State ex rel. Rasnake v. Narick

• Decision Date: 06 April 1976
• Docket Number: 13670,Nos. 13669,s. 13669
• Citation: 227 S.E.2d 203,159 W.Va. 542
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. William Clifford RASNAKE v. Steven D. NARICK, Judge, etc. STATE ex rel. Rickey Lee SCHNELLE v. Steven D. NARICK, Judge, etc.

Page 203

227 S.E.2d 203

159 W.Va. 542

STATE ex rel. William Clifford RASNAKE v. Steven D. NARICK, Judge, etc.

STATE ex rel. Rickey Lee SCHNELLE v. Steven D. NARICK, Judge, etc.

Nos. 13669, 13670.

Supreme Court of Appeals of West Virginia.

April 6, 1976.

Syllabus by the Court

1. A criminal statute which, in the instance of a guilty plea, gives a trial judge the same authority to determine sentence as that granted a jury upon a finding of guilt does not unconstitutionally encourage an accused to plead guilty or to relinquish a jury trial in violation of the Fifth and Sixth Amendments to the Constitution of the United States.

2. A unitary trial procedure in which the jury determines both the issues of guilt and the possible sentence upon a finding of guilt does not deprive the accused of his right to an impartial jury under the provisions of the Sixth Amendment to the United States Constitution.

3. A criminal statute which permits the jury, in its discretion and without specific standards, to choose between either a penalty of life imprisonment or, by recommending mercy, a term of years, does not violate the Fifth, Eighth of Fourteenth Amendments to the United States Constitution.

4. West Virginia's rape statute, West Virginia Code, 61--2--15, As amended, (1) does not encourage an accused to plead guilty in violation of the Fifth Amendment to the United States Constitution nor does it invite the defendant to relinquish his constitutional right to a trial by jury in violation of the Sixth Amendment to the United States Constitution; (2) does not deprive an accused of the right to an impartial jury under the provisions of the Sixth Amendment to the United States Constitution by providing for a unitary trial to determine both the issues of guilt and the possible sentence upon a finding of guilt; (3) does not violate the provisions of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution by granting to the judge or a jury the authority to impose a life sentence, or discretionarily, a sentence of from ten to twenty years impriosnment, without standards to guide the discretion of the court or jury.

Galbraith, Seibert & Kasserman, Ronald W. Kasserman, Wheeling, for rasnake.

Bailey, Byrum & Vieweg, George B. Vieweg, III, Wheeling, for Schnelle.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for respondent.

BERRY, Chief Justice:

These two original proceedings in prohibition involve multiple challenges to the constitutionality of West Virginia's rape statute, W.Va.Code, 61--2--15, As amended. Because the cases involve substantially identical matters, this Court, on joint motion of the parties, consolidated the cases for briefing and argument and they will be decided together.

William Clifford Rasnake was indicted by a grand jury of Marshall County, West Virginia, on July 8, 1975, on a charge of forcible rape. Rickey Lee Schnelle was also indicted for forcible rape by a grand jury of Marshall County, West Virginia on November 12, 1975. Both criminal prosecutions are still in preliminary stages, neither petitioner having entered a plea to the charges against him.

The important language in the statute under attack, W.Va.Code, 61--2--15, As amended, provides:

'If any male person carnally knows a female person, not his wife, against her will by force . . . he shall be guilty of a felony, and, upon conviction, shall be punished with confinement in the penitentiary for life, and he, notwithstanding the provisions of article twelve ( § 62--12--1 et seq.), chapter sixty-two of this Code, shall not be eligible for parole: Provided, that the jury may, in their discretion, recommend mercy, and if such recommendation is added to their verdict, such person shall be punished with confinement in the penitentiary for not less than ten nor more than twenty years: Provided, however, that if the accused pleads guilty, the court may, in its discretion, provide that such person shall be punished with confinement in the penitentiary for not less than ten nor more than twenty years.' (Emphasis supplied).

