. The 1960 Gloucester County conviction is attacked on the ground that Redmon was deprived of his right to appeal therefrom, and the 1960 Mathews County conviction is claimed to be invalid on the ground of ineffective representation by counsel.

The District Court granted Redmon's petition as to the 1957 burglary conviction,² holding that the requirements of Va.Code § 16.1-176, relating to transfer of cases involving juvenile offenders from the juvenile courts to courts of record for trial as an adult, were not complied with, and that this non-compliance deprived the Circuit Court of jurisdiction to try him at all. The District Court further held that since Redmon is now legally an adult and cannot be placed in the same position as he was in before he was improperly tried, the State could not retry him now as an adult. We disagree for reasons stated below and, consequently, reverse the District Court on its ruling as to the 1957 burglary conviction.

The chronology of the events leading to Redmon's two 1957 convictions is of considerable importance in a consideration of their validity. On October 19, 1956 a warrant was issued against Redmon charging him with larceny of an automobile. (A second warrant charging a traffic offense was issued on October 24.) On October 31 the Juvenile and Domestic Relations Court of Gloucester County certified Redmon for trial as an adult on the larceny charge. The pertinent part of the order is as follows: "IT APPEARING TO THE COURT, from investigation, that this Juvenile should be sent to the Circuit Court for the County of Gloucester, to be there dealt with as an adult for the felony with which he is charged, the COURT DOTH SO ORDER." The record does not show the nature or extent of the investigation referred to. Counsel was appointed to represent Redmon on November 5. On the same day the Circuit Court ordered an investigation made of "the physical, mental and social condition and personality of John Henry Redmond sic, and the facts and circumstances surrounding the violation of the law which is the cause of his being before this Court, pursuant to Section 16.1-176 of the Code of Virginia 1950 and amendments thereto. * * *" On January 7, 1957 Redmon entered a plea of guilty to the charge, after a copy of the investigation report had been furnished him and his counsel, and after he had been allowed to examine the officer making the report and to offer evidence in his own behalf. Imposition of sentence was suspended, and Redmon was placed on probation for a period of six months.

Less than two months later, on March 2, a warrant was issued for Redmon's arrest for a burglary committed on February 26. The case does not appear to have been referred to the Juvenile and Domestic Relations Court at any time, but was presented to the grand jury, which returned an indictment on March 4. The same attorney who had previously represented Redmon was appointed to represent him on the new charge. With the understanding that he would be formally appointed, he had previously discussed the charge with Redmon and his mother, as well as with the probation officer before the indictment was returned. On the day the indictment was returned, the matter proceeded to trial without a further investigation, and without action by the juvenile court, as explained by the record entry.

"And it further appearing to the Court that the accused was at the time the crime mentioned was alleged to have been committed under the age of 18 years but over the age of 14 years, to-wit: 16 years, born January 14th, 1941 and having before it the information required by Section 16.1-176 of the Code of Virginia, acts 1956, as shown by a copy of report of investigation made by the proper probation and parole officer of this Court in another cause pending in this Court against the said John Henry Redmond, called in said report John Henry Redmon, as case No. 944 — 1956, this day filed, deems any further investigation under Section 16.1-176 unnecessary."

Redmon then entered a plea of guilty to the charge of statutory burglary. On April 2 he received concurrent sentences of two years for the two offenses.

The District Court's conclusion that Redmon's conviction is void is premised on the following argument: Under Virginia law the jurisdiction of any court of record to try as an adult a person between the ages of fourteen and eighteen years is dependent entirely upon a valid certification made by a juvenile court. To be valid, such a certification must have been made after a hearing with notice to the accused and his parents, Peyton v. French, 207 Va. 73, 147 S.E.2d 739 (1966), or if his parents are unknown or dead, with notice to a guardian ad litem appointed to protect his interests, Pruitt v. Peyton, 209 Va. 532, 165 S.E.2d 288 (1969), and after the court has obtained a report of an investigation of the background of the accused pursuant to Va.Code § 16.1-176(b), Tilton v. Commonwealth, 196 Va. 774, 85 S.E.2d 368 (1955). The only exception to the jurisdictional prerequisite of a prior valid certification by a juvenile court is in a proceeding to which the provisions of Va.Code § 16.1-175³ apply. The statute permits the judge of the court of record to make the determination himself as to whether the accused should be tried as an adult. The provisions of § 16.1-175 do not apply to give validity to a determination made by the court of record unless the proceedings in that court were begun in the mistaken belief that the accused was not in fact a juvenile. In all other cases the court of record has no discretion to exercise, and thus must transfer to the juvenile court a proceeding which has been initiated without a prior valid certification by the juvenile court in the first instance. Since it was known that Redmon was sixteen years of age at the time his trial commenced in March, the District Court concluded that the Circuit Court had no discretion to exercise under § 16.1-175 and was required to transfer the case to the juvenile court. Thus its failure to take such action deprived it of jurisdiction to try him as an adult.

We think the District Court misconstrued the effect of the applicable Virginia statutes; the cases decided by the Virginia Supreme...