Dewey Hart v. Ira M. Coiner, Warden of the West Virginia State Penitentiary

clause, was for resolution agreements have to do arbitration involved here Judge. his I consider that grievances the District and reso- with settlement finding regard arising disagreements in this was correct. out lution unions and the contracts between I would affirm. Association members of Contractors Building Division, Labor Relations [The Section, Asso- Contractors of the Ohio

ciation, Contractors The General Fulton,

America, Inc., a Inc.].

stranger Association to such Contractors provisions con- the arbitration

and to contracts; relief tained its sought Fulton, Inc., subject here is to Dewey HART, Appellant, it is not a arbitration to which an clause .v party, de- thus an arbitrator to have COINER, Ira Warden M. Vir conduct its future termine how should ginia Penitentiary, Appellee. State majority relations. Neither labor No. 71-1885. plaintiff opinion nor the unions’ address any authоrity support such cite to us Appeals, United States Court of arbitration rule. The a fact Fourth Circuit. view, not, make does Gerace asked Argued April 2, 1973. Construction, supra, Inc., 193 NLRB July 13, Decided Council, Carpenters su- District pra, control- 201 NLRB without No. Judge ling analogy The District here. discharged correctly defined hearing relevant

function after

proofs: words, go

“In other this court can no

further than or to determine whether plaintiffs prima

not out made a have ego alter facie case on the based single theory. employer It is the

opinion plaintiffs this court so, that, failed to do there-

fore, judgment be rendered for should

the defendants.

“This court heard evidence and took

testimony relating on issues ownership integrated

common and the

relationship companies between Boyd Heminger, Inc. and Frank Ful-

ton, opinion Inc. The court is of the testimony

that said evidence and will finding support that the two de- fendants can considered to be

single employer.” proofs Whether the out made even ego

prima single facie case of alter

employer Fulton, theory, thus to make containing

Inc., party to a contract Wishart,

Richard Robert Vanore and Nakell, (Barry Third Year students Chaрel Hill, [Court-appointed C. N. brief), appellant. on counsel] Hardison, Atty. Gen., E. Richard Asst. Browning, (Chauncey Jr., W. Va. H. Atty. Gen., Va., of W. and E. Leslie and un- Atty. Gen., that it to cruel cessive amounts Hoffman, III, of W. Asst. forbidden brief), usual appellee. Va., eighth amendment. BOREMAN, Senior Circuit Before perjury In 1968 Hart was convicted BUTZNER, Judge, CRAVEN result of court in a West testimony Judges. Circuit gave trial of at the murder Perjury carries a son. Judge: CRAVEN, Virginia Circuit one nor of not than less West years. 61- than ten W.Va.Code more § presently Dewey Appellant is Hart sentencing (1966). on the Prior 5-3 Virginia State West in the confined conviction, however, perjury the state Penitentiary judgment and sen- under charging Hart with information filed an imprisoned for there be he tence that being Vir- offender. West an habitual having vi- life for natural the rest of his ginia’s life requires a statute recidivist Virginia’s statute. recidivist olated West anyone for who has been sentence mandatory sentence, under The life separate times' of offenses three victed law, upon Virginia three rests West peni- “punishable by in a confinement writing (1) check prior convictions: tentiary.” 61-11-18 W.Va.Code § (2) $50; on insufficient funds (1966). forged transporting lines across state against charge (3) $140; and The recidivist of in the amount checks perjury. sought unavailingly upon perjury Having convic Hart based was thereup- courts, prior tion and two convictions—one Hart relief in the state writing petition prosecuted for writ 1949 for a check on insufficient his on $50,1 for in corpus Dis- one in States and 1955 United fúnds habeas forged transportation appeals the refusal of checks He terstate trict Court. grant presented judge We relief. no evidence worth Hart the district $140. information, and remand with instructions. to contradict the recidivist reverse finding and, pursuant he upon the that conclusion Our decision rests Virginia stat- three offenses recidivist had been that the West convicted punishable by imprisonment peni is so dis- in a life sentence ute’s proportionate imposed tentiary, the mandato seriousness court grossly ry offenses, imprisonment.2 ex- underlying and so sentence of statutory cut-off effective 1. amount was denied assistance of counsel This appointed point. in the amount until been in that counsel was not Had the cheek given day guilty plea, $49.99, been he his and Hart could not have entered guilty unduly sentence; passing (2) plea check bad his was coerced. a life punish pro- being than There no record of the 1949 $50 in an less amount county jail” ceeding, hearing “in the a full both conten- able confinement judge, penitentiary) (not than five for not less tions was conducted district days. 61- § who denied relief. than 60 W.Va.Code nor more Thus, (1966). a life sen instead of 3-39 appointment Late of counsel -raises a exposed tence, he would have presumption the defendant was de years’ possibility im extra five of an nied effective assistance counsel. prisonment offender. W.Va. as a second Peyton, 131, (4th Stokes v. 437 F.2d 136 (1966). Code 61-11-18 § 1970) ; Peyton, Twiford 372 F.2d Oir. v. however, 670, (4th 1967). Here, appeal that both Oir. also asserts 673 On judge’s agree his find we with the district 1949 bad check conviction effectively perjury ings this are invalid and the state rebutted 1968 conviction Maryland, presumption, F. be used as bases Turner v. therefore cannot charge. 852, (4th 1963), dis- and that offender We 2d Oir. the habitual plea agree. attack re merit was entered as a There is no Hart’s plea conviction, bargain, need insulat and we sult of a valid thus on the 1968 Brady briefly ing See case. the 1949 it from collateral discuss attack. States, 742, that his 1949 conviction 90 S.Ct. Hart contends v. United 397 U.S. (1) (1970). illegally 1463, because obtained 25 L.Ed.2d 747 way I. such a as to violate consti various provisions. tutional Edwards v. South Initially are we note that we Carolina, 229, 235, 680, 372 U.S. 83 S.Ct. presented with a conviction and (1963) (speech L.Ed.2d 697 as statutory pursuant obtained a state ; sembly) Hopkins, Yick Wo v. 118 U.S. In scheme which is valid on face. its 356, 373-374, 1064, 6 S.Ct. 30 L.Ed. 220 deed, Supreme upheld this Court has (1886) (equal protection). See Brown habitual offender statute Lоuisiana, 131, 142, 383 U.S. 86 S.Ct. process equal protection due (speech L.Ed.2d 637 ‍​‌‌​​​​‌​‌‌​​‌‌​​‌​‌‌‌‌​‌​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‌​‍Oyler Boles, 448, 82 claims. U.S. assembly). S.Ct. 501, (1962); L.Ed.2d 446 Gra Virginia, punishment ham v. West U.S. “That the is not se vere, abstract,’ ‘in irrelevant; S.Ct. 56 L.Ed. 917 But we agree day do not with the ‘[e]ven state’s contention one would be a cruel these decisions foreclose Hart’s and unusual for the ” challenge. present eighth having ‘‘crime” amendment of a common cold.’ Georgia, Hart not attack the statute Furman 238, 273, does itself. 408 U.S. urge imprisonment 2726, 2744, He 92 does not that life S.Ct. 33 L.Ed.2d 346 per (1972) J., se is either Nor (Brennan, concurring). cruel unusual. urge statutory does he that the scheme We think it clear that to view the discriminatorily applied. has been The recidivist statute with its issue he is does raise whether the recidi mandatory life facially sentence as vist life sentence in this case stitutional not is the end of inquiry. the disproportionate is so excessive and to underlying the offenses as to constitute II. punishment. cruel unusual areWe precluded deciding issue, not from The this doctrine that an excessive think, by may we solely the sentence fact that the be West Vir invalid because of ginia disproportionality recidivist scheme is constitutional is not a one. new Mr. written, concededly as suggested for a valid statute Justice Field in 1892 that the may eighth applied particular a in in prohibition3 case amendment’s di- is ap- Hart testified that after counsel was earlier Indiana bad check conviction. A pointed, adjourned proceeding the a conviction as recidivist would have re- given opportunity five-year and he was an in to discuss sulted аn additional pending attorney. charge imposed. being guilty the with his We think Hart’s plea, intelligent tactic, He further testified that lie admitted his entered trial guilt attorney, to in who turn advised is thus insulated from attack. As the plead guilty Supreme upholding him that he “didn’t have to in Court has stated jury validity plea, and could have a trial.” We be- the a fully supports defendant], lieve the record the [the district It be that faced judge’s relief, strong against denial of with a case him and hearing recognizing acquit- the which the District Court that his chances for slight, plead preferred guilty in conducted ascertained considerable tal were to attorney penalty detail not what did limit and thus failed do before trial but dem- rather than to elect trial beyond onstrated doubt the accused Brady States, 749, 742, in fact hаd no information to com- v. United 397 U.S. lawyer 1463, 1469, municate which could have 90 S.Ct. 25 L.Ed.2d 747 helpful (1970). to the defense. Turner, supra, 318 F.2d at 854. ample There is also in evidence It is now settled that the ban of the plea eighth applicable record that Hart’s was en- is amendment plea bargain. through tered as the result states the fourteenth amendment. prose- exchange guilty plea, Georgia, 238, In for the Furman v. n. 408 U.S. 257 charge agreed 1, 2726, (1972) ; not with cutor 92 S.Ct. 33 L.Ed.2d 346 offender, being California, 660, an habitual as he could Robinson v. 82 370 U.S. properly (1962). 1417, have done the basis of an S.Ct. .2d L.Ed portionality static, only against concept torture or barba rected not “progressive” punish rism, all one which draw “must “but [also] length meaning evolving its excessive from the standards their ments which disproportioned decency progress severity greatly of a that mark are maturing charged.” society,” O’Neil v. Ver enhances the difficul- the offenses ty. 323, 339, 693, Dulles, 86, 101, Trop mont, 356 U.S. S.Ct. 144 U.S. J., 590, 598, (Field, 699, dis S.Ct. 2 L.Ed.2d 630 36 L.Ed. 450 senting) . Although applicable the standard un- States, eighth der the susceptible amendment is one “not In Weems v. United 217 U.S. definition,” 367, 549, precise there 54 L.Ed. 793 S.Ct. adopted objective (1910), are are Mr. Justice several factors which Court determining eighth amendment useful in whether the sen- Field’s view constitutionally precept dis- it is “a tence this case is when it stated that now proportionate. justice test to is a be used for crime focusing analysis graduated proportioned one on an cumulative should be Furman, noticed, su- Weems, of the combined factors. In the Court offense.” (Bren- highest pra, apparent approval, 408 U.S. at S.Ct. 2726 that the nan, J., concurring). pre- had court of Massachusetts state viously possibility conceded element to The initial be ana “punishment state lyzed determining pun whether long might dispro- term of be so constitutionally dispropor ishment portionate to the as to offense constitute tionate is the nature it offense punishment.” cruel unusual Furman, supra, 325, at self. 92 S.Ct. 368, 549; Weems, supra, at 30 at S.Ct. (Marshall, J., concurring). 