State v. Houston

• Decision Date: 19 December 1980
• Docket Number: No. 14147,14147
• Citation: 273 S.E.2d 375,166 W.Va. 202
• Parties: STATE of West Virginia v. Douglas Ray HOUSTON and Durwin Ray Leonard.
• Court: West Virginia Supreme Court

Page 375

273 S.E.2d 375

166 W.Va. 202

STATE of West Virginia v. Douglas Ray HOUSTON and Durwin Ray Leonard.

No. 14147.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1980.

Syllabus by the Court

1. "Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' " Syllabus Point 8, State v. Vance, W.Va., 262 S.E.2d 423 (1980).

2. Where the defendant desires to challenge the length of his sentence for robbery by violence, he is entitled to do so by a timely motion to the trial court made within the time period provided by W.Va.Code, 62-12-3, for suspending a sentence, and an appropriate record shall be made to provide the factual basis for the sentence.

James M. Cagle, Charleston, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

We granted this appeal in order to determine whether the sentences of 30 years and 40 years, imposed on the defendants in these cases for robbery by violence, violates Article III, Section 5 of our Constitution relating to proportionality of sentences. ¹

Both of the defendants were convicted in the Circuit Court of Kanawha County of robbing a homeowner at pistol point and taking away certain items of valuable personal property. There is nothing contained in the record by way of presentence reports, or a transcript of the sentencing hearing, that would indicate on what factual basis the particular terms of the sentences were fixed.

We recognize that the statutory sentence for robbery by violence, W.Va.Code, 61-2-12, provides that upon conviction a defendant "shall be confined in the penitentiary not less than ten years." ² We have held in Syllabus Point 5 of State v. Chaffin, 156 W.Va. 264, 192 S.E.2d 728 (1972), and Syllabus Point 2 of State v. Slider, 156 W.Va. 653, 196 S.E.2d 85 (1973), that:

"The sentence for the crime of armed robbery must be for a definite term of not less than ten years and the imposition of an indeterminate sentence of from ten years to life for such crime constitutes error." ³

Initially, the defendants urge us to declare the punishment provisions of the armed robbery statute per se unconstitutional as violating the cruel and unusual punishment provisions of our Constitution. We decline to do so in light of our settled case law upholding the constitutionality of this provision against the same challenge. E. g., State ex rel. Vascovich v. Skeen, 138 W.Va. 417, 76 S.E.2d 283 (1953), cert. denied, 346 U.S. 916, 74 S.Ct. 277, 98 L.Ed. 411; Ex Parte Farmer, 123 W.Va. 304, 14 S.E.2d 910 (1941); State v. Newman, 108 W.Va. 642, 152 S.E. 195 (1930); Franklin v. Brown, 73 W.Va. 727, 81 S.E. 405 (1914). The facial repugnancy of the statute rests in the fact that it contains no maximum limit of punishment. However, most courts which have considered open-ended sentencing statutes have upheld the constitutionality of the statute as against claims of cruel and unusual punishment. E. g., Giblin v. United States, 523 F.2d 42 (8th Cir. 1975), cert. denied, 424 U.S. 971, 96 S.Ct. 1470, 47 L.Ed.2d 739 (1976); Donaldson v. Wyrick, 393 F.Supp. 1041 (W.D.Mo.1974); Fields v. State, 501 P.2d 1390 (Okla.Crim.App.1972); Seibert v. State, 457 P.2d 790 (Okla.Crim.App.1969); Angle v. State, 501 S.W.2d 99 (Tex.Crim.App.1973); Rodriguez v. State, 509 S.W.2d 625 (Tex.Crim.App.1974); Albro v. State, 502 S.W.2d 715 (Tex.Crim.App.1973).

Except in the area of the death penalty, ⁴ the United States Supreme Court has been reluctant to strike down a punishment provision under the Eighth Amendment cruel and unusual punishment clause. A related approach is to utilize the concept of proportionality, which is embodied in the Eighth Amendment, to strike down a particular sentence. In Rummel v. Estelle, 445 U.S. 263, 271-72, 100 S.Ct. 1133, 1138, 63 L.Ed.2d 382, 389 (1980), the Court recognized that the Eighth Amendment does contain a proportionality element, but the Court refused to apply it in that case:

"This Court has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime. See, e. g., Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Ingraham v. Wright, supra, 430 U.S. at 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (dictum); Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion)."

