State v. Farmer

Decision Date09 December 1994
Docket NumberNo. 22162,22162
Citation193 W.Va. 84,454 S.E.2d 378
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Harry E. FARMER, Defendant Below, Appellant.

Syllabus by the Court

1. Pursuant to West Virginia's kidnapping statute set forth in W.Va.Code, 61-2-14a [1965], a trial judge, for purposes of imposing a sentence on a defendant for a term of years not less than twenty or a sentence for a term of years not less than ten, has the discretion to make findings as to whether a defendant inflicted bodily harm on a victim and as to whether ransom, money, or any other concession has been paid or yielded for the return of the victim. Because the findings by the trial judge are made solely for the purpose of determining the sentence to be imposed on a defendant and are not elements of the crime of kidnapping, West Virginia Constitution art. III, §§ 10 and 14, relating to a defendant's due process rights and right to a trial by jury, are not violated.

2. "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).

3. "Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction." Syl. pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Laura Young, Asst. Pros. Atty. for Kanawha County, Charleston, for appellee.

Matthew W. Crabtree, Asst. Public Defender, Charleston, for appellant.

McHUGH, Justice:

This case is before this Court upon the appeal of Harry E. Farmer from the jury verdict which found him guilty of joyriding and guilty of one count of kidnapping. By an order dated January 28, 1993, the Circuit Court of Kanawha County sentenced the appellant to six months imprisonment for his joyriding conviction and to ninety years imprisonment for his kidnapping conviction, with the two sentences running concurrently. For the reasons set forth below, we affirm the appellant's conviction and sentence.

I

The events in the case before us started on December 9, 1991, when the appellant went to Hardees, a fast-food restaurant in Marmet, West Virginia, where his wife, Pauline Farmer, worked, to talk to her about their marital problems. When Ms. Farmer arrived at work with her friend, Diana Petry, the appellant, with his gun, demanded that Diana Petry and Ms. Farmer get into Diana's car. After the appellant had driven the car less than a block, he released Diana Petry.

The appellant then drove Ms. Farmer to a remote cemetery in Boone County. Although the evidence is conflicting, there is evidence that the appellant threatened to kill himself and Ms. Farmer. Ms. Farmer, in an attempt to calm things down, told the appellant that she would reconcile with him, but she needed to return the car to her friend. The appellant allowed Ms. Farmer to leave alone in the car.

In the meantime, the Marmet police were informed of the situation, and they asked Arlie Sutphin, who retired from the Kanawha County Sheriff's Department as a sergeant and is now working as a private investigator, to locate the appellant. Mr. Sutphin located and arrested the appellant.

Eventually, the appellant was indicted for two counts of kidnapping and one count of aggravated robbery. The jury found the appellant guilty of one count of kidnapping with a recommendation of mercy. The jury also found the appellant guilty of joyriding. It is from this jury conviction and sentencing which followed that the appellant appeals.

II

Essentially, the first issue is whether under West Virginia's kidnapping statute, set forth in W.Va.Code, 61-2-14a [1965], the jury must make factual findings on the existence of bodily harm and on whether ransom, money or any other concession has been paid or yielded before the trial judge may impose a sentence for a term of years not less than twenty or a sentence for a term of years not less than ten. The appellant argues that the West Virginia Constitution art. III, §§ 10 and 14, which outline a defendant's due process rights and right to trial by jury, 1 would be violated if the jury is not allowed to make the factual findings regarding the existence of bodily harm and on whether ransom, money or any other concession has been paid or yielded before the judge can impose a sentence for a term of years not less than twenty or a sentence for a term of years not less than ten, pursuant to West Virginia's kidnapping statute.

The crux of this issue involves the language found in W.Va.Code, 61-2-14a [1965]. We acknowledge that W.Va.Code, 61-2-14a [1965] 2 is not a model of clarity. Therefore we will provide a simplified version of the relevant portions of the statute. W.Va.Code, 61-2-14a [1965] states that if any person by force, threat, etc., takes, etc., or kidnaps any other person for the purpose of receiving ransom, money, or any other concession, he shall be guilty of a felony and imprisoned for life, without eligibility of parole, unless the jury recommends mercy. Additionally, W.Va.Code, 61-2-14a [1965] provides that if a person is returned without bodily harm, but after ransom, money or any other concession has been paid or yielded, he shall be imprisoned for a term of years of not less than twenty. Furthermore, W.Va.Code, 61-2-14a [1965] states that if the person is returned without bodily harm and without ransom, money or any other concession being paid or yielded, he shall be imprisoned for a term of years not less than ten.