2726 Hart’s Warden, accord, Ralph v. 438 F.2d 786 writing first for conviction was a bad (4th 1970).4 Cir. 1949, check the second in concurring opinion Furman, forged In his in transporting checks six lat Douglas Mr. Justice the idea of finds er. third conviction was seri His more Magna disproportionality committing during as old as the perjury ous— “A man Carta: free shall not be murder trial of his son. But there even offence, except amerced for in a triviаl a moral faced dilemma: to choose degree accordance with the of the of- duty tell between his family the truth and ; fence and shall loyalty. for a serious offence he according gravity be amerced to its assessing gravity In nature Furman, supra, . . . .” 408 atU.S. offense, repeatedly courts em 243, 92 S.Ct. at 2729. phasized the element violence and punish- danger While it seems settled person. g., E. Snider v. proportioned ment Peyton, 626, (4th must be to the of- 356 F.2d 627 Cir. committed, application 1966); Alabama, fense principle this Rudolph see 375 U. particular 889, 155, fact situation is 84 S. 11 L.Ed.2d 119 S.Ct. difficulty.5 pro- (1963) J., dissenting not without That (Goldberg, from a Judge opinion Ralph 4. Butzner’s 6. The Court Weems characterized compilation authority punishment tains an excellent cruel and unusual clause as proportionаlity. “progressive” the doctrine of and “not fastened to the may acquire obsolete, which] [one g., Ralph Warden, 786, 5. E. 438 F.2d opinion meaning public becomes en- (4th 1970) ; Packer, Making 789 Cir. see justice.” lightened by a humane Weems Crime, Fit the Punishment Harv.L. 77 States, 349, 378, v. United U.S. ; (1964) Wheeler, Rev. 1071 Toward a 544, 553, (1910). S.Ct. 54 L.Ed. 793 Theory of Limited Punishment: An Eighth Amendment, 258, Georgia, 238, Examination 7. Furman v. 408 U.S. (1972) ; Note, 2726, Stan.L.Rev. L.Ed.2d 346 S.Ct. Eighth concurring). (Brennan, J., Effectiveness of the Amendment: Appraisal An of Cruel and Unusual Pun- ishment, 36 N.Y.U.L.Rev. certiorari).8 Ralph denial of might again? In v. War- imprisonment do it Life den, supra, 788, Judge 438 F.2d at penultimate Butz- is the punishment. Tradi- ner gra- stated that tion, “there are custom, rational and common sense reserve culpability dations of that can be made persons for those violent who are dan- injury on the gerous basis of to the victim.” practical to others. It is not a None of Hart’s offenses were petty solution to crime in ‍​‌‌​​​​‌​‌‌​​‌‌​​‌​‌‌‌‌​‌​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‌​‍America. person. None involved violence or Aside proportionality principle, from the danger persons of violence toward enough there prisons aren’t in America property. very The bad check case was to hold all the Harts that afflict us. nearly penny trivial —one less Mr. Justice Brennan has observed: face amount of the check and the of- significantly “If there is a less severe fense five-to-sixty- would have been a punishment purposes to achieve the day petty misdemeanor. punishment inflicted, which the unnecessary inflicted is Another factor be exam therefore excessive.” legislative omit- [Citations purpose ined is the behind the Furman, supra, punishment.9 ted]. at at S.Ct. Furman, supra, 408 U.S. think We that a J., at (Brennan, 92 S.Ct. 2726 imprisonment, punish- the most severe concurring). argues The state Virginia law, ment available under West punishment' may not be and unusu cruel unnecessary legisla- accomplish purpose, al if it serves a valid and that purpose protect society tive from an leg the life sentence here serves such individual who has committed three purpose persons islative deter other —to wholly period nonviolent crimes over a protect from future violations and to so years. twenty Nor, except on the ciety from habitual criminals.10 theory better, that more is is it neces- argument proves Such an too much. sary years’ possi- to deter others. Ten Assuming validity of the deterrent imprisonment perjury ble is cаlculat- theory, doubt,11 and there is room for stop ed to make one and think —whether good then a life sentence is for the or not it does. purpose, surely a death sentence would Putting be better. Hart in objective for A third factor is com the remainder of his life for of- parison punishment three of Hart’s with how relatively fenses that rank in the hi- punished low he would been in other erarchy presumably pre- jurisdictions.12 of Indiana, crimes would Three states — passing vent him from Kentucky, bad checks provide and life im Texas — likely not prisonment would make of mandatory him a truthful to as the sentence man. Is it a upon rational of imposed any exercise state be of the conviction police power put away to a man for life three Tennessee also felonies. While expense —at provides upon tremendous the state— mandatory to for a sentence 20-year period passed because over a he offense, the third of the offenses two transported or three bad and specified checks be violent must felonies. supra Packer, 4, 8. See also Dye Skeen, 90, note at 1077. 10. 62 See v. 135 W.Va. 681, (1950) ; Stout, S.E.2d 689 State Virginia 9. The fact that a West statute 443, (1935). 398, 444 116 W.Va. 180 S.E. requires a life sentence does not estab- punishment’s constitutionality Goldstein, lish Donnelly, in R. & R. See J. particular eighth a Schwartz, (1962) ; case. The amendment Law 303 H. Criminal legislative ju- Packer, is a limitation on botli and The Limits of the Sanc- Criminal Georgia, (1968). dicial action. Furman tion 39 238, 241, 2726, U.S. S.Ct. L.Ed.2d survey 12. The attached of state statutes (Douglas, J., concurring) ; prepared Nakell, Barry Professоr California, 660, Robinson v. 370 U.S. an instructor at counsel for Hart and (1962). S.Ct. 8 L.Ed.2d 758 University North Law of Carolina part School, and to us as was submitted appeal. of Hart’s brief on Thus, Virginia’s for for sentence scheme vides recidivist West first-degree only among top in in the three other is nation four crimes — murder, (1966); severity, 61-2-2 number W.Va.Code terms of and § discretionary rape, (1966); and W.Va.Code 61-2-15 Ten states make a § one.13 felony kidnapping, 61-2-14a after three W.Va.Code § life sentence available rationally urged however, (1966).14 it be provisions, Can These convictions. dangerous society to provide judicial Hart as is for consideration deserving punishment mur- underlying prior as as nature offenses of the sentence, derer, rapist, kidnapper imposition ? an amelio- to of the rating in Vir- not allowеd West factor penalties pro- of the Consideration ginia. grave in of violence vided for crimes treat states If we assume these other irrationally Virginia reveals West felony, which as a bad check case $50 upon disparate Hart: treatment visited theoretically possible doubtful, second-degree murder, years, W. 5-18 exposed that Hart could have been (1966); robbery, not 61-2-3 Va.Code § imposition states of a life years, 61-2-12 less than 10 W.Va.Code § Virginia. practi- besides But as West (1966); intent malicious assault with certainly matter, cal it would we think kill, years, 61-2-9 2-10 W.Va.Code providing not in those ten states occur administering (1966); poison in- underlying judicial evaluation years, kill, tent 3-18 W.Va.Code § sen- the offender. Had the offenses and first-degree arson, (1966); 2-20 61-2-7 tencing judge able exercise herе been years, (1966); and W.Va.Code 61-3-1 § discretion, he it is hard to believe violence, extortion threats of given time as much would have Hart manslaughter, years, 1-5 W.Va.Code §§ might give convicted serve one 61-2-4, (1966). 61-2-13 second-degrée murder. three offenses of repetitive commission of all Yet, got re- the maximum without course, offenses, could result these gard petty relatively nature recidivist, underlying punishment scheme. under the convictions. Yet, of these second commission after a comparison of A dangerous crimes, extremely violent jurisdiction for available in the same added five could be a factor. other likewise offenses sentence, 61- W.Va.Code § maximum supra, Weems, at 30 S.Ct. U.S. Only of- the third pro- 11-18 793. West L.Ed. (cid:127) imprisonment six more than Virginia’s not 13. It has been noted that however, Prоvided, months, both. “fel- word statute does contain person three ony.” has convicted Passing such amount bad check violating 14-107, shall felony he times of G.S. states. $50 is not some subsequent (Supp. g., and áll on the fourth E. § N.C.Gen.Stat. 14-107 punished 1971) in the discretion provides part: victions be district, superior as for or court (1) such' or If the amount of check general fifty ($50.00), misdemeanor. dollars not over draft.is' by from furnished punishment It is not information clear fine not shall be check fifty ($50.00) Hart’s bad us counsel whether or im- exceed dollars triggered prisonment days. the recidivist offense would for not more than 30 Indiana, Kentucky, person Texas. Provided, or however, law of if such has violating been convicted three times of rape 14-107, manda- A life is not he on the fourth G.S. shall pleads guilty tory subsequent pun- or the accused where all convictions be mercy. recommends W.Va.Code in the ished discretion the district (1966). general superior A life sentence § 61-2-15 as for a mis- court kidnapping likewise is not demeanor. unharmed, victim returned If where the of such amount check payment ($50.00), fifty of ransom. with or without draft over dollars W.Va.Code 61-2-14a § shall a fine not ($500.00) exceed five dollars hundred any legitimate legislative fense could such an offender pur- be sen- achieve pose. harshly tenced as as was Hart. We therefore reverse remand with analyzing After what we be instructions that the writ of cor- habeas lieve to be the relevant criteria under pus issue unless within a reasonable time eighth amendment, conclude that we the state chooses to resentence Hart imposed upоn the sentence con solely perjury the basis of his convic- wholly dispro

stitutionally tion. excessive and portionate to the nature the offenses Reversed and remanded with instruc- committed, necessary and not tions.

APPENDIX HABITUAL OFFENDER IF PROVISIONS MOST RECENT CONVICTIONIS PERJURY State Citations Minimum Number Maximum Sentence of Offenses Alabama No statute habitual offender

Alaska § 12.55.050 3d 4th 2d felony felony felony Life, Double Maximum times Maximum discretionary Arizona § 13-1649 2d prison offense Not less than years § Arkansas 2d offense prison 43-2328 Maximum 3d offense Maximum prison 4th offense 1.5 times prison Maximum California P.C., § though perjury can be a prior Is Does the most recent apply perjury offense, § Colorado' felony 39-13-1 3d Triple maximum felony Life, mandatory 4th Connecticut § 53a-40 2d felony years 3911(a) § discretionary 4th felony Life, Delaware tit. 11, Florida § 775.084 2d felony (w/15 years) years Georgia § Mandatory 2d maximum 27-2511 offense Mandatory 4th maximum felony without parole Hawaii No statute habitual offender

Idaho § 19-2514 3d felony years to Life statute Illinois No offender habitual § felony Mandatory

Indiana 9-2207 3d jail § Iowa 25 years 747.5 3d term of at least 3 § Kansas Double maximum felony 21-4504 2d Life, discretionary felony 3d § Not less than double Kentucky 2d felony 431.190 1st sentence Life, mandatory felony 3d § Double maximum Louisiana 15-529.1 2d and 3d felonies discretionary 4th felony Life, § prison discretionary Maine 15-1742 2d offense Life, Maryland No statute habitual offender jail § mandatory

Massachusetts Maximum, 279-25 3d term of at years least 3 Michigan § felony Life, discretionary ‍​‌‌​​​​‌​‌‌​​‌‌​​‌​‌‌‌‌​‌​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‌​‍28.1084 4th Minnesota § 609.155 2d felony Maximum years priors, up times number ^[40]

APPENDIX'—Continued IF PROVISIONS HABITUAL OFFENDER CONVICTION IS PERJURY—Continued MOST RECENT Sentence Maximum Minimum Number State Citations of Offenses statute No offender Mississippi habitual discretionary § Maximum, prison 2d offense 556.280

Missouri § years than 10 Not less offense prison 2d Montana 94-4713 § 20 years which offense for 3d Nebraska 29-2221 served time prison Nevada § 207.010 4th 3d felony felony Life, ^[20] years mandatory New Hampshire § § 651:6 591:1 3d offense 3d felony prison served ^[30] 15 years years high discretionary § Life, 4th misdemeanor 2A:85-12 Jersey New § maximum felony Double 2d 40A-29-5 New Mexico maximum felony Triple 3d mandatory Life, 4th felony § discretionary felony Life, 3d New 70.10 York P.C. §§ discretionary Life, felony 7.6 4th North 14-7.1-14- Carolina North Dakota §§ 12-06-21 12-06-18- 3d 4th 2d felony felony felony Double Life, years discretionary maximum including maximum § Mandatory offense, 3d listed Ohio 2961.11 forgery perjury and § mandatory Life, such offense 4th 2961.12 Oklahoma tit. § 2d prison offense Minimum years Oregon Unavailable

Pennsylvania tit. § 2d and 3d listed 4th offense (including perjury) within years offenses, Double Life, discretionary maximum § 25 years Additionаl offense prison 3d Island Rhode 12-19-21 § penalty 2d Double felony 22-7-1 South Dakota discretionary Life, felony 4th (two § mandatory must Life, felony 3d 40-2801 Tennessee felonies) listed violent Texas P.C. P.C. Art. 62 Art. 3d 2d felony felony Maximum Life, mandatory years less than 15 Not felony 3d