In Syllabus Point 8 of State v. Vance, W.Va., 262 S.E.2d 423 (1980), we recognized that our Constitution does contain an express proportionality principle:

"Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: 'Penalties shall be proportioned to the character and degree of the offence.' "

Vance relied on our earlier cases of State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910), and Martin v. Leverette, W.Va., 244 S.E.2d 39 (1978), both of which acknowledged that our proportionality clause could cause an individual sentence to be struck down as disproportionate.

Nor are these our only cases where this Court has considered disproportionate sentences. In Franklin v. Brown, 73 W.Va. 727, 81 S.E. 405 (1914), a life sentence for robbery was challenged on habeas corpus. The Court concluded that it had neither sufficient facts nor the trial record that was necessary to resolve the questions, but did state:

"Surely under our constitution fines so excessive, imprisonment so long, looking to the offense, as to shock our feelings of humanity, conscience, justice and mercy would be branded by this clause." 73 W.Va. at 730, 81 S.E. at 406.

In State v. Newman, 108 W.Va. 642, 152 S.E. 195 (1930), the defendant challenged the constitutionality of his twenty-five year sentence for robbery by violence. This Court reviewed the sentence and concluded under the facts of the case that it was not constitutionally disproportionate.

A number of courts have, as to specific sentences, considered whether they are disproportionate to the underlying offense and the facts surrounding the defendant's background. E. g., Carmona v. Ward, 576 F.2d 405 (2nd Cir. 1978), cert. denied, 439 U.S. 1091, 59 L.Ed.2d 58, 99 S.Ct. 874 (1979); Faulkner v. State, 445 P.2d 815 (Alaska 1968); In Re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1972); People v. Keogh, 46 Cal.App.3d 919, 120 Cal.Rptr. 817 (1975); Cox v. State, 203 Ind. 550, 181 N.E. 469 (1932); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); State v. Pratt, 36 Wis.2d 312, 153 N.W.2d 18 (1967); see Note, Eighth Amendment Proportionality, 7 Am.J.Crim.L. 253 (1979). In these cases, the courts acted on the basis that the constitutional disproportionality principle made the particular sentence invalid.

In other cases, courts have achieved much the same result by finding that they have the inherent power to review the length of the sentence as a part of their power to review criminal appeals. E. g., Bailey v. State, 238 Ark. 210, 381 S.W.2d 467 (1964); State v. Ledbetter, 83 Idaho 451, 364 P.2d 171 (1961); State v. Johnson, 67 N.J.Super. 414, 170 A.2d 830 (1961); Hudson v. State, 399 P.2d 296 (Okla.Crim.App.1965); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (1959); State v. Fortes, 114 R.I. 161, 330 A.2d 404 (1975); McCleary v. State, 49 Wis.2d 263, 182 N.W.2d 512 (1971).

In State v. Newman, 108 W.Va. 642, 152 S.E. 195 (1930), where this Court did review the sentence on a conviction for robbery by violence, it based its review not only on the proportionality clause of our Constitution, but also on "whether the trial court, under the facts and circumstances shown in this record, has abused its discretion in sentencing the prisoner to confinement for 25 years." 108 W.Va. at 647, 152 S.E. at 196-97.

One of the problems not often discussed in the cases in this area is that any meaningful appellate review must to a large degree be predicated on a sentencing record. We have in the past spoken about the value of a developed factual record in order to provide a meaningful judicial review. E. g., In re Brown, W.Va., 262 S.E.2d 444, 446 (1980); State v. Gary, W.Va., 247 S.E.2d 420, 421 (1978).

The scope of inquiry before sentencing occurs was addressed by the Illinois Supreme Court in People v. Adkins, 41 Ill.2d 297, 300-01, 242 N.E.2d 258, 260-61 (1968):

"(T)he judge in determining the character and extent of punishment is not limited to considering only information which would be admissible under the adversary circumstances of a trial. While it must exercise care to insure the accuracy of information considered and to shield itself from what might be the prejudicial effect of improper materials (People v. Crews, 38 Ill.2d 331, 231 N.E.2d 451), 'the court is not confined to the evidence showing guilt, for that issue has been settled by the plea. The rules of evidence which ordinarily obtain in a trial where guilt is denied do not bind the court in its inquiry. It may look to the facts of the (crime), and it may search anywhere, within reasonable bounds, for other facts which tend to aggravate or mitigate the offense. In doing so it may inquire into the general moral character of the offender, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, the stimuli which motivate his conduct, and, as was said in People v. Popescue, 345 Ill. 142, 177 N.E. 739, 77 A.L.R. 1199, the judge should know something of the life, family, occupation and record of the person about to be sentenced.' "

These guidelines are not...