CRAVEN, Circuit Judge:
Appellant Dewey Hart is presently confined in the West Virginia State Penitentiary under judgment and sentence that he there be imprisoned for the rest of his natural life for having violated West Virginia's recidivist statute. The life sentence, mandatory under West Virginia law, rests upon three prior convictions: (1) writing a check on insufficient funds for $50; (2) transporting across state lines forged checks in the amount of $140; and (3) perjury. Having unavailingly sought relief in the state courts, Hart thereupon prosecuted his petition for writ of habeas corpus in the United States District Court. He appeals the refusal of the district judge to grant relief. We reverse and remand with instructions. Our decision rests upon the conclusion that the West Virginia recidivist statute's mandatory life sentence is so disproportionate to the seriousness of the underlying offenses, and so grossly excessive that it amounts to cruel and unusual punishment forbidden by the eighth amendment.
In 1968 Hart was convicted of perjury in a West Virginia court as a result of testimony he gave at the murder trial of his son. Perjury carries a sentence in West Virginia of not less than one nor more than ten years. W.Va.Code § 61-5-3 (1966). Prior to sentencing on the perjury conviction, however, the state filed an information charging Hart with being an habitual offender. West Virginia's recidivist statute requires a life sentence for anyone who has been convicted three separate times of offenses "punishable by confinement in a penitentiary." W.Va.Code § 61-11-18 (1966).
The recidivist charge against Hart was based upon the perjury conviction and two prior convictions—one in 1949 for writing a check on insufficient funds for $50,
Initially we note that we are presented with a conviction and sentence obtained pursuant to a state statutory scheme which is valid on its face. Indeed, the Supreme Court has upheld this West Virginia habitual offender statute against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). But we do not agree with the state's contention that these decisions foreclose Hart's present eighth amendment challenge. Hart does not attack the statute itself. He does not urge that life imprisonment per se is either cruel or unusual. Nor does he urge that the statutory scheme has been discriminatorily applied. The issue he does raise is whether the recidivist mandatory life sentence in this case is so excessive and disproportionate to the underlying offenses as to constitute cruel and unusual punishment. We are not precluded from deciding this issue, we think, by the fact that the West Virginia recidivist scheme is constitutional as written, for a concededly valid statute may be applied in a particular case in such a way as to violate various constitutional provisions. Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963) (speech and assembly); Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (equal protection). See Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (speech and assembly).
"That the punishment is not severe, `in the abstract,' is irrelevant; `[e]ven one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.'" Furman v. Georgia, 408 U.S. 238, 273, 92 S.Ct. 2726, 2744, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring).
We think it clear that to view the West Virginia recidivist statute with its mandatory life sentence as facially constitutional is not the end of the inquiry.
The doctrine that an excessive sentence may be invalid solely because of disproportionality is not a new one. Mr. Justice Field suggested in 1892 that the eighth amendment's prohibition
In Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 549, 54 L.Ed. 793 (1910), the Court adopted Mr. Justice Field's view of the eighth amendment when it stated that it is now "a precept of justice that punishment for crime should be graduated and proportioned to offense." In Weems, the Court noticed, with apparent approval, that the highest state court of Massachusetts had previously conceded the possibility that "punishment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment." Weems, supra, at 368, 30 S.Ct. at 549; accord, Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970).
In his concurring opinion in Furman, Mr. Justice Douglas finds the idea of disproportionality as old as the Magna Carta: "A free man shall not be amerced for a trivial offence, except in accordance with the degree of the offence; and for a serious offence he shall be amerced according to its gravity . . . ." Furman, supra, 408 U.S. at 243, 92 S.Ct. at 2729.
While it seems settled that punishment must be proportioned to the offense committed, application of this principle to a particular fact situation is not without difficulty.
Although the standard applicable under the eighth amendment is one "not susceptible to precise definition,"
The initial element to be analyzed in determining whether the punishment is constitutionally disproportionate is the nature of the offense itself. Furman, supra, at 325, 92 S.Ct. 2726 (Marshall, J., concurring). Hart's first conviction was for writing a bad check in 1949, and the second was for transporting forged checks six years later. His third conviction was more serious—committing perjury during the murder trial of his son. But even there Hart faced a moral dilemma: to choose between his duty to tell the truth and family loyalty.
In assessing the nature and gravity of an offense, courts have repeatedly emphasized the element of violence and danger to the person. E. g., Snider v. Peyton, 356 F.2d 626, 627 (4th Cir. 1966); see Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from a
Another factor to be examined is the legislative purpose behind the punishment.
Such an argument proves too much. Assuming the validity of the deterrent theory, and there is room for doubt,
Mr. Justice Brennan has observed: "If there is a significantly less severe punishment to achieve the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore excessive." [Citations omitted]. Furman, supra, at 279, 92 S.Ct. at 2747. We think that a sentence of life imprisonment, the most severe punishment available under West Virginia law, is unnecessary to accomplish the legislative purpose to protect society from an individual who has committed three wholly nonviolent crimes over a period of twenty years. Nor, except on the theory that more is better, is it necessary to deter others. Ten years' possible imprisonment for perjury is calculated to make one stop and think—whether or not it does.
A third objective factor is comparison of Hart's punishment with how he would have been punished in other jurisdictions.
If we assume these other states treat a $50 bad check case as a felony, which is doubtful, it is theoretically possible that Hart could have been exposed to the imposition of a life sentence in 13 states besides West Virginia. But as a practical matter, we think it would certainly not occur in those ten states providing for judicial evaluation of the underlying offenses and the offender. Had the sentencing judge here been able to exercise discretion, it is hard to believe that he would have given Hart as much time to serve as he might give one convicted of three offenses of second-degree murder. Yet, Hart got the maximum without regard to the relatively petty nature of the underlying convictions.
A comparison of punishment available in the same jurisdiction for other offenses is likewise a factor. Weems, supra, 217 U.S. at 381, 30 S.Ct. 544, 54 L.Ed. 793. West Virginia provides for a mandatory life sentence for only three other crimes—first-degree murder, W.Va.Code § 61-2-2 (1966); rape, W.Va.Code § 61-2-15 (1966); and kidnapping, W.Va.Code § 61-2-14a (1966).
Consideration of the penalties provided for grave crimes of violence in West Virginia reveals the irrationally disparate treatment visited upon Hart: second-degree murder, 5-18 years, W. Va.Code § 61-2-3 (1966); robbery, not less than 10 years, W.Va.Code § 61-2-12 (1966); malicious assault with intent to kill, 2-10 years, W.Va.Code 61-2-9 (1966); administering poison with intent to kill, 3-18 years, W.Va.Code § 61-2-7 (1966); first-degree arson, 2-20 years, W.Va.Code § 61-3-1 (1966); and extortion by threats of violence, and manslaughter, 1-5 years, W.Va.Code §§ 61-2-4, 61-2-13 (1966).
The repetitive commission of all of these offenses, of course, could result in punishment under the recidivist scheme. Yet, after a second commission of these extremely violent and dangerous crimes, only five years could be added to the maximum sentence, W.Va.Code § 61-11-18 (1966). Only for the third offense
After analyzing what we believe to be the relevant criteria under the eighth amendment, we conclude that the sentence imposed upon Hart is constitutionally excessive and wholly disproportionate to the nature of the offenses he committed, and not necessary to achieve any legitimate legislative purpose.
We therefore reverse and remand with instructions that the writ of habeas corpus issue unless within a reasonable time the state chooses to resentence Hart solely on the basis of his perjury conviction.
Reversed and remanded with instructions.
