Sims v. Cunningham

• Decision Date: 05 March 1962
• Docket Number: No. 5385,5385
• Citation: 203 Va. 347,124 S.E.2d 221
• Parties: WILLIAM R. SIMS v. W. K. CUNNINGHAM, JR., SUPERINTENDENT, ETC. Record
• Court: Virginia Supreme Court

Page 221

124 S.E.2d 221

203 Va. 347

WILLIAM R. SIMS v. W. K. CUNNINGHAM, JR., SUPERINTENDENT, ETC.

Record No. 5385.

Supreme Court of Appeals of Virginia

March 5, 1962.

Lewis T. Booker, for the plaintiff in error.

Reno S. Harp, III, Assistant Attorney General (Frederick T. Gray, Attorney General, on brief), for the defendant in error.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Sims filed a petition for a writ of habeas corpus in the Hustings Court of the City of Richmond, Part II, in October, 1960. The case was transferred from that court to the Circuit Court of the City of Richmond, which court, by order dated January 24, 1961, assumed jurisdiction and issued a writ requiring the production of the petitioner before the court. Respondent Cunningham filed a return to the writ and the matter came on for hearing on February 20, 1961.

After hearing testimony ore tenus and argument of counsel the court took the matter under advisement and on April 7, 1961, entered an order (accompanied by a written opinion) dismissing the writ and remanding petitioner to respondent's custody.

Sims complains that the trial court erred, to his prejudice, by failing to discharge him from confinement, upon the ground that § 53-296 of the Code of Virginia, 1950, as applied to him, denies him his rights under the Fourteenth Amendment to the Constitution of the United States.

The Code section under which Sims is confined provides:

' § 53-296. CONVICTS PREVIOUSLY SENTENCED TO LIKE PUNISHMENT; ADDITIONAL CONFINEMENT. -- When a person convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if it shall come to the knowledge of the Director of the Department of Welfare and Institutions that he has been sentenced to a like punishment in the United States prior to the sentence he is then serving, the Director of the Department of Welfare and Institutions shall give information thereof without delay to the Circuit Court of the City of Richmond. Such court shall cause the convict to be brought before it, to be tried upon an information filed, alleging the existence of records of prior convictions and the identity of the prisoner with the person named in each. The prisoner may deny the existence of any such records, or that he is the same person named therein, or both. Either party may, for good cause shown, have a continuance of the case for such reasonable time as may be fixed by the court. The existence of such records, if denied by the prisoner, shall be first determined by the court, and if it be found by the court that such records exist, and the prisoner says that he is not the same person mentioned in such records, or remains silent, his plea, or the fact of his silence, shall be entered of record, and a jury of bystanders shall be impaneled to inquire whether the convict is the same person mentioned in the several records. If they find that he is not the same person, he shall be remanded to the penitentiary; but if they find that he is the same person, or if he acknowledge in open court after being duly cautioned, that he is the same person, the court may sentence him to further confinement in the penitentiary for a period of not exceeding five years, if he has been once before sentenced in the United States to confinement in the penitentiary; but if he has been twice sentenced in the United States to such confinement, he may be sentenced to be confined in the penitentiary for such additional time as the court trying the case may deem proper. This section, however, shall not apply to successive convictions of petit larceny.'

Part of the facts in the case at bar were stipulated by counsel as follows:

'1. Petitioner was convicted of grand larceny on January 31, 1947, by the Hustings Court of the City of Richmond and was sentenced to two years' confinement. He was discharged from confinement on June 9, 1948.

'2. Petitioner was convicted of grand larceny on April 6, 1949, in the Hustings Court of the City of Richmond. He was sentenced to three years' imprisonment. He was discharged from confinement on November 27, 1951.

'3. Petitioner was convicted of grand larceny on October 22, 1957, in the Hustings Court of the City of Richmond. He was sentenced to two years' imprisonment. His term should have expired, allowing for good behavior, on February 22, 1959.

'4. On December 11, 1957, T. Gray Haddon, Commonwealth's Attorney for the City of Richmond, lodged an Information against petitioner in this court alleging that petitioner had been convicted of three offenses against the laws of the Commonwealth of Virginia.

'5. On March 12, 1958, petitioner was sentenced on account of the aforesaid Information to confinement in the Virginia State Penitentiary for an additional period of ten years, one year of which was suspended upon imposition of sentence. Such sentence was imposed pursuant to § 53-296 of the Code of Virginia, 1950.

