Lewis E. Terry v. Superintendent of Field Unit 9

Fourth Circuit

Lewis E. Terry v. Superintendent of Field Unit 9

454 F.2d 591, 1972 U.S. App. LEXIS 11911

CourtCourt of Appeals for the Fourth Circuit

DecidedJanuary 10, 1972

Docket71-1682

StatusPublished

Cited by3 cases

This text of 454 F.2d 591 (Lewis E. Terry v. Superintendent of Field Unit 9) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Lewis E. Terry v. Superintendent of Field Unit 9, 454 F.2d 591, 1972 U.S. App. LEXIS 11911 (4th Cir. 1972).

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Opinion

MEMORANDUM DECISION.

Lewis E. Terry, a Virginia prisoner, seeks a certificate of probable cause to appeal an order of the district court refusing him habeas corpus relief.

On November 14, 1969, Terry pleaded not guilty to and was convicted of the separate offenses of assault and brandishing a firearm by a judge of the Bot-etourt County Court sitting without a jury. He was sentenced to serve six months in jail and to pay a fine of $500.00 for the brandishing conviction and he was sentenced to serve twelve months in jail and to pay a fine of $500.00 for the assault conviction. His total jail sentence was thus eighteen months. He appealed and was given a trial de novo in the Circuit Court of Botetourt County on January 7, 1970. He pleaded not guilty to the charges, was tried by a jury, and again convicted. He was sentenced by the jury to serve twelve months and to pay a fine of $100.00 for each offense. His total jail sentence was thus increased to two years. The reasons for this increased sentence do not affirmatively appear in the state court records.

Terry’s first claim is based on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce the Supreme Court said that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 395 U.S. at 726, 89 S.Ct. 2081. We agree with the district court’s conclusion that Terry need not exhaust his state court remedies on this claim. Manns v. Allman, 324 F.Supp. 1149 (W.D.Va.1971). For the reasons stated in Levine v. Peyton, 444 F.2d 525 (4th Cir. 1971), however, we disagree with the district court’s second conclusion that Pearce does not apply to a jury sentencing. Therefore, in light of Levine and in light of Wood v. Ross, 434 F.2d 297 (4th Cir. 1970), which applied Pearce to a trial de novo, we hold that Terry is entitled to have his increased sentence vacated.

It is therefore ordered that six months of Terry’s twelve month sentence for brandishing a firearm be vacated and the respondent is directed to adjust his release date accordingly.

The district court’s decision dismissing Terry’s claim of ineffective assistance of counsel for failure to exhaust state court remedies is affirmed.

Accordingly, for the reasons stated above, a certificate of probable cause to appeal is granted and the judgment of the district court affirmed in part and reversed in part.

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MEMORANDUM DECISION.

Lewis E. Terry, a Virginia prisoner, seeks a certificate of probable cause to appeal an order of the district court refusing him habeas corpus relief.

On November 14, 1969, Terry pleaded not guilty to and was convicted of the separate offenses of assault and brandishing a firearm by a judge of the Bot-etourt County Court sitting without a jury. He was sentenced to serve six months in jail and to pay a fine of $500.00 for the brandishing conviction and he was sentenced to serve twelve months in jail and to pay a fine of $500.00 for the assault conviction. His total jail sentence was thus eighteen months. He appealed and was given a trial de novo in the Circuit Court of Botetourt County on January 7, 1970. He pleaded not guilty to the charges, was tried by a jury, and again convicted. He was sentenced by the jury to serve twelve months and to pay a fine of $100.00 for each offense. His total jail sentence was thus increased to two years. The reasons for this increased sentence do not affirmatively appear in the state court records.

Terry’s first claim is based on North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). In Pearce the Supreme Court said that “whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear.” 395 U.S. at 726, 89 S.Ct. 2081. We agree with the district court’s conclusion that Terry need not exhaust his state court remedies on this claim. Manns v. Allman, 324 F.Supp. 1149 (W.D.Va.1971). For the reasons stated in Levine v. Peyton, 444 F.2d 525 (4th Cir. 1971), however, we disagree with the district court’s second conclusion that Pearce does not apply to a jury sentencing. Therefore, in light of Levine and in light of Wood v. Ross, 434 F.2d 297 (4th Cir. 1970), which applied Pearce to a trial de novo, we hold that Terry is entitled to have his increased sentence vacated.

It is therefore ordered that six months of Terry’s twelve month sentence for brandishing a firearm be vacated and the respondent is directed to adjust his release date accordingly.

The district court’s decision dismissing Terry’s claim of ineffective assistance of counsel for failure to exhaust state court remedies is affirmed.

Accordingly, for the reasons stated above, a certificate of probable cause to appeal is granted and the judgment of the district court affirmed in part and reversed in part.

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454 F.2d 591, 1972 U.S. App. LEXIS 11911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-e-terry-v-superintendent-of-field-unit-9-ca4-1972.

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