HABITUAL OFFENDER PROVISIONS IF MOST RECENT CONVICTION IS PERJURY
State Citations Minimum Number of Offenses Maximum SentenceAlabama No habitual offender statute Alaska § 12.55.050 2d felony Double Maximum 3d felony 4 times Maximum 4th felony Life, discretionary Arizona § 13-1649 2d prison offense Not less than 10 years Arkansas § 43-2328 2d prison offense Maximum 3d prison offense Maximum 4th prison offense 1.5 times Maximum California P.C., § 644 Does not apply if perjury is the most recent offense, though perjury can be a prior Colorado § 39-13-1 3d felony Triple maximum 4th felony Life, mandatory Connecticut § 53a-40 2d felony 10 years Delaware tit. 11, § 3911(a) 4th felony Life, discretionary Florida § 775.084 2d felony (w/15 years) 30 years Georgia § 27-2511 2d prison offense Mandatory maximum 4th felony Mandatory maximum without parole Hawaii No habitual offender statute Idaho § 19-2514 3d felony 5 years to Life Illinois No habitual offender statute Indiana § 9-2207 3d felony Mandatory life Iowa § 747.5 3d jail term of at 25 years least 3 years Kansas § 21-4504 2d felony Double maximum 3d felony Life, discretionary Kentucky § 431.190 2d felony Not less than double 1st sentence 3d felony Life, mandatory Louisiana § 15-529.1 2d and 3d felonies Double maximum 4th felony Life, discretionary Maine § 15-1742 2d prison offense Life, discretionary Maryland No habitual offender statute Massachusetts § 279-25 3d jail term of at Maximum, mandatory least 3 years Michigan § 28.1084 4th felony Life, discretionary Minnesota § 609.155 2d felony Maximum times number of priors, up to 40 years
Mississippi No habitual offender statute Missouri § 556.280 2d prison offense Maximum, discretionary Montana § 94-4713 2d prison offense Not less than 10 years Nebraska § 29-2221 3d offense for which 20 years prison time served Nevada § 207.010 3d felony 20 years 4th felony Life, mandatory New Hampshire § 591:1 3d felony 15 years § 651:6 3d offense served 30 years in prison New Jersey § 2A:85-12 4th high misdemeanor Life, discretionary New Mexico § 40A-29-5 2d felony Double maximum 3d felony Triple maximum 4th felony Life, mandatory New York P.C. § 70.10 3d felony Life, discretionary North Carolina §§ 14-7.1-14-7.6 4th felony Life, discretionary North Dakota §§ 12-06-18- 12-06-21 2d felony 10 years 3d felony Double maximum 4th felony Life, discretionary Ohio § 2961.11 3d listed offense, including Mandatory maximum perjury and forgery § 2961.12 4th such offense Life, mandatory Oklahoma tit. 21, § 51 2d prison offense Minimum 10 years Oregon Unavailable Pennsylvania tit. 18, § 5108 2d and 3d listed offenses, Double maximum (including perjury) within 5 years 4th offense Life, discretionary Rhode Island § 12-19-21 3d prison offense Additional 25 years South Dakota § 22-7-1 2d felony Double penalty 4th felony Life, discretionary Tennessee § 40-2801 3d felony (two must be Life, mandatory listed violent felonies) Texas P.C. Art. 62 2d felony Maximum P.C. Art. 63 3d felony Life, mandatory Utah 76-1-18 3d felony Not less than 15 years Vermont 13, §§ 11 and 1 4th felony Life, discretionary Virginia 53-296 2d prison offense Life, discretionary Washington 9.92.020 2d felony Life, discretionary 3d felony Life, mandatory Wisconsin 939.62 2d felony within 5 years Additional 6 years Wyoming 6-9 3d felony 50 years 4th felony Life, Mandatory
One of the prior convictions on which Hart's habitual offender sentence was based was a conviction on December 28, 1949, for issuing a check against insufficient funds. He was convicted upon his plea of guilty. I conclude that Hart did not have the effective assistance of counsel in connection with the entry of his guilty plea, that his 1949 conviction was invalid and that it should have been rejected as a "conviction" at his trial as a recidivist. I therefore conclude that the district court erred in denying habeas relief and on that ground alone I would reach the end result of reversal. I believe, however, that the course my brothers have chosen to follow, in basing their decision on the cruel and unusual punishment provisions of the Eighth Amendment, is not only unnecessary but also unsupportable, and I do not hesitate to indicate my disagreement therewith.
THE 1949 CONVICTION
Hart was represented in 1949 by inexperienced counsel who was appointed for him and who had been admitted to practice in March 1949. The first time Hart met his court-appointed attorney was in the courtroom on the day he entered his guilty plea. Counsel testified at the evidentiary hearing below as a witness for the State but he did not even faintly recall having represented Hart in 1949.
