Rutherford v. Blankenship, Civ. A. No. 77-0141-A.

• Citation: 468 F. Supp. 1357
• Decision Date: 13 March 1979
• Docket Number: Civ. A. No. 77-0141-A.
• Parties: Harold Dean RUTHERFORD, Petitioner, v. W. D. BLANKENSHIP et al., Respondents.
• Court: U.S. District Court — Western District of Virginia

468 F. Supp. 1357

Harold Dean RUTHERFORD, Petitioner, v. W. D. BLANKENSHIP et al., Respondents.

Civ. A. No. 77-0141-A.

United States District Court, W. D. Virginia, Abingdon Division.

March 13, 1979.

James M. Shull, Quillen & Carter, Gate City, Va., for petitioner.

Jim L. Chin, Asst. Atty. Gen., Richmond, Va., for respondents.

MEMORANDUM OPINION AND ORDER

GLEN M. WILLIAMS, District Judge.

On November 13, 1973, in the Circuit Court of Carroll County, petitioner, Harold Dean Rutherford, entered pleas of guilty to malicious wounding and driving an automobile after having been adjudicated an habitual offender. He is now serving a sentence of ten years imprisonment imposed in relation to the malicious wounding plea. Petitioner petitioned the Virginia Supreme Court for a writ of habeas corpus maintaining that his pleas were void due to an improper condition requiring him to leave the State of Virginia, that they were involuntarily entered, that the circuit court lacked jurisdiction to order him confined, and that a probationary period was revoked when petitioner was, in fact, not sentenced to a period of probation. The Virginia Supreme Court denied his petition, and he now seeks a writ of habeas corpus from the district court pursuant to Title 28 U.S.C. § 2254. An evidentiary hearing was held, and this opinion shall constitute the court's findings of fact and conclusions of law.

Petitioner's pleas of guilty were entered on November 13, 1973, pursuant to a plea bargaining agreement whereby the petitioner was to be sentenced to ten years in the penitentiary on the malicious wounding conviction with the sentence to be suspended, and one year unsuspended on the habitual offender conviction to run concurrently with a twelve-month sentence which was previously imposed in relation to a third charge. As a further part of the plea agreement, petitioner agreed to leave the State of Virginia upon expiration of his one-year term.

Pursuant to his pleas of guilty, the court ordered petitioner to immediately begin serving the one-year sentence and with respect to the remaining ten-year sentence the court order stated, in part, as follows:

Whereupon the accused by counsel moved the Court to suspend the aforesaid sentence of confinement in the penitentiary of this Commonwealth for a period of ten years and place the defendant on probation and the Court not being advised takes the matter under advisement until after release from the penitentiary on another charge.

Testimony reveals that the purpose of the wording of the order was to permit the court to carry out the agreement for the banishment of the petitioner from Virginia. While the petitioner testified that he knew nothing about the banishment until receipt of a letter from his defense attorney shortly before being released from the service of his one-year sentence, the evidence establishes that the petitioner entered his pleas of guilty with full knowledge and understanding of the charges against him, the terms and conditions of the plea agreement, including his banishment from Virginia, and the consequences of his pleas.

When petitioner was released in May of 1974, Carroll County sheriff's deputies picked him up at the correctional unit, took him by his mother's home to get his belongings, and placed him on a bus to Winston-Salem, North Carolina. He returned, however, to Carroll County in December, 1974, and on December 9, 1974, the state judge issued the following order because petitioner had returned to Virginia, thereby violating the banishment condition:

It appearing to the Court that the said Harold Dean Rutherford was convicted of a felony at a former term of this Court and was sentenced to confinement in the penitentiary of this Commonwealth for a period of ten years and a motion was made to suspend the said ten years sentence and the Court not being advised took said motion under advisement.

Therefore the Court doth order that the Clerk of this Court issue a capias to perform judgment and deliver the same to the Sheriff of this County or any other Police Officer for the arrest of the said Harold Dean Rutherford . . ..

The petitioner appeared before the judge of the Circuit Court of Carroll County on December 16, 1974, and the court entered an order which reads in pertinent part as follows:

It appearing to the Court that the defendant, Harold Dean Rutherford, at a former term of this Court on November 13, 1973, entered a plea of guilty to a charge in an indictment alleging a felony, to-wit: Maiming. The Court sentenced the said Harold Dean Rutherford to ten years confinement in the penitentiary of this Commonwealth, however, motion was made by the defendant with counsel to suspend the aforesaid sentence and place the defendant on probation and the Court not being advised took time to consider said motion.

