State ex rel. Facemyer v. Boles

• Decision Date: 30 June 1964
• Docket Number: No. 12337,12337
• Citation: 148 W.Va. 702,137 S.E.2d 237
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Norman FACEMYER v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 237

137 S.E.2d 237

148 W.Va. 702

STATE ex rel. Norman FACEMYER v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12337.

Supreme Court of Appeals of West Virginia.

Submitted June 2, 1964.

Decided June 30, 1964.

Syllabus by the Court

1. Where a sentence imposed upon a person convicted of a crime does not comply with the penalty provided for in the statute relating to the crime in question, and the maximum limit of such sentence imposed is more than the minimum provided for in the statute, such sentence is void.

2. Where a sentence under which a person is confined to the penitentiary is void, a writ of habeas corpus will be granted to afford his release from such confinement.

John T. Poffenbarger, Charleston, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

BERRY, Judge.

This petition for a writ of habeas corpus ad subjiciendum was instituted under the original jurisdiction of this Court by Norman Facemyer, an inmate of the West Virginia State Penitentiary, for his release therefrom, because he alleges he is confined therein under a void sentence. A writ was issued by this Court on May 25, 1964, returnable June 2, 1964, and John T. Poffenbarger was appointed by the Court as attorney for the petitioner.

On the return day of the writ the petitioner appeared before this Court in the custody of the defendant, Otto C. Boles, Warden of the West Virginia State Penitentiary. When the case was called on the argument docket the attorney for the defendant announced that the state did not wish to contest the matter and no answer or brief was filed on behalf of the defendant. The case was then submitted to the Court for decision on the brief of the petitioner.

At the April, 1961 Term of the Kanawha County Grand Jury the petitioner was indicted for the crime of robbery by striking and beating. On April 28, 1961, he pleaded guilty to said indictment when arraigned in the Intermediate Court of Kanawha County, and on July 14, 1961, was sentenced to a term of one to two years in the custody of the Commissioner of Public Institutions and assigned to a forestry camp from which he escaped. On September 15, 1961, he was sentenced by the Intermediate Court of Kanawha County to confinement in the West Virginia State Penitentiary for not less than five nor more than eighteen years.

It is the contention of the petitioner that he was sentenced for the crime commonly known as unarmed robbery as provided for in the second sentence of Code, 61-2-12, as amended by Chapter 25, Acts of the Legislature, Regular Session, 1961, which was passed by the Legislature on March 10, 1961, effective ninety days from passage. This amendment changed the penalty for the crime commonly known as unarmed robbery under the second sentence of Code, 61-2-12, as amended, from confinement in the penitentiary of not less than five years, the penalty in effect at the time of the commission of the crime by Facemyer, to confinement in the penitentiary for not less than five nor more than eighteen years. Therefore, he urges, the sentence under which he is confind in the penitentiary is void, because it did not conform to the sentence provided for by the statute at the time the crime was committed.

This position, if applicable to this case, is well taken, because it has been consistently held that where a definite sentence is provided for at the time of the commission of a crime, and the statute is later amended by the legislature providing for an indeterminate sentence which is imposed upon a person convicted of such crime, wherein the maximum limit of the indeterminate sentence is more than the minimum provided for in the statute at the time the crime was committed, such sentence is void. Ruben v. Welch, 4 Cir., 159 F.2d 493; State v. Fisher, 126 W.Va. 117, 27 S.E.2d 581; State ex rel. Truslow v. Boles, W.Va., 137 S.E.2d 235; Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182.

It appears, however, from the record in this case, that the petitioner was indicted for the commission of an offense which is contained in the first sentence of Code, 61-2-12, as amended; that he pleaded guilty to the charge contained in the indictment, and the penalty for such an offense at the time of the commission of the crime in question in this case was the confinement in the penitentiary for a period of not less than ten years; that when the statute was amended by Chapter 25, Acts of the Legislature, Regular Session, 1961, passed on March 10, 1961, it did not change the penalty for such crime, and the sentence imposed upon the petitioner should have conformed to the provisions of the statute in effect at the time of the commission of the crime and at the time he was sentenced. The statute in question, Code, 61-2-12, as amended, in effect at the time of the commission of the crime, reads as follows: 'If any person commit, or attempt to commit, robbery by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever, he shall be guilty of a felony, and, upon conviction, shall be...