The repetitious multiple challenges made to the statute can be consolidated into three basic issues: (1) whether W.Va.Code, 61--2--15, As amended, is invalid in that it encourages an accused to plead guilty in violation of the Fifth Amendment to the United States Constitution, and concomitantly that it invites the defendant to relinquish his constitutional right to a trial by jury as guaranteed by the Sixth Amendment to the Constitution of the United States; (2) whether the statute is invalid in that it provides for a unitary trial to determine the issue of guilt as well as the possible sentence upon a finding of guilt, thus depriving the accused of his right to an impartial jury under the provisions of the Sixth Amendment to the United States Constitution; and (3) whether the statute is invalid in that it grants to the judge or jury the authority to impose a life sentence, or discretionarily, a sentence of from ten to twenty years imprisonment, without sufficient standards to guide in the discretionary exercise in violation of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution and in violation of the prohibition against cruel and unusual punishment of the Eighth Amendment to the United States Constitution.

I

With regard to the first issue, the petitioners contend that the statute in question encourages from to plead guilty in order to avoid a potentially more harsh sentence which may result from a jury trial. The petitioners rely heavily on the case of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), in support of their argument.

In Jackson, the United States Supreme Court invalidated a provision of the Federal Kidnapping Act which made the offense punishable by death if recommended by the jury, but provided no procedure for the imposition of the death penalty by the court where the accused waived the right to a jury trial and pleaded guilty. The Court ruled that the statute imposed an impermissible burden upon the defendant's exercise of his Fifth Amendment right to not plead guilty and his Sixth Amendment right to a jury trial.

The same result was reached in Spillers v. State, 84 Nev. 23, 436 P.2d 18 (1968), in which the Supreme Court of Nevada found that a statute similar to the Federal Kidnapping Act was unconstitutional. In that case, the Nevada statute allowed a jury to impose the death penalty if a defendant were found guilty of rape by violence but limited the trial court's power to punish to a term of imprisonment of not less than twenty years.

Obviously, if the law under scrutiny here possessed the same characteristics as the statutes struck down in Jackson and Spillers, its constitutionality would be in serious doubt. However, the West Virginia statute is entirely different from the federal kidnapping statute and the Nevada rape statute in that it vests the same discretion in the trial court as it does in the jury. If the defendant pleads not guilty and the jury finds him guilty and goes no further, a life sentence will be imposed. If it recommends mercy, the sentence of ten to twenty years will be imposed. On the other hand, if the defendant pleads guilty, the judge may either impose a life sentence or, in his discretion, show mercy and impose a sentence of ten to twenty years. With virtually identical alternatives, the statute encourages neither a guilty plea nor the relinquishment of a jury trial.

Both state and federal courts have found no constitutional flaw in statutes vesting identical discretion in both the court and the jury. For example, it was held in People v. Bradley, 130 Ill.App.2d 1061, 264 N.E.2d 862 (1970) that a defendant was not coerced into surrendering his right to a trial by jury and was not encouraged to plead guilty to a charge of voluntary manslaughter because the death penalty might be invoked on the murder charge on the jury's recommendation, since the judge sitting without a jury in a murder case could also impose the death sentence.

In Commonwealth v. Hargrove, 434 Pa. 393, 254 A.2d 22 (1969), the Supreme Court of Pennsylvania held that a plea of guilty to a murder charge was not unconstitutionally encouraged, notwithstanding the defendant's claim that he had been induced to plead guilty because of his belief that if he were to stand trial there was a greater likelihood that he would receive the death sentence. This decision was based on the fact that under the Pennsylvania statute the defendant faced the same possibility of a death sentence whether he pleaded guilty or not guilty since both the judge and the jury had the authority to impose the death sentence. In discussing the Jackson case, the Pennsylvania Court stated:

'It is a clear cut choice between avoiding and risking the death penalty which the Supreme Court found to be such an overbearing one in Jackson. Here no such decision was placed before the defendant. At worst the defendant had to make a choice between probabilities, neither of which carried any Guarantee that the death penalty would not ultimately be imposed. . . . (W)e do not believe that the Pennsylvania procedure suffers from the same constitutional infirmities as that struck down in Jackson.' (Emphasis in original).

Similarly, Sims v. Eyman, 405 F.2d 439 (9th Cir. 1969), the court held:

'Under Arizona law either the judge of the jury can impose the death penalty so that a defendant must risk death regardless of whether he pleads guilty or chooses a jury trial. The 'burden' petitioner complains of is simply that slightly different evidence may be introduced before a judge, on a guilty plea, than before a jury. This does not constitute the type of burden on the assertion of constitutional rights which Jackson would forbid.'

The petitioners suggest that, as a...