Smith v. Cox

• Decision Date: 08 December 1970
• Docket Number: No. 14487.,14487.
• Citation: 435 F.2d 453
• Parties: Lawrence Furman SMITH, Appellant, v. James D. COX, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

435 F.2d 453 (1970)

Lawrence Furman SMITH, Appellant, v. James D. COX, Superintendent of the Virginia State Penitentiary, Appellee.

No. 14487.

United States Court of Appeals, Fourth Circuit.

Argued October 7, 1970.

Decided December 8, 1970.

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Parker E. Cherry, Richmond, Va. (Court-assigned counsel) Purcell, Cherry & Kerns, Richmond, Va., on the brief, for appellant.

Vann H. Lefcoe, Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen. of Virginia, on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

This is an appeal from the denial of a writ of habeas corpus by a state prisoner incarcerated for an aggregate term of twenty-eight years for conviction of robbery and larceny upon his pleas of guilty. After available state remedies had been denied, the writ was sought from the district judge, who found no merit in the contentions that the petitioner had been placed in double jeopardy by reason of conviction of both offenses, that petitioner's pleas of guilty were accepted without proper warning to him of their effect or proper inquiry as to whether he understood his constitutional rights, that he had been denied effective assistance of counsel, and that he was improperly denied the opportunity to prove that the state trial judge who sentenced him was senile and incapable of making an informed, fair judicial determination of the punishment that he should suffer. We agree with the district judge that petitioner's contentions with respect to double jeopardy, his plea and the quality of his representation are without merit, but we think that petitioner has been denied the opportunity to inquire into the fitness of the state trial judge to sentence him. We, therefore, vacate the judgment and remand the case to the district judge for further proceedings.

-I-

Petitioner's convictions arose out of these facts: On the evening of August 2, 1964, petitioner and an accomplice entered the J. R. Mills General Merchandise store, in Hanover County, Virginia, which was then in charge of an employee named Sam Edward Melton. The store was closed, but they gained entrance by saying that they wanted to purchase cigarettes. When Melton let them in, petitioner and his companion struck Melton and took $51.00 of his own money from his person. They also ransacked the store and took a safe containing several hundred dollars belonging to the owner, Mills.

Petitioner was apprehended and two indictments were returned against him. One charged burglary with the taking of money and chattels belonging to J. R. Mills. The other charged robbery of Melton with theft of $51.00 of his money taken from his person. When the proof showed that Melton gave access to the store the burglary indictment was amended to allege larceny.

Petitioner was represented by counsel, and he pleaded guilty to each indictment. He was sentenced to eighteen years for robbery and ten years for larceny. His accomplice was subsequently sentenced by the same judge to a total of twelve years for the same offense. Petitioner, in proper person, filed a notice of appeal, but counsel who had represented him at the trial had withdrawn. The court then appointed new counsel to represent petitioner on his appeal, but this attorney did nothing to perfect the appeal and permitted the time to perfect it to lapse. Later, another attorney was appointed to represent petitioner, and was permitted to file a belated appeal. The Supreme Court of Appeals of Virginia denied the appeal. Petitioner then sought and was denied state habeas corpus relief.

-II-

First, we turn to petitioner's claim to have suffered double jeopardy. He argues that the offense of larceny of which he was convicted was a part of and included in the offense of robbery for which he was also convicted, so that separate consecutive sentences for both crimes violated his right not to be placed in jeopardy twice. We disagree.

The double jeopardy clause does not prevent conviction and sentence at one trial for multiple offenses arising out of one transaction of criminal conduct, where each offense rests on different necessary elements. The clause can be violated by a single trial conviction only if all the elements necessary for conviction under one statutory provision are also necessary elements under the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); McGann v. United States, 261 F.2d 956 (4 Cir. 1958), cert. den., 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 (1959). See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). Even in that case, the accused does not suffer double jeopardy unless he is convicted and sentenced under both statutes for the same acts; two separate criminal acts could constitutionally be punished twice under the same or identical statutes. Blockburger v. United States, supra.

In this case, separate elements were necessary for conviction under each of the two statutes applied. Robbery, under Virginia law, is a common law crime. While Code of Va. § 18.1-91 fixes the punishment for robbery, it does not define it. Mason v. Commonwealth, 200 Va. 253, 105 S.E.2d 149 (1958). The common law, in effect in Virginia, defines robbery as "the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation." Pierce v. Commonwealth, 205 Va. 528, 138 S.E.2d 28, 31 (1964). See also, Mason v. Commonwealth, 200 Va. 253, 105 S.E.2d 149 (1958); Smyth v. White, 195 Va. 169, 77 S.E.2d 454 (1953). Larceny, in Virginia, is also a common law crime, although it is regulated by statute. It is the taking of goods or chattels of another. Cf. Satterfield v. Commonwealth, 105 Va. 867, 52 S.E. 979 (1906). The taking of $5.00 or more from the person of another, or $50.00 or more not from the person of another, is grand larceny. Code of Va. § 18.1-100. All other larceny is simple larceny. Code of Va. § 18.1-101. The indictment and sentence in the case at bar indicate that petitioner was convicted of grand larceny.

It is readily apparent that the elements of the crime of robbery and grand larceny are different. Robbery involves violence or intimidation, while larceny does not. Larceny requires proof of amount, at least for purposes of maximum punishment, while robbery does not. The fact that the amount which must be proved is small and is in practice relevant only to the maximum sentence which can be imposed does not prevent its being a separate element of the crime. Gore v. United States, supra, indicates that separate elements suffice to save convictions at a single trial from invalidity even where the differences between the crimes charged are minor, and do not involve significant differences in the state interests involved. Here, the differences are more substantial.

Even if larceny were a lesser included offense in robbery, petitioner's convictions here would be sustainable on the grounds that two separate criminal acts were committed: the larceny of Mills' money and property and the robbery of Melton. Since each of these was a separate act on petitioner's part, and each independently offended a criminal provision, petitioner could have been convicted and sentenced for both of them at one trial even under a single statute. This is true despite the fact that the acts were committed proximately in time. See Blockburger v. United States, supra.

And even if petitioner's acts could have been treated as constituting the commission of a single crime on the theory that Melton was custodian of Mills' safe, its contents and other merchandise, petitioner may not now claim that he was placed in jeopardy twice. Having pleaded guilty to the indictments, petitioner may not now go beyond the facts alleged therein and admitted by him and complain about how he may have been charged, or the theories under which he may have been convicted had he elected to stand trial on pleas of not guilty. We hold, therefore, that petitioner was not placed in double jeopardy, because he was charged and admitted to guilt of two separate offenses.

-III-

The taking of petitioner's pleas of guilty unquestionably did not comply with the formal requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which requires the making of a formal record to demonstrate that the accused intelligently and knowingly pleaded guilty. Ordinarily it would seem that the record should be made by interrogation of the accused by the trial judge, by counsel, or by both. Boykin, however, has been held not to be retroactive, United States ex rel. Hughes v. Rundle, 419 F.2d 116 (3 Cir. 1969), and we agree. Boykin's holding is analogous to Rule 11, F.R.Crim.Pro., as interpreted in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). McCarthy was held not to be retroactive in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), on the grounds that convictions based on pleas not voluntary or knowing could be reversed without reliance on the rule of McCarthy, and that retroactivity would be highly disruptive of the administration of justice, since large numbers of guilty pleas had been obtained without compliance with the McCarthy requirements. These considerations are equally applicable here. The purpose of Boykin was merely to forestall "the spin-off of collateral proceedings that seek to probe murky memories," 395 U.S. at 244, 89 S.Ct. at 1713. Even before Boykin, it was constitutionally required that guilty pleas be entered with a knowledge of their consequences, see Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 120, 76 S.Ct. 223, 100 L.Ed. 126 (1956), and in this circuit the burden of proof of knowledge and understanding was on the state. Bailey v. MacDougall, 392 F.2d 155, 159 (4 Cir.), cert. den., 393 U.S. 847, 89 S.Ct. 133, 21 L.Ed.2d 118 (1968)....