Ash v. Twyman
| Decision Date | 13 December 1984 |
| Docket Number | No. 16287,16287 |
| Citation | 324 S.E.2d 138,174 W.Va. 177 |
| Parties | Timothy E. ASH v. Hon. Muriel L. TWYMAN, etc., et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
"In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. pt. 1, Hinkle v. Black, W.Va., 262 S.E.2d 744 (1979).
Kenneth P. Simons, II, Simons & Simons, Fairmont, for petitioner.
This action is before this Court upon the petition of Timothy E. Ash in which he seeks a writ of prohibition be directed against Muriel L. Twyman, Magistrate of Marion County, West Virginia and Charles E. Anderson, Prosecuting Attorney of Marion County. The petitioner seeks to prevent the prosecution of his most recent charge of driving while under the influence of intoxicants as a second offense. This Court has before it only the petition for relief and attached exhibits.
The petition for relief alleges that in August, 1983, the petitioner entered a plea of guilty before a Marion County magistrate to his first charge of driving while under the influence of intoxicants. In accordance with W.Va.Code, 17C-5-2(d)(2) [1983], 1 and W.Va.Code, 17C-5-2(m) [1983], 2 the petitioner was sentenced to a mandatory 24 hours in the county jail and a $100 fine.
The petition further asserts that on February 26, 1984, the petitioner was arrested and charged with his second offense of driving while under the influence of intoxicants. If convicted of this violation as a second offense the petitioner faces a mandatory sentence of six months in the county jail. W.Va.Code, 17C-5-2(h) [1983]. 3
On March 15, 1984, the petitioner sought a writ of prohibition from the Circuit Court of Marion County to prevent the prosecution of his most recent arrest as a second offense under W.Va.Code, 17C-5-2(h) [1983]. See Stalnaker v. Roberts, W.Va., 287 S.E.2d 166 (1981). Although the petition for relief in the circuit court is not before us, the petitioner apparently argued, as he does before this Court, that his prosecution for the latest arrest as a second offense should be prohibited because prior to his entering of the guilty plea for the first offense he was not properly advised of his right to counsel, nor did he knowingly and intelligently waive his right to such counsel, nor was he properly informed of the consequences of his guilty plea with respect to the enhanced sentence for subsequent convictions of the same offense. After a hearing upon the petitioner's arguments, the circuit court, in an order entered March 23, 1984, denied the petition and, without findings of fact or conclusions of law, refused to issue a rule to show cause. The petition further asserts that there was no testimony taken during the hearing before the circuit court.
In support of his assertions before this Court, the petitioner has attached various exhibits to the petition for relief. The first is a certified copy of a form from the Marion County Magistrate Court detailing the particulars of the petitioner's first conviction including his plea of guilty and the sentence. The second exhibit is a certified copy of a form by which the petitioner was informed of his constitutional rights after his first arrest. This form, dated August 14, 1983, contains the signature of the petitioner in all designated spaces, including the space where the petitioner was supposedly informed of his right to counsel, however, there are no check marks in any of the three boxes in which a defendant may acknowledge the waiver of the right to counsel, request counsel be appointed, or waive appointed counsel because counsel has already been retained. The third exhibit is a certified copy of the warrant issued for the petitioner's arrest for the second charge of driving while under the influence of intoxicants, and the fourth exhibit is a certified copy of the order in which the circuit court denied the petitioner's petition for a writ of prohibition.
The threshold issue before this Court is whether a writ of prohibition from this Court is the proper remedy. In syllabus point 1 of Hinkle v. Black, W.Va., 262 S.E.2d 744 (1979), we held as follows:
In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.
See also syl. pt. 3, Criss v. Salvation Army Residences, W.Va., 319 S.E.2d 403 (1984); syl. pt. 1, State ex rel. Strickland v. Daniels, W.Va., 318 S.E.2d 627 (1984); syl., State ex rel. Oldaker v. Fury, W.Va., 317 S.E.2d 513 (1984); syl. pt. 1, Naum v. Halbritter, W.Va., 309 S.E.2d 109 (1983). For reasons discussed below we hold that prohibition is not the proper remedy under these circumstances.
It is clear that by virtue of his 24-hour imprisonment in the county jail the petitioner had an undeniable right to counsel during his first conviction for driving while under the influence of intoxicants under W.Va.Code, 17C-5-2(d) [1983]. "West Virginia Constitution, Article III Section 14, guarantees that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." Syl. pt. 1, State v. Blosser, 158 W.Va. 164, 207 S.E.2d 186 (1974); see also Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); syl. pt. 1, Bullett v. Staggs, 162 W.Va. 199, 250 S.E.2d 38 (1978).
With respect to whether such an uncounselled prior conviction may be used to enhance the penalty of a subsequent conviction for the same offense, we held in syllabus point 2 of State ex rel. Widmyer v. Boles, 150 W.Va. 109, 144 S.E.2d 322 (1965):
The denial of the fundamental right of a defendant to the assistance of counsel in a criminal proceeding applies to and invalidates any prior conviction of an offense within the meaning of a recidivist statute, and such conviction and any sentence of imprisonment imposed upon it, being null and void because of such denial, can not justify or support the imposition of any additional imprisonment under such statute.
See also Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169, reh'g denied, 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980).
The important issues for proper resolution of the petitioner's case are therefore (1) whether the petitioner was, in fact, not represented by counsel during his first conviction of driving while under the influence of intoxicants, and (2) if the petitioner was not represented by counsel, whether he knowingly and intelligently waived his constitutional right to such counsel. See syl. pts. 1 and 2, State v. Blosser, supra; syl. pt. 1, State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974); syl. pt. 5, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964).
Assuming the truth of the petitioner's assertion that he was not represented by counsel during the entering of his guilty plea to his first arrest for driving under the influence, we must determine whether the petitioner validly waived his right to counsel. In this regard, we held in syllabus point 1 of State ex rel. Widmyer v. Boles, supra:
The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of...
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