State v. Buck

• Decision Date: 29 March 1984
• Docket Number: No. 15938,15938
• Citation: 314 S.E.2d 406,173 W.Va. 243
• Parties: STATE of West Virginia v. Fred Michael BUCK.
• Court: West Virginia Supreme Court

Page 406

314 S.E.2d 406

173 W.Va. 243

STATE of West Virginia v. Fred Michael BUCK.

No. 15938.

Supreme Court of Appeals of West Virginia.

March 29, 1984.

Syllabus by the Court

1. "Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense." Syllabus Point 5, State v. Cooper, W.Va., 304 S.E.2d 851 (1983).

2. Disparate sentences for codefendants are not per se unconstitutional. Courts consider many factors such as each codefendant's respective involvement in the criminal transaction (including who was the prime mover), prior records, rehabilitative potential (including post-arrest conduct, age and maturity), and lack of remorse. If codefendants are similarly situated, some courts will reverse on disparity of sentence alone.

Silas B. Taylor, Asst. Atty. Gen., Charleston, for appellee.

Hugh Rogers, Jr., Kerens, for appellant.

MILLER, Justice:

This appeal marks the second time that we have been asked to review the sentence imposed in this case. In State v. Buck, W.Va., 294 S.E.2d 281, 286 (1982), we remanded "for reconsideration of the sentence and for the development of an appropriate sentencing record" under State v. Houston, W.Va., 273 S.E.2d 375 (1980), and Smoot v. McKenzie, W.Va., 277 S.E.2d 624 (1981). On remand, despite our intimations that the sentence should be reduced, the trial court reaffirmed its original sentence of seventy-five years. The appellant, Fred Michael Buck, argues that this sentence was unconstitutionally disproportionate to his offense and was grossly disparate to the one year sentence given to his codefendant. He asks us to set the appropriate sentence, rather than once more remanding to the trial court for that purpose.

This case began with the robbery of a store in Job, West Virginia. On October 9, 1978, two men entered a store owned by Fred Kerns and asked him to get them some soft drinks. When Mr. Kerns went to get the drinks from his storeroom, he was struck from behind and robbed of $1,210.12. Mr. Buck and his codefendant, James Richards, were subsequently apprehended and charged with this offense.

Mr. Buck was convicted of aggravated robbery on February 28, 1979. One month later, Mr. Richards pleaded guilty to a reduced charge of grand larceny, and was sentenced to one year in jail. Mr. Buck was sentenced on May 15, 1979, to seventy-five years in the penitentiary.

On his first appeal, he argued, as he does now, that his sentence was disproportionate to his offense and disparate to the one year sentence given to his codefendant. We remanded so that the trial court would have an opportunity to exercise its sentencing discretion in a manner consistent with the principles articulated in State v. Houston, W.Va., 273 S.E.2d 375 (1980), and Smoot v. McKenzie, W.Va., 277 S.E.2d 624 (1981). Since both of these decisions were handed down after Mr. Buck was sentenced, the trial court did not have the benefit of their guidance.

Our review of the record indicates that the appellant was only twenty-three when he received his seventy-five year sentence. The record also reveals that this was his first conviction as an adult, and his first prosecution for a crime of violence. At the first sentencing hearing, Mr. Buck expressed his remorse for what had happened, and stated that he would like to make restitution for his crime. These are all factors which weigh in favor of a shorter sentence than the one he received. See generally Houston, W.Va., 273 S.E.2d at 378. ¹

In determining whether this sentence is disproportionate to the underlying offense, we must also consider the sentence that can be imposed in this State upon conviction of related offenses. Wanstreet v. Bordenkircher, W.Va., 276 S.E.2d 205, 210 (1981); Martin v. Leverette, W.Va., 244 S.E.2d 39, 43 (1978). It is significant that the sentence Mr. Buck received for aggravated robbery is much higher than he could have received for several more severe offenses. Indeed, if he had actually killed his victim, he might have received a lesser confinement. The seventy-five year sentence is essentially the same as a life sentence, except for one important difference in parole eligibility. Under a life sentence for first degree murder, Mr. Buck would have been eligible for parole in ten years unless the jury had declined to recommend mercy. Under his present sentence, however, he will not be eligible for parole for twenty-five years. ²

Moreover, the maximum sentences for second degree murder and voluntary manslaughter are less than one-third as long as the sentence he received. See W.Va.Code, 61-2-3 (1977) (second degree murder--eighteen years); W.Va.Code, 61-2-4 (1977) (manslaughter--five years).

