Smoot v. McKenzie, 14294
| Decision Date | 05 May 1981 |
| Docket Number | No. 14294,14294 |
| Court | West Virginia Supreme Court |
| Parties | Billy Alfred SMOOT v. Arthur L. McKENZIE, Warden, West Virginia Penitentiary, etc. |
Syllabus by the Court
"Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment to the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' " Syllabus Point 8, State v. Vance, W.Va., 262 S.E.2d 423 (1980).
Weaver, Hayes & Moredock, W. C. Weaver and Charles M. Moredock, Charleston, for plaintiff in error.
Chauncey H. Browning, Jr., Atty. Gen., Charleston, S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.
By order entered November 29, 1977, the Circuit Court of Kanawha County denied Billy Alfred Smoot's petition for habeas corpus relief. Mr. Smoot had alleged that a forty-year sentence for armed robbery imposed upon him by the Circuit Court of Kanawha County was unconstitutionally disproportionate to the sentences imposed upon his co-defendants. In this appeal he contends that the circuit court erred in rejecting his assertion. We conclude that the record developed during the habeas corpus proceeding is inadequate for us to decide whether Mr. Smoot's sentence was disproportionate. We, therefore, reverse the decision of the circuit court and remand this case with directions that the factual points relevant to the question of proportionality be more fully developed.
The appellant, Mr. Smoot, was indicted with Gary Young, Max Moore and Robert Brooks for the armed robbery of a Kentucky Fried Chicken store located in Charleston. Gary Young, Max Moore, and Robert Brooks, pursuant to plea-bargaining agreements, pled guilty to lesser-included offenses under the indictment. The appellant refused to plead guilty and instead elected to stand trial.
At the appellant's trial a co-defendant, Gary Young, testified in behalf of the State. At the conclusion of the trial the jury found the appellant guilty and subsequently the trial court sentenced the appellant to forty years in the state penitentiary. Co-defendant Gary Young, who had turned State's evidence, was placed on probation, and two other co-defendants, Max Moore and Robert Brooks, who had pled guilty to unarmed robbery, were sentenced to from five to eighteen years in the state penitentiary.
It is impossible to say from the transcript of the appellant's trial what factors the trial court considered in sentencing the appellant. Moreover, the habeas corpus record was not adequately developed to show what possible factors might be relevant to the length of the sentence. The habeas corpus proceeding does suggest that the appellant, prior to the time of the finding of the indictment in this case, had been convicted of unarmed robbery growing out of an unrelated incident. Following that conviction he had been placed on probation. There was also some indication that co-defendants Max Moore and Robert Brooks had prior criminal records. Presentence investigation reports prepared on the co-defendants, and an earlier one prepared on the appellant, however, were not introduced at the habeas corpus hearing.
In State v. Houston, W.Va., 273 S.E.2d 375 (1980), we recognized that under our constitutional proportionality principle contained in Article III, Section 5, of the West Virginia Constitution, the term of an armed robbery sentence could be reviewed to determine if it was disproportionate: "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment to the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' " Syllabus Point 8, State v. Vance, W.Va., 262 S.E.2d 423 (1980).
Houston addressed factors that would bear on the appropriateness of the sentence by referring to W.Va.Code, 62-12-7 and quoting from People v. Adkins, 41 Ill.2d 297, 300-01, 242 N.E.2d 258, 260-61 (1968), part of which stated:
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