Hart testified that after the appointment of counsel he and the attorney withdrew to discuss the pending charge. The attorney told him that if he did not plead guilty the prosecuting attorney would proceed against him as a second offender and thereby add five years to his sentence, but that if he did plead guilty the prosecutor would disregard any prior felony conviction.
It is settled law in this circuit that late appointment of counsel is so inherently prejudicial as to constitute a prima facie case of denial of effective assistance of counsel. Stokes v. Peyton, 437 F.2d 131 (4 Cir. 1970); Fields v. Peyton, 375 F.2d 624 (4 Cir. 1967); Twiford v. Peyton, 372 F.2d 670 (4 Cir. 1967); Martin v. Virginia, 365 F.2d 549 (4 Cir. 1966); Jones v. Cunningham, 313 F.2d 347 (4 Cir. 1963). The burden is upon the State to introduce satisfactory
Hart testified that he told his attorney, "I was guilty for they had my name on the check." Assuming, however, as appears likely, that Hart was charged with fraudulently issuing a check upon insufficient funds under Section 61-3-39 of the West Virginia Code, such offense is far from established by the fact, standing alone, that one's name appears on the check. The elements of the offense are several and include:
It thus appears that Hart "admitted his guilt" only as to the first element listed above; and the evidence indicates that his appointed counsel made no attempt to explain the additional elements to Hart or to investigate them in any manner. "Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist." Jones v. Cunningham, supra, 313 F.2d 347, 353.
An additional responsibility of his attorney, since Hart was apparently entering his guilty plea to avoid prosecution as a recidivist, was to investigate the validity of the prior conviction upon which the recidivist charge would have been based. Again, it would appear from the evidence that this responsibility was not met. I believe the following language is appropriate in this case.
The majority's conclusion that Hart's guilty plea was "entered as an intelligent trial tactic, [and] is thus insulated from attack" is not persuasive. To characterize the "trial tactic" as "intelligent" is to beg the question here presented. If in fact Hart was not effectively counseled and represented his guilty plead was not "intelligent."
The violation of Hart's constitutional rights at the 1949 proceeding appears obvious. If the decision in this case were based thereon, it would be unnecessary
THE EIGHTH AMENDMENT
As conceded by the majority, the West Virginia habitual offender statute has been upheld by the Supreme Court against due process and equal protection claims. Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). The majority seeks to avoid the impact of these cases on the principle that "a concededly valid statute may be applied in a particular case in such a way as to violate constitutional provisions." I would urge, however, that while this principle is certainly a valid one it has no application here.
The principle is well stated in Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886):
West Virginia's recidivist statute provides that anyone who has been convicted three separate times of offenses punishable by confinement in a penitentiary shall be sentenced to be confined in the penitentiary for life. W.Va.Code § 61-11-18 (1966). The sentence to be imposed is mandatory. There is no room for it to be "applied and administered by public authority with an evil eye and an unequal hand," nor opportunity for "unjust and illegal discriminations between persons in similar circumstances." The statute is constitutional on its face, and twice the Supreme Court has said that it is. The statutory requirement that a life sentence be imposed insures uniform application and prevents any abuse of discretion by the trial judge. The only discretion involved is that of the prosecutor in deciding whether to proceed against a particular defendant under the recidivist statute, and the conscious exercise of some selectivity in enforcement of the statute was upheld in Oyler v. Boles, supra, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446. It appears that the majority is deciding that the state judge must decide on a case-by-case basis whether the mandatory life sentence is disproportionate and that the nature of the crimes involved in the prior convictions is properly to be considered in determining the sentence. This is precisely what the statute does not permit. By requiring such action by the state judge the statute is nullified just as certainly as if ruled unconstitutional on its face.
Assuming, without conceding, that the constitutionality of the application of the West Virginia recidivist statute may properly be considered and determined on a case-by-case basis, I do not agree that the statute was applied unconstitutionally in the instant case. In determining that Hart's sentence was disproportionate to his offenses the majority
The majority recognizes that courts have emphasized the element of violence and danger to the person in assessing the gravity of an offense, and states, "None of Hart's offenses were against the person. None involved violence or danger of violence toward persons or property." This is technically true. But Hart's perjury was committed during the trial of his son on a murder charge, one of the most serious and cold-blooded crimes, usually accompanied by violence. The majority characterizes Hart's situation as "a moral dilemma: to choose between his duty to tell the truth and family loyalty." In his perjured testimony Hart was deliberately attempting to obstruct justice and to prevent the conviction of his son on a charge of murder in the first degree. Hart's counsel might have presented an appealing argument to the jury based on "family loyalty," but it has no place in the consideration of this appeal.