This Court, when addressing the provisions in W.Va.Code, 61-2-14a, which relate to the factual findings that must be made before a sentence for a term of years not less than twenty or a sentence for a term of years not less than ten may be imposed, in Pyles v. Boles, 148 W.Va. 465, 479, 135 S.E.2d 692, 701 (1964), cert. denied, 379 U.S. 864, 85 S.Ct. 130, 13 L.Ed.2d 67, stated:

[T]he foregoing statutory provisions [found in W.Va.Code, 61-2-14a] relating to the punishment do not state or prescribe degrees or essential elements of the crime of kidnapping, [therefore,] the jury is not required to make any finding with respect to the punishment to be imposed, except in the case in which it finds that the accused should be punished by confinement in the penitentiary for life.

Pyles clearly points out that the factual determinations regarding the existence of bodily harm and the payment of ransom, money, or the yielding of any other concession, relate to the punishment rather than to the proof required of the State as to the elements of the crime. Trial judges routinely make factual determinations when determining the sentences defendants should receive. As long as the jury is required to find whether the elements of a crime have been proven, the defendant's due process rights and right to a trial by jury are not violated by a trial court making factual determinations relating to sentencing.

The Supreme Court of the United States used this reasoning in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). In Walton, Ariz.Rev.Stat.Ann. § 13-703 (1989), which sets forth the sentence for first degree murder, was at issue. Ariz.Rev.Stat Ann. § 13-703 (1989) provides that aggravating or mitigating circumstances which are defined in § 13-703(F) and (G) are to be considered before a death or life sentence is imposed. 3 The appellant's argument in Walton was

that every finding of fact underlying the sentencing decision must be made by a jury, not by a judge, and that the Arizona scheme would be constitutional only if a jury decides what aggravating and mitigating circumstances are present in a given case and the trial judge then imposes sentence based on those findings.

Id. at 647, 110 S.Ct. at 3054, 111 L.Ed.2d at 524.

The Supreme Court of the United States rejected this argument stating that " '[a]ggravating circumstances are not separate penalties or offenses, but are "standards to guide the making of [the] choice" between the alternative verdicts of death and life imprisonment. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstances does not of itself "convict" a defendant ..., and the failure to find any particular aggravating circumstance does not "acquit" a defendant[.]' " Id. at 648, 110 S.Ct. at 3054, 111 L.Ed.2d at 525 (citation omitted). 4 Likewise, in the case before us, West Virginia's kidnapping statute simply provides standards the trial judge may use when determining which sentence to impose.

Accordingly, we hold that pursuant to West Virginia's kidnapping statute set forth in W.Va.Code, 61-2-14a [1965], a trial judge, for purposes of imposing a sentence on a defendant for a term of years not less than twenty or a sentence for a term of years not less than ten, has the discretion to make findings as to whether a defendant inflicted bodily harm on a victim and as to whether ransom, money, or any other concession has been paid or yielded for the return of the victim. Because the findings by the trial judge are made solely for the purpose of determining the sentence to be imposed on a defendant and are not elements of the crime of kidnapping, W.Va.Const. art. III, §§ 10 and 14, relating to a defendant's due process rights and right to a trial by jury, are not violated.

Additionally, in syllabus point 4 of State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982), this Court stated: "Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review." See also syl. pt. 7, State v. Layton, 189 W.Va. 470, 432 S.E.2d 740 (1993). In the case before us, the trial court noted in the record when sentencing the appellant that the appellant had prior convictions.

The trial court...

To continue reading

Request your trial
21 cases
  • State v. Hopkins
    • United States
    • West Virginia Supreme Court
    • January 31, 1995
    ...the United States Supreme Court as reflected of McMillan, supra, a conflict can be found in our recent decision of State v. Farmer, --- W.Va. ----, 454 S.E.2d 378 (1994). In Farmer, the Court held that for purposes of determining whether the ten- or twenty-year sentence is applicable under ......
  • State v. Phillips
    • United States
    • West Virginia Supreme Court
    • April 10, 1997
    ...v. Buck, 178 W.Va. 505, 361 S.E.2d 470 (1987). We have been asked to review kidnapping sentences on few occasions. In State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994), the defendant ordered his estranged wife and her co-worker, at gun point, to get into the co-worker's vehicle. He permi......
  • Sale ex rel. Sale v. Goldman
    • United States
    • West Virginia Supreme Court
    • July 19, 2000
    ...or court order, anyone committing a felony or misdemeanor offense in the presence of the officer. See State v. Farmer, 193 W.Va. 84, 89 n. 7, 454 S.E.2d 378, 383 n. 7 (1994) ("[A] peace officer may arrest without a warrant if there are reasonable grounds for him to believe that a felony has......
  • Parham v. Horace Mann Ins. Co.
    • United States
    • West Virginia Supreme Court
    • July 11, 1997
    ... ... Cameron, counsel for Appellees, and the trial court: ...         MR. LONG: ... As I understand, in the state of West Virginia, it's improper to remove a person from the jury based upon race. As I viewed the jury, the whole of the panel, there were two ... simply because it makes no sense to retry a case if the result assuredly will be the same"); Syl. Pt. 3, State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994) (reiterating that constitutional errors will be deemed harmless when it can be shown there is no reasonable ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT