STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
Harry Edgar Farmer, February 22, 2013
Petitioner Below, Petitioner RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 11-1440 (Kanawha County 11-MISC-146)
Evelyn Seifert, Warden, Northern Correctional Facility,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Harry Edgar Farmer, pro se, appeals the April 13, 2011 order of the Circuit
Court of Kanawha County dismissing without prejudice his petition for a writ of habeas corpus in
which he argued that he should be resentenced under West Virginia Code § 61-2-14a, the
kidnaping statute. The respondent warden, by C. Casey Forbes, her attorney, filed a summary
response to which petitioner filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate
Procedure.
On December 9, 1991, petitioner went to the Hardees 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, petitioner, with his gun, demanded that Ms. Farmer and Ms.
Petry get into Ms. Petry’s car. After petitioner had driven the car less than a block, he released Ms.
Petry.
Petitioner then drove Ms. Farmer to a remote cemetery in Boone County. Although the
evidence was conflicting, there was evidence that petitioner threatened to kill himself and his wife.
In an attempt to calm things down, Ms. Farmer told petitioner that she would reconcile with him,
but she needed to return the car to her friend. Petitioner 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 had retired from the Kanawha County Sheriff's Department as a sergeant and was
1
then working as a private investigator, to locate petitioner. Mr. Sutphin located and arrested
petitioner.
Eventually, petitioner was indicted for two counts of kidnapping and one count of
aggravated robbery. The jury found petitioner guilty of one count of kidnapping with a
recommendation of mercy. The jury also found petitioner guilty of joyriding. The Circuit Court of
Kanawha County sentenced petitioner to ninety years for the kidnapping and six months for the
joyriding to run concurrently.
In State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994), this Court affirmed petitioner’s
conviction and sentence. In relation to Mr. Farmer’s sentence, the Court found first that the
findings a judge makes for the purposes for sentencing under the kidnapping statute, West Virginia
Code § 61-2-14a, do not constitute elements of the crime and, therefore, a defendant’s right to a
jury trial is not violated.1 Second in relation to Mr. Farmer’s sentence, this Court found that “the
circuit court’s sentencing is not subject to appellate review since it did not base [petitioner]’s
sentence on some impermissible factor,” citing State v. Goodnight, 169 W.Va. 366, 287 S.E.2d
504 (1982), and noting that the circuit court took into consideration petitioner’s prior convictions.
193 W.Va. at 88, 454 S.E2d at 382. In making this second finding, the Court noted that § 61-2-14a
(at the time) provided for open-ended sentencing in cases like Mr. Farmer’s.2 Explaining that
1
See also Syl. Pt. 2, State v. Haught, 218 W.Va. 462, 624 S.E.2d 899 (2005) (holding that the
West Virginia kidnapping statute “does not provide for the enhancement of a defendant’s sentence
beyond the statutory maximum based on additional facts found by the trial judge in violation of the
constitutional right to a trial by jury as interpreted by the United States Supreme Court in Blakely v.
Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)”), cert. denied, 547 U.S. 1133
(2006).
2
As quoted in Farmer, the version of the statute then in effect provided in pertinent part as
follows:
If any person, by force, threat, duress, fraud or enticement take,
confine, conceal, or decoy, inveigle or entice away, or transport into
or out of this State or within this State, or otherwise kidnap any
other person, for the purpose or with the intent of taking, receiving,
demanding or extorting from such person, or from any other person
or persons, any ransom, money or other thing, or any concession or
advantage of any sort, or for the purpose or with the intent of
shielding or protecting himself or others from bodily harm or of
evading capture or arrest after he or they have committed a crime, he
shall be guilty of a felony, and, upon conviction, shall be punished
by confinement in the penitentiary for life, and he, . . . shall not be
eligible for parole: provided, That the jury may, in their discretion,
recommend mercy, and if such recommendation is added to their
verdict, such person shall be eligible for parole . . . Provided further,
That in all cases where the person against whom the offense is
2
open-ended sentences can be subject to review for proportionality, this Court declined to
undertake such a review because “[petitioner] does not argue that his sentence violates the
proportionality principle of the West Virginia Constitution.” 193 W.Va. at 88 n. 5, 454 S.E2d at
382 n. 5.
In 2000, this Court refused petitioner’s appeal from a July 2, 1999 order of the circuit court
summarily denying a petition for a writ of habeas corpus without a hearing. The circuit court’s
order indicated that petitioner had filed a prior habeas corpus petition in 1998, which was also
summarily denied. On November 22, 2004, petitioner filed an original jurisdiction habeas petition
in this Court alleging that his ninety year sentence was disproportionate and constituted cruel and
unusual punishment. This Court refused petitioner’s petition in an order entered May 26, 2005.
Petitioner filed his instant habeas petition in the circuit court.3 Petitioner argued that he
should be resentenced under West Virginia Code § 61-2-14a. In so arguing, petitioner alluded to
the 1999 version of the kidnapping statute which replaced the indeterminate sentence of not less
than ten years, for when the victim was returned without bodily harm and without any concession
being yielded, with a definite term of ten to thirty years.4 Petitioner also made an application to
have counsel appointed.
committed is returned, or is permitted to return, alive, without
bodily harm having been inflicted upon him, but after ransom,
money or other thing, or any concession or advantage of any sort has
been paid or yielded, the punishment shall be confinement in the
penitentiary for any term of years not less than twenty: And
provided further, That in all cases where the person against whom
the offense is committed is returned, or is permitted to return, alive,
without bodily harm having been inflicted upon him, but without
ransom, money or other thing, or any concession or advantage of
any sort having been paid or yielded, the punishment shall be
confinement in the penitentiary for any term of years not less than
ten.
193 W.Va. at 87 n. 2, 454 S.E.2d at 381 n. 2 (quoting W.Va. Code, 61–2–14a (1965)) (emphasis by
the Court).
3
The instant petition was initially filed in the Circuit Court of Marshall County. It was
subsequently transferred to the Circuit Court of Kanawha County.
4
In 2012, the legislature rewrote West Virginia Code § 61-2-14a, to be effective from June 8,
2012, but did not alter the ten to thirty sentence for when the victim was returned without bodily
harm and without any concession being yielded. See W.Va. Code § 61-2-14a (as amended by 2012
W.Va. Acts c. 90).
3
In an order entered April 13, 2011, the circuit court dismissed petitioner’s instant petition
without prejudice, citing Rule 4(c) of the West Virginia Rules Governing Post-Conviction Habeas
Corpus Proceedings, which provides in pertinent part as follows: “If the petition contains a mere
recitation of grounds without adequate factual support, the court may enter an order dismissing the
petition, without prejudice, with directions that the petition be refiled containing adequate factual
support. The court shall cause the petitioner to be notified of any summary dismissal.”5 As part of
its order, the circuit court directed that “[t]he Clerk of this Court shall serve a copy of this order
upon the petitioner.”
Petitioner perfected his appeal from the circuit court’s dismissal without prejudice of his
habeas petition on July 13, 2011. This Court entered an amended scheduling order on February 24,
2012, directing the respondent warden to file a responsive brief or a summary response within
twenty days of the date of its order.6 The respondent warden filed a summary response on March
9, 2012. Petitioner then filed his reply brief on April 2, 2012.
The following standard of review applies in habeas cases:
In reviewing challenges to the findings and conclusions of the
circuit court in a habeas corpus action, we apply a three-prong
standard of review. We review the final order and the ultimate
disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of
law are subject to a de novo review.
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
Petitioner argues that his sentence for kidnapping should be reduced from ninety years to a
definite term of ten to thirty years consistent with West Virginia Code § 61-2-14a(a)(4) (1999)
which sets forth the sentencing range for kidnapping for when the victim was returned without
bodily harm and without any concession being yielded. The respondent warden argues that
petitioner is not entitled to be resentenced to ten to thirty years because the 1999 version of the
kidnapping statute was not enacted until eight years after the commission of the offense, seven
years after petitioner had been sentenced, and five years after petitioner had finalized his direct
appeal. After careful consideration, this Court concludes that the respondent warden is correct that
petitioner’s claim that he should be resentenced consistent with the 1999 version of the statute
lacks substantial merit.
5
In determining that no hearing was required on the instant petition, the circuit court also cited
Syllabus Point One of Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973) (“A court having
jurisdiction over habeas corpus proceedings may deny a petition for a writ of habeas corpus
without a hearing and without appointing counsel for the petitioner if the petition, exhibits,
affidavits or other documentary evidence filed therewith show to such court's satisfaction that the
petitioner is entitled to no relief.”).
6
The original deadline was December 5, 2011.
4
The record contains support for petitioner’s assertion that he has yet to have a habeas
corpus omnibus hearing. However, the circuit court adequately addressed this by making the
dismissal of petitioner’s instant petition without prejudice pursuant to Rule 4(c), supra. Therefore,
after careful consideration, this Court concludes that the circuit court did not abuse its discretion in
dismissing petitioner’s petition.7
For the foregoing reasons, we find no error in the decision of the Circuit Court of Kanawha
County and affirm its April 13, 2011 order dismissing without prejudice petitioner’s petition for a
writ of habeas corpus.8
Affirmed.
ISSUED: February 22, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
7
Consistent with Rule 4(c), petitioner may file a subsequent petition provided that he has
“adequate factual support” for the claims therein.
8
In addition to their substantive arguments, each of the parties made a procedural argument based
on alleged non-compliance with the Revised Rules of Appellate Procedure. Because the appeal is
resolved on its merits, this Court declines to address those issues.
5