Courts should also consider the punishment that would be available in other states for the same offense. Wanstreet, W.Va., 276 S.E.2d at 211. In this regard, Mr. Buck's sentence is substantially longer than the maximum permissible sentence for aggravated robbery in a majority of jurisdictions. ³ Among our neighboring states, four out of five have set maximum sentences that are far below seventy-five years. See Ky.Rev.Stat.Ann. §§ 515.020, 532.060(2)(b) (ten to twenty years); Md.Ann.Code Art. 27, § 488 (1982) (twenty years); Ohio Rev. Code Ann. §§ 2911.01, 2929.11 (1982) (twenty-five years); 18 Pa.Cons.Stat.Ann. §§ 1103(1), 3701 (Purdon 1983) (twenty years). ⁴

We recently discussed disproportionality of an aggravated robbery sentence in State v. Cooper, W.Va., 304 S.E.2d 851 (1983). There we unanimously concluded as a matter of law that a forty-five year sentence for a nineteen- year-old was disproportionate and stated in Syllabus Point 5:

"Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense."

The fact that the codefendant in this case received a much lighter sentence than Mr. Buck, i.e., one year in the county jail, is also relevant to our inquiry. ⁵ This raises the question of disparity of sentences which we discussed in Smoot, W.Va., 277 S.E.2d at 625-26, and further elaborated on in Cooper, W.Va., 304 S.E.2d at 856, where the codefendant who plea bargained received one year in the county jail, the same sentence obtained by the codefendant in this case:

"Disparate sentences for co-defendants are not per se unconstitutional. Courts consider many factors such as co-defendants' respective involvement in the criminal transaction (including who was the prime mover), prior records, rehabilitative potential (including post-arrest conduct, age and maturity), and lack of remorse. If defendants are similarly situated, some courts will reverse on disparity of sentence alone." (Citations and footnotes omitted)

In comparing the defendant's prior record with that of his codefendant's, we find that both had been in trouble with the law as juveniles. According to Mr. Buck's presentencing report, he was charged with tampering with a motor vehicle in Clarksburg, West Virginia, in 1970, and was placed on probation in Kanawha County in 1975 for possession of marijuana. He also committed a breaking and entering and was sent to the Industrial School for Boys at Pruntytown, where he escaped twice and was then sent to the Anthony Correctional Center.

No presentencing report was prepared for Mr. Richards, but the record developed at the second sentencing hearing indicates that he had also been placed on probation for possession of marijuana. In addition, Mr. Richards had been involved in an auto theft.

As an adult, Mr. Buck had been arrested, but not convicted, for writing a worthless check (a misdemeanor), grand larceny, and possession of a controlled substance with intent to deliver. These latter two charges were allegedly committed shortly before the offense involved in the present case. Mr. Richards had also been arrested without conviction--once for petit larceny (dismissed because the complainant failed to appear), and once for auto theft (dismissed because the time period elapsed).

The trial court justified its decision to reaffirm the seventy-five year sentence upon several grounds: first, the defendant's juvenile record; second, the fact that the defendant had planned and instigated the robbery and struck the victim several times with a tire iron, from which the court concluded that he had intended to kill the victim, and third, the fact that he had received a negative presentence diagnostic evaluation from the Huttonsville Correctional Center. The court explained that the disparity between the defendant's sentence and that of his codefendant was based upon its belief that Mr. Buck had threatened to kill his codefendant. This led the court to conclude that it would be unsafe to sentence both the codefendant and Mr. Buck to the penitentiary.

We do not believe that any of these reasons, either individually or taken in combination, can justify a seventy-five year sentence. The defendant's prior juvenile record, devoid of any conviction of a crime of violence, cannot be accorded substantial weight in the sentencing process. ⁶ Our juvenile law recognizes that youthful offenses may be a product of immaturity, home environment, or other causes beyond the juvenile's control. See State ex rel. D.D.H. v. Dostert, W.Va., 269 S.E.2d 401, 411 (1980). The objective fact remains, however, that none of the defendant's prior offenses involved any violence to the...