I now advert to a decision this day handed down by this same panel in Wood, Appellant, v. State of South Carolina et al., Appellees, 483 F.2d 149. That appeal was from the district court's denial of habeas corpus relief to a South Carolina prisoner who was convicted on his pleas of guilty to two counts of an indictment, each count charging him with making an obscene telephone call in violation of S.C.Code Ann. § 16-552.1 (Supp.1971). Wood was sentenced to a term of five years' imprisonment on each count, the sentences to run concurrently. Under the applicable statute Wood could have been sentenced to a maximum term of ten years on each count. Until the South Carolina statute was amended in 1967, the maximum term of imprisonment for that offense was six months.
In Wood, supra, we were confronted with the issue as to whether the sentences imposed were so disproportionate to the offenses as to constitute cruel and unusual punishment prohibited by the Eighth Amendment. We referred to the ten-year maximum for the statutory offense as "rather startling," stated that the sentencing judge was doubtless influenced by Wood's prior criminal record which included convictions for larceny and automobile theft, but we found no disproportionality and no violation of the Eighth Amendment. I joined my brothers in affirming in that case the denial of habeas corpus relief.
So, in Wood, we concluded that a sentence of imprisonment for five years for making a lewd or obscene telephone call was not excessive since it was within the limits fixed by the statute. If, as suggested, the sentencing judge may have taken into consideration Wood's prior record of convictions for larceny and automobile theft, the record offenses were not necessarily crimes of violence and we had no information concerning the circumstances surrounding the commission of the crimes or the dollar value of the property stolen in either instance.
On the other side of the coin, in the case at bar the majority would strike
I think my brothers will concede that there is a paucity of authority bearing upon the Eighth Amendment and that its application to the severity of prison sentences has never definitely and conclusively been determined. I am very much disturbed when I think of the chaos which may result from this decision. With all due respect to my brothers, for whom I have the highest personal regard, I feel impelled to note my disagreement.
Hart contends that his 1949 conviction was illegally obtained because (1) he was denied effective assistance of counsel in that counsel was not appointed until the day he entered his guilty plea, and (2) his guilty plea was unduly coerced. There being no record of the 1949 proceeding, a full hearing on both contentions was conducted by the district judge, who denied relief.
Late appointment of counsel raises a presumption that the defendant was denied effective assistance of counsel. Stokes v. Peyton, 437 F.2d 131, 136 (4th Cir. 1970); Twiford v. Peyton, 372 F.2d 670, 673 (4th Cir. 1967). Here, however, we agree with the district judge's findings that the state effectively rebutted this presumption, Turner v. Maryland, 318 F.2d 852, 854 (4th Cir. 1963), and that Hart's guilty plea was entered as a result of a valid plea bargain, thus insulating it from collateral attack. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
Hart testified that after counsel was appointed, the proceeding was adjourned and he was given an opportunity to discuss the pending charge with his attorney. He further testified that he admitted his guilt to his attorney, who in turn advised him that he "didn't have to plead guilty and could have a jury trial." We believe the record fully supports the district judge's denial of relief, and
Turner, supra, 318 F.2d at 854.
There is also ample evidence in the record that Hart's plea of guilty was entered as the result of a plea bargain. In exchange for the guilty plea, the prosecutor agreed not to charge Hart with being an habitual offender, as he could properly have done on the basis of an earlier Indiana bad check conviction. A conviction as a recidivist would have resulted in an additional five-year sentence being imposed. We think Hart's guilty plea, entered as an intelligent trial tactic, is thus insulated from attack. As the Supreme Court has stated in upholding the validity of a plea,
Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).
It is not clear from information furnished us by counsel whether Hart's bad check offense would have triggered the recidivist law of Indiana, Kentucky, or Texas.