Blowe v. Peyton

• Decision Date: 12 June 1967
• Citation: 155 S.E.2d 351,208 Va. 68
• Parties: Ronald Lee BLOWE v. C. C. PEYTON, Superintendent, etc.
• Court: Virginia Supreme Court

Page 351

155 S.E.2d 351

208 Va. 68

Ronald Lee BLOWE v. C. C. PEYTON, Superintendent, etc.

Supreme Court of Appeals of Virginia.

June 12, 1967.

W. Leigh Ansell, Norfolk, for plaintiff in error.

Reno S. Harp, III, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

SPRATLEY, Justice.

At its August term, 1955, the grand jury in the Corporation Court of the City of Norfolk, Part Two, returned an indictment containing two counts charging Blowe with robbery by force and violence. Count One charged that Blowe 'on the 28th day of June in the year 1955, in the said City of Norfolk on and upon one Austin Wormley, then and there being, feloniously did make an assault, and by partial strangulation and suffocation and by striking and beating, and by other violence to the person of the said Austin Wormley, him, the said Austin Wormley, in bodily fear feloniously did put, and, to-wit, $15.67 of United States Currency of the value of, to-wit, $15.67 of the goods, chattels and moneys of the said Austin Wormley, from the person and against the will of the said Austin Wormley, then and there feloniously and violently did steal, take and carry away, * * *.' The second count alleged the same offense.

Trial on the indictment was had on August 18, 1955. The judgment rendered on that day recited:

'Ronald L. Blowe, who stands indicted for Robbery, was this day led to the bar in the custody of the Jailor of this Court, and came as well the Attorney for the Commonwealth, and the Attorney for the defendant, said attorney having been appointed for him by the Court at the request of the said defendant, due to his inability to secure counsel of his own choosing, all of which is designated in writing, signed by the defendant and filed herewith and made a part of the record, and upon being arraigned, and after being advised by counsel, the said defendant plead not guilