State ex rel. Pingley v. Coiner

• Decision Date: 25 January 1972
• Docket Number: No. 13127,13127
• Citation: 186 S.E.2d 220,155 W.Va. 591
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Roger Ray PINGLEY v. Ira M. COINER, Warden of the West Virginia Penitentiary.

Page 220

186 S.E.2d 220

155 W.Va. 591

STATE ex rel. Roger Ray PINGLEY v. Ira M. COINER, Warden of the West Virginia Penitentiary.

No. 13127.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 16, 1971.

Decided Jan. 25, 1972.

Syllabus by the Court

1. Habeas corpus lies to secure relief from conditions of imprisonment which constitute cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States.

2. Neither the treatment to which the petitioner in a habeas corpus proceeding was subjected during his incarceration nor his confinement in the penitentiary of this State, undr the conditions shown by the evidence in this proceeding, constitutes cruel and unusual punishment within the meaning of Article III, Section 5, of the Constitution of West Virginia or of the Eighth Amendment to the Constitution of the United States.

3. 'When the finding of a trial court in a case tried by it in lieu of a jury is against the preponderance of the evidence, is not supported by the evidence, or is plainly wrong, such finding will be reversed and set aside by this Court upon appellate review.' Point 8, syllabus, Bluefield Supply Company v. Frankel's Appliances, Inc., 149 W.Va. 622 (142 S.E.2d 898).

4. When in the trial of a case by the court in lieu of a jury the court admits and considers incompetent evidence and there is not enough competent evidence to support the finding and the judgment of the court, the admission of such incompetent evidence by the court is reversible error.

5. If the petitioner in a post-conviction habeas corpus proceeding is not entitled to relief from a valid judgment sentencing him to imprisonment, the court should not reverse and set aside such judgment but instead should discharge the writ and remand the petitioner to the custody of the proper official to serve the sentence imposed by such valid judgment of imprisonment.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Willard A. Sullivan, Asst. Atty. Gen., Charleston, W. Va., for plaintiff in error.

Leo Catsonis, Charleston, W. Va., for defendant in error.

HAYMOND, Judge:

This is a statutory post-conviction habeas corpus proceeding instituted in the Circuit Court of Randolph County September 15, 1970, in which the petitioner, Roger Ray Pingley, seeks a writ to compel the defendant, Ira M. Coiner, Warden of the West Virginia Penitentiary, to release him from confinement in the penitentiary of this State on the ground that such confinement constituted cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and the provisions of the Eighth Amendment to the Constitution of the United States.

The petitioner was confined in the penitentiary under a judgment of the Circuit Court of Randolph County rendered August 19, 1970, which sentenced him to confinement in the penitentiary for a period of ten years, upon his plea of guilty to an indictment by the grand jury of Randolph County in January, 1970, charging him and George Guerrero with the offense of robbery by the use of a deadly weapon. The petitioner was originally erroneously sentenced to the Huttonsville Correctional Center at Huttonsville, West Virginia, but upon the refusal of the warden of that institution to accept the petitioner he was correctly sentenced to confinement in the penitentiary at Moundsville, as heretofore indicated, by the judgment of August 19, 1970.

On August 3, 1970, the petitioner advised the Judge of the Circuit Court of Randolph County that he desired to file a petition for post-conviction relief and requested the appointment of counsel to represent him in such proceeding and the court, having found the petitioner to be an indigent person, by order entered September 29, 1970, as of August 3, 1970, appointed attorneys J. Fred Queen and Leo Catsonis to represent the petitioner in this proceeding.

Upon the petition dated September 12 and filed September 15, 1970, the court on that day awarded a writ and caused the petitioner, after having been incarcerated in the penitentiary for a period of thirty-two days, to be transferred to the Randolph County jail. His request for bail was denied and the petitioner, by order of the court, is still confined in the Randolph County jail. The demurrer of the defendant to the petition was overruled, a pretrial conference was held February 17, 1971, at which it was determined that the issue to be tried was whether confinement of the petitioner in the West Virginia Penitentiary at Moundsville constituted cruel and unusual punishment, and after agreed continuances, the proceeding was heard by the court in lieu of a jury on April 22, 23 and 24, 1971.

The court found that confinement of the petitioner in the West Virginia penitentiary at Mondsville constituted cruel and unusual punishment within the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States, and by order entered May 19 1971 for May 4, 1971, set aside the judgment rendered August 19, 1970 sentencing the petitioner to confinement in the West Virginia Penitentiary but did not disturb the conviction of the petitioner of the offense of robbery, deferred the entry of any sentence of the petitioner until the further order of the court, remanded the petitioner to the Sheriff of Randolph County until the further order of the court, and made the lengthy opinion of the court a part of the record in this proceeding. By order entered June 16, 1971, for May 15, 1971, the court granted a stay of execution for a period of ninety days to enable the defendant to apply to this Court for a writ of error. To the judgment of May 19, 1971, for May 4, 1971, this Court granted this writ of error and supersedeas September 20, 1971, upon the application of the defendant.

On motion of the defendant to reverse the judgment of the circuit court the case was submitted for decision in this Court on November 16, 1971, upon the record, the brief amicus curiae of the National Council on Crime and Delinquency and the brief amicus curiae of The National Law Office of the National Legal Aid and Defender Association and the Penal Reform Institute, Inc., and the oral arguments and the briefs in behalf of the respective parties.

The defendant assigns and relies upon these alleged errors for reversal of the judgment of the circuit court:

1. The competent evidence does not support the finding that the confinement of the petitioner in the penitentiary constituted cruel and unusual punishment.

2. The action of the court upon the hearing of this proceeding showed bias and prejudice in favor of the petitioner and constituted reversible error.

3. The action of the trial court in permitting and considering improper hearsay evidence and immaterial and irrelevant evidence constituted reversible error.

4. The action of the trial court in setting aside the judgment sentencing the petitioner to confinement in the penitentiary of this State constituted reversible error.

The penitentiary of this State is located on Jefferson Avenue, in Moundsville, Marshall County, West Virginia, and its structures and the surrounding 24 foot high stone wall occupy and inclose an inside area of approximately ten acres of land. Its original section was constructed in 1866 and additions have been constructed from time to time. Its principal sections are the North Hall, the South Hall and the New Wall sections. The security of the penitentiary is maintained by approximately 177 guards or correctional officers under the supervision of the defendant as warden, who has the assistance of a deputy warden, a captain of the guards and several lieutenants.

The inmate population is 618 and includes hospital inmates and inmates who engage in work outside the walls. Of the 177 correctional officers one-third or 59 are off duty daily, but the remaining two-thirds or 118 are on duty each day. The ordinary starting salary of each guard is $435.00 per month in an industrial area in which many workers receive wages on a forty hour week basis of.$7.00 an hour and this situation results in substantial annual turnovers in the guard personnel. There is a training course for guards and about 50% Of them are grade school graduates and about 25% Are high school graduates and some of them are of middle age or older. Most of the guards are under twenty five or over forty five years of age and only a few are over the retirement age of sixty years.

Of the 618 inmates approximately two-thirds have less than $50.00 in their accounts and are classified by the deputy warden as indigents. They are periodically given free legal services by personnel of the College of Law of West Virginia University who visit the prison. The majority of the inmates are regarded by the deputy warden as hard-core criminals but he believes that they are not beyond help. The population has decreased from approximately 1800 inmates since the construction of a new section was begun in 1959. Each inmate is confined in an individual cell in the different sections, there is no overcrowding, and there are sufficient cells to provide single occupancy for approximately 1300 inmates.

A segregated area is located in the New Wall basement which is known as the hole, where inmates guilty of infractions of prison regulations are confined. There are ten cells in that area and the inmates are checked approximately every thirty minutes. There is no light in these cells and the only light is in the adjoining hallway. The only equipment in the cells in the hole is a commode at the regulation level above the floor. It is sealed by a block of concrete to prevent its destruction by an inmate. The commode is flushed periodically from outside the cell by the guards. According to the deputy...