And the Court having maturely considered said motion doth order that the defendant serve the penitentiary sentence of ten years, however, in lieu of serving the aforesaid penitentiary sentence of ten years the defendant is to serve twelve months of the aforesaid sentence at confinement in the jail of this County.

Whereupon the defendant by counsel moved the Court to suspend the remainder of the aforesaid penitentiary sentence and place the defendant on probation after his release from confinement, and the Court not being advised took said motion under advisement.

And the prisoner, Harold Dean Rutherford, was remanded to the jail of this County.

After petitioner had served a few months of this twelve-month sentence, the judge of the Circuit Court of Carroll County had him brought into his chambers and reminded him of the banishment agreement and further advised him that he was suspending the remainder of the twelve-month sentence, but that the sheriff's deputies would take him to the bus station. On March 11, 1974, he was accompanied to the station and placed on a bus for North Carolina, and the court entered this order:

It appearing to the Court that the defendant was on a former day of this Court, to-wit: December 16, 1974 convicted of a felony, to-wit: Maiming, and sentenced to serve a sentence of twelve months in the jail of this County.

Therefore the Court doth order that the aforesaid jail sentence he is now serving be and the same is hereby suspended pending further investigation of this Court.

And the defendant, Harold Dean Rutherford, is hereby released from custody on his own recognizance.

Petitioner remained in North Carolina only a week this time and returned to Carroll County around March 25, 1975. He was not immediately brought before the court, for according to the testimony of the prosecutor and the defense attorney, at the evidentiary hearing, it was not unusual in Carroll County for a banishment to be ignored by the court, provided that the person banished did not cause any trouble. In any event, petitioner remained in Carroll County until about February 11, 1976. On that date, represented by court-appointed counsel, he appeared at a hearing, the transcript of which is labeled "Transcript of Revocation." However, a probation officer from Carroll County testified at the habeas corpus evidentiary hearing that he had no knowledge of petitioner being placed on probation. At the revocation hearing the state court heard evidence that petitioner had been drinking heavily, had been intoxicated on several occasions, and had once pulled a pistol on his wife to make her say grace at a meal. At the conclusion of the evidence, the court ordered petitioner to serve the remainder of the ten-year sentence which had been suspended, with the court entering the following order:

And it further appearing to the Court that on the 16th day of December, 1974 the Court having maturely considered said motion ordered that the defendant serve the penitentiary sentence of ten years, however, in lieu of serving the aforesaid penitentiary sentence of ten years the defendant was ordered to serve twelve months of the aforesaid sentence at confinement in the jail of this County. And the defendant by counsel moved the Court to suspend the remainder of the aforesaid penitentiary sentence and place the defendant on probation after his release from confinement, and the Court not being advised took said motion under advisement.

And it further appearing to the Court that on March 11, 1975 the defendant was released from serving the remainder of the aforesaid jail sentence of twelve months pending further investigation of this Court.

And it further appearing to the Court that on this day the Court having maturely considered said motion ordered that the defendant serve the unserved portion of the penitentiary sentence of ten years.

Petitioner was confined pursuant to this order, and it is the validity of this imprisonment that he is now challenging.

I The Validity of the Order of Banishment

Petitioner first contends that the Carroll County Circuit Court ordered him to leave the State of Virginia for a ten year period, and that such a sentence is null and void. On these grounds, petitioner would have this court grant him habeas corpus relief.

This court finds that petitioner was not sentenced to banishment, for the state court orders make no mention of this condition. Banishment was a condition voluntarily and knowingly agreed to by petitioner in the course of the plea bargain negotiations,¹ although for reasons outlined below, this court holds that the condition is unenforceable. There is a distinction between the defendant who is convicted and then sentenced by the court to be banished and the defendant who agrees to banishment voluntarily and knowingly as part of a plea bargain before conviction. Petitioner Rutherford falls into the latter category. However, the fact remains that petitioner pled guilty and agreed to be banished from the state in exchange for the court's suspension of the ten year sentence.

Banishment as a punishment has existed throughout the world...