'6. At all times before such Information is filed in similar cases with this court the prior confinements of the individual in question called to the court's attenton in the Information have been confinements in the Virginia State Penitentiary.

'7. It is the policy of the Department of Welfare and Institutions not to inform against individuals under the provisions of § 53-296 of the Code of Virginia, 1950, who have previously been sentenced to imprisonment in penitentiaries of other States or of the United States three or more times even though individuals previously confined to the Virginia penitentiary three or more times are invariably informed against under the provisions of § 53-296.'

The following statement of facts was also agreed to by counsel:

'Counsel for petitioner and counsel for respondent agree that the following is a correct statement of facts adduced in evidence at the trial of this matter on February 20, 1961:

'* * * (Testimony) of the witness Curtis R. Mann was that he has served as Director of the Bureau of Records and Criminal Identification for twenty-three years; that his duties include receiving each prisoner and keeping and computing the 'time' each serves and that he forwards each prisoner's fingerprints to the Federal Bureau of Investigation of the Department of Justice and receives in return a report showing other convictions 'where the man was fingerprinted.' If the particular prisoner was not fingerprinted and copies of the prints forwarded by the arresting or receiving authority to the FBI, then the record transmitted by that unit would not show such other conviction.

'Mr. Mann prepares a list of 'Virginia convictions' and forwards this list to the office of the Superintendent from which it is sent on to * * * the Commonwealth's Attorney for the City of Richmond. The witness further stated that the FBI record indicates only that the individual had been convicted and received at a particular penal institution, adding that no certified and authenticated copies of the court orders in out-of-state cases are furnished with the FBI report.

'The Commonwealth's Attorney, T. Gray Haddon, testified that he had served in that capacity for twenty-eight years and that he receives the list of recidivists from the Clerk's Office of the Circuit Court of the City of Richmond and files the Informations prepared therefrom in this court. To the best of his recollection the witness had never 'had a prisoner on a foreign' (non-Virginia) conviction. On cross examination he testified that he had 'nol prossed' some Informations where he felt there was insufficient evidence, etc.

'The last witness, the respondent [Cunningham], testified that he had begun his employment with the Department of Welfare and Institutions in 1939 and had been Superintendent of the Penitentiary since August 1, 1960. Mr. Cunningham stated that it was the policy of the Department to furnish information of and to request that Informations be filed only against those prisoners who had previously served time under a conviction and sentence to the Virginia State Penitentiary. He added that he did not know the reason for the policy which was followed, but that it had never been questioned.'

Petitioner initially attacked the constitutionality of Code. § 53-296. He has now abandoned that attack. We have sustained the constitutionality of the statute on several occasions. King v. Lynn (1893), 90 Va. 345, 18 S.E. 439; Surratt v. Commonwealth (1948), 187 Va. 940, 48 S.E.2d 362. The Supreme Court of the United States has also upheld the validity of similar statutes. Moore v. Missouri (1895), 159 U.S. 673, 16 S.Ct. 179, 40 L.ed. 301; McDonald v. Massachusetts (1901), 180 U.S. 311, 21 S.Ct. 389, 45 L.ed. 542; Graham v. West Virginia (1912), 224 U.S. 616, 32 S.Ct. 583, 56 L.ed. 917.

Petitioner now says that the statute as applied to him denies him the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States ¹

Prior to 1848 the Virginia recidivist statute applied only to persons with previous confinement in the Virginia penitentiary. In 1848 the statute was changed to include the imposition of additional imprisonment on prisoners with previous confinement anywhere in the United States. Acts of Assembly 1847-1848, page 123, Section 13. (Cf. Code of Virginia 1819, §§ 14-16, pp. 619-20 with Code of Virginia, 1849, Chapter 199, §§ 25-27.) Therefore Sims argues that the General Assembly over one hundred years ago decided to stop doing what the Department of Welfare and Institutions is now doing by administrative fiat. He says that the discrimination in favor of prisoners with out-of-state convictions is the deliberate and intentional policy of the Department of Welfare and Institutions. In other words he says that 'all around him are fellow prisoners [with out-of-state convictions] in the same category established by the Act who have not had a day added to their terms', and that this is no mere mistake,...