Utah 76-1-18 Vermont §§ and 1 4th felony Life, discretionary discretionary Life, 2d offense 53-296 discretionary Washington Life, 2d felony 9.92.020 Life, felony 3d Wisconsin 939.62 2d felony within years Additional 6 years Wyoming 6-9 4th 3d felony felony Life, Mandatory Judge BOREMAN, charge. pending Circuit withdrew to the Senior discuss attorney (dissenting): The told him if he that did not plead guilty prosecuting attorney the prior which convictions on One proceed against would him as a second sentence was Hart’s habitual offender thereby offender years five add a conviction on December based was sentence, plead his but that if he did against issuing insuf- a check guilty prosecutor disregard the would upon ficient funds. He convicted was any prior felony conviction.1 He in- plea guilty. I Hart his of conclude that formed Hart he did not have to did not have the effective assistance plead guilty and could trial. entry counsel in the connection with guilty Counsel asked if Hart he was guilty plea, his that his 1949 conviction charge the and Hart “told him that I was invalid and that should have been guilty they my was had name on the rejected as a “conviction” at his trial as check.” Hart further re- testified a recidivist. therefore conclude that I sponse query to a about he whether denying the in ground ha- district court erred attorney his rounding had discussed the sur- facts beas relief and on that alone I against charge the him: “He rеach end result of reversal. would they check-against told me had the me believe, however, my I course my that, name on it. And basing follow, in brothers have chosen to ., going Prosecutor, was their and unusual decision on cruel ask for the five former conviction. Eighth punishment provisions of the plead That I would then I unnecessary Amendment, only just get years.” would the one to five unsupportable, do also and I not hesitate attorney Hart stated that he and his dis- disagreement therewith. to indicate nothing regard cussed further with THE 1949 CONVICTION charge against him. represented Hart was in 1949 inex- It is settled law this circuit that perienced appointed who counsel appointment late of counsel so inher- prac- him and admitted to who had been ently prejudicial prima toas constitute a in March first time Hart tice 1949. The facie case of denial effective assist- attorney court-appointed met his inwas Peyton, ance counsel. Stokes day the courtroom on the he entered his (4 Pey- 1970); F.2d 131 Cir. Fields v. guilty plea. Counsel testified at the evi- ton, (4 1967); 375 F.2d 624 Cir. Twi- dentiary hearing below as witness for Peyton, (4 ford v. F.2d 670 Cir. faintly the State but he did not even re- 1967); Virginia, Martin v. 365 F.2d 549 having represented call in 1949. (4 1966); Cunningham, Cir. Jones v. appoint- Hart testified that after the 1963). (4 F.2d 347 Cir. The burden attorney ment of counsel he upon and the the State to introduce satisfaeto- appears likely memory against It that Hart’s him if he stood trial and jury? liis conversation with counsel was ac faced a respect. attorney curate in this testi A. I have. fied : you Q. On what basis would do that? practice [I]t was a common for the . prosecuting attorney’s repre- A. On the prosecuting attorney, to in- ... you represent- sentation me that are dicate that if a defendant wished to ing man, plead this if he wants to plead guilty prior conviction, who had a guilty, forget previous will con- we prior that placed against conviction would not be viction and won’t add the additional five although him, it was not years. go If we have to all the bother expressed condition but was certain- trying case, is found ly implied, that if a defendant stood trial why put guilty, five then we will previous and was convicted that years onto it. put him; viction would be pleaded guilty just if he repeated message whereas it would not I from prosecuting attorney oc- on different you Q. Have advised a ever defendant casions. previous thаt a conviction would used ry presumption evidence to overcome the dictment the drawer makes resti- arising prejudice therefrom. In hold- tution. ing that the met this State burden appears It thus that Hart “admitted majority this case the states that Hart guilt” only his as to the first element guilt “testified that he admitted his to above; listed and the evidence indicates attorney, his who turn advised him appointed that his counsel made no at- plead guilty that he ‘didn’t have to tempt explain to the additional ” elements (n. Majori- could have a ty Opinion). trial.’ investigate to Hart any or to them majority ap- The then course, manner. “Of it is not law- proves applies facts herein yer defenses, to fabricate but he does Maryland, the from Turner v. statement obligation have an affirmative tо make 1963), (4 that 318 F.2d 854 Cir. the inquiry suitable to determine whether beyond “demonstrated evidence doubt valid ones Cunningham, exist.” Jones accused in fact had no informa- supra, 313 F.2d lawyer tion to communicate to which helpful could have been defense.” responsibility An additional of his at- however, record, did As I read Hart torney, apparently since Hart was enter- testify guilt “admitted his he ing guilty plea his prosecution to avoid attorney,” nor his does evidence recidivist, investigate as a was to demonstrate that Hart had no informa- validity prior of the upon conviction helpful could tion which have been to his charge which the recidivist would have defense. Again, appear based. it would responsibili- from the evidence that this told Hart testified his attor- ty following was not Imet. believe ney, guilty they “I had name was language appropriate is in this case. Assuming, however, on the check.” charged appears likely, that Hart was sugges- acquiesce “We cannot in the issuing fraudulently upon a check tion that because told [the defendant] insufficient funds under Section 61-3- attorney court-appointed his that he Virginia Code, 39 of the West such of- guilty nothing there was else for by fense far from is established lawyer plead him do but fact, standing alone, ap- that one’s name guilty light hope for a sentence. pears on the check. The elements of the just indicated, As we have avenues offense are several and include: open, defense remained and the mani- fest failure to seek them out (1) drawing delivering The or to an- chargeable tо counsel the lateness check; other of a appointment, both, not to (2) being Cunning- The check drawn [the on insuf- Jones defendant].” ham, funds; supra, ficient 313 F.2d at 352. majority’s (3) being conclusion that The something Hart’s check used to obtain guilty plea value, was “entered as an intelli- which inwas gent tactic, obtained; trial insulated fact thus [and] persuasive. from attack” is not To (4) knowledge With being that the check is characterize the “trial tactic” as “intelli- drawn on insufficient gent” beg question is to here funds; presented. If in fact was not ef- fectively represented counseled and defraud; prima With intent “intelligent.” plead was not facie evidence of this element by established evidence of the The violation of constitutional Hart’s drawing rights proceeding appears of a check with knowl- at the 1949 edge being that it is drawn on in- obvious. If decision in this case .the funds, sufficient thereon, unless before in- were based would be unneces- justice equal protection is still sary resort to the claimed the denial majority prohibition afforded within the the constitu- to be here Eighth provisions the of the Amend- tion” unseemly An clash the ment. between Virginia’s pro- recidivist statute provisions the federal constitution and anyone has vides that who been convict- statute, applied, would thus a as state pun- separate ed three times of offenses By proceeding does, I be avoided. as it by penitentiary in ishable confinement a majority unnecessarily the de- believe is shall be to be in the sentenced ‍​‌‌​​​​‌​‌‌​​‌‌​​‌​‌‌‌‌​‌​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‌​‍confined eighth issue, ciding an amendment void- penitentiary 61- for life. W.Va.Code § ing application the un- a state statute (1966). The to be im- sentence 11-18 and, necessarily reaching short, be- in posed mandatory. is no room There is yond im- the well established bounds “applied for it to and administered be by posed upon judiciary the federal by eye public authority and with an evil self-restraint, comity,

principles and unequal hand,” opportunity an “unjust nor in the wise of discretion the exercise illegal and discriminations be- judicial power. In uses of thereto, addition persons tween in circumstances.” similar not, assuming, I do that which face, statute its The is constitutional on eighth may proper- amendment issue the Supreme and the Court has said twice disagree ly I reached with broth- be statutory requirement that it is. The decision the reasons hereinafter ers’ imposed a be insures that life sentence stated. any application prevents and uniform judge. by

abuse of discretion the trial that of The discretion involved is THE EIGHTH AMENDMENT prosecutor deciding the in whether by majority, As conceded the the West against proceed particular a defendant Virginia habitual offender statute has statute, con- under the and the recidivist by upheld Supreme the Court selectivity in en- scious of some exercise process equal protection due and upheld in statute forcement of the Oyler was Oyler Boles, 448, claims. U.S. Boles, supra, 448, 82 368 U.S. 501, (1962); S.Ct. L.Ed.2d 446 Gra- 501, appears It S.Ct. 7 L.Ed.2d 616, Virginia, ham v. West 224 U.S. deciding majority that the that the is S.Ct. L.Ed. 917 The case-by- judge decide on a state must majority impact seeks the to avoid case basis whether principle these cases on “a con- disproportionate is cededly may applied valid in a statute be nature of the crimes in involved particular way case in as such to vio- prior properly to con- convictions is be provisions.” late constitutional I would determining in the sentence. sidered urge, however, principle this that while precisely does This is what statute certainly applica- no valid one it has permit. By requiring such action tion here. judge nullified the state the statute certainly just ir as ruled unconstitu- principle stated Yick well tional on face. its Hopkins, 356, 373-374, v.Wo U.S. (1886): S.Ct. 30 L.Ed. 220 conceding, Assuming, without constitutionality application of “Though the law itself be fair on its statute the West recidivist impartial appearance, yet, face and properly determined considered and applied if it is and administered agree ease-by-case basis, I do not on public eye authority an evil applied that the unconstitu- statute was unequal hand, practically an so as tionally In deter- instant case. unjust illegal make discrimina- mining dispro- that Hart’s sentence was persons tions between in similar cir- majority cumstances, rights, portionate offenses the to their to his material al., Appellees, points F.2d 149. in 1949 lina et out that the offense was writing appeal from That the district a check on insufficient funds was statutory corpus $50.00, relief to cut-off court’s denial of habeas which is (see 1, Majority Opinion), point prisoner fn. South who Carolina was less, pleas penny had the for one victed to two check been indictment, used count not have been counts each offense could charging making support since his recidivist conviction him with an obscene telephone not have therefor would call in violation of S.C.Code My penitentiary. (Supp.1971). in a been confinement Ann. 16-552.1 Wood § years’ “bad check im- brothers conclude that sentenced a term of five nearly But, prisonment count, very case was trivial.” on each the sentences nearly trivial,” may “very concurrently. applica- not to run Under the $50.00 similarly And ble statute could sen- characterized? have been Wood $50.01 if may may years not to a be so described tenced maximum term of ten $50.01 $1,000.00? $200.00, $500.00, There on each the count. Until South Carolina reasoning. is no end There statute was in to such amended the maxi- point someрlace imprisonment must be and mum term a cut-off for that of- point by perti- fense has fixed the was months. six my view, nent fact that statute. In the Wood, supra, In were confronted we Hart’s in for bad check 1949 was the issue as to whether the sentenc- proper $50.00, more, no rather than has imposed disproportionate es were so to place considering in whether was and the offenses as to constitute cruel stitutionally of- habitual sentenced as an by punishment prohibited the unusual fender. Eighth to the Amendment. We referred recognizes ten-year statutory majority of- the maximum for courts startling,” emphasized have the violence fense as “rather stated element of danger sentencing judge person assessing in- and the to the in was doubtless by gravity offense, states, prior thе fluenced record of an criminal Wood’s larceny “None of which Hart’s offenses included convictions were theft, person. no the violence or and automobile but we found None involved danger disproportionality and no persons of violence toward violation Eighth joined my technically property.” the Amendment. I This true. affirming perjury But in in that case the Hart’s was dur- brothers committed ing corpus the denial of trial of his son on a habeas relief. murder charge, of the one most serious So, in Wood, that a sen- we concluded crimes, accompanied usually cold-blooded by imprisonment tence for five majority violence. The characterizes making telephone call lewd or obscene Hart’s “a situation as moral dilemma: not it еxcessive since was within duty tell choose between sug- by If, limits fixed as statute. family loyalty.” per- truth and jured In his deliberately sentencing gested, judge may have testimony Hart was prior taken into consideration Wood’s attempting justice and to obstruct larceny record convictions for prevent the of his son on a conviction theft, offenses automobile the record charge degree. of murder in the first necessarily of violence were crimes might presented Hart’s counsel concerning and we had information no appealing argument based surrounding com- the circumstances “family loyalty,” place it no has value or the dollar mission the crimes appeal. of this consideration instance. property of the either stolen day

I now advert to a decision this coin, in the panel of the other side handed this same On down majority Wood, strike Appellant, at would case bar the State of South Caro- mandatory imposed down sentence much disturbed when I think of the under the West stat recidivist chaos which result from this deci- any does not for tute but indicate fixed my sion. respect all due With broth- ers, mula or standard guide as a highest which would serve person- for whom have I as when under cir regard, impelled what al agreement. I feel to note dis- cumstances the excessive, a sentence fixed Virginia legislature penalty repeaters or the habitual criminals sepa who have been convicted of three

rate felonies and have thus demonstrat tendency persist

ed a in the commis majority simply sion of crime. The WOOD, Appellant, Lee Jesse finds excessive herе. Is it because “nearly trivial” conviction bad check al., ?2 Is it the convic because et OF SOUTH STATE CAROLINA Appellees. did not vio tions involve crimes of because, wisdom, lence? Is it in their No. 72-1336. legislatures in other states Appeals, United of States Court (cid:127) penalties fixed lesser for recidivists t Fourth Circuit. impris Would a sentence of Argued April 2, 1973. years, specified onment for a term of July Decided given 1973. sentence, rather a life a than felony number of deemed convictions be and, so,

excessive what limits would accepted as How about reasonable?

three convictions for lewd and obscene

telephone pro many How states calls? possible of ten

vide a maximum term years’ imprisonment obscene one arising questions

telephone call? major innumerable; but, me,

are

ity them and to be leaves unanswered case-by-case a basis.

determined on being effectively

Thus, de the statute Virginia state

vitalized and the West duty charged

courts, to follow with the im ‍​‌‌​​​​‌​‌‌​​‌‌​​‌​‌‌‌‌​‌​​‌​‌​​‌‌​‌​​​​​​‌‌‌​‌​‍statutory respect to the law with

position sentences, faced with bewill every recidivism. dilemma in case of I think brothers concede will bearing authority paucity there is Eighth

upon Amendment and severity application to the its definitely

sentences has never very

clusively determined. I am charges? attorneys not true experience practicing Is this other miss the as In our multiple judges, many offenses or, perhaps, reference times trial how breaking types kinds such other come to our attention where- have cases entering, robberies, like? prosecutor an ac- was known possibly appellate court can bad What had issued veritable flood cused surrounding prosecutor the circumstances know of was satisfied checks but every accept plea recorded conviction? and dis- as to one

Case Details

Case Name: Dewey Hart v. Ira M. Coiner, Warden of the West Virginia State Penitentiary

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 13, 1973

Citation: 483 F.2d 136

Docket Number: 71-1885

Court Abbreviation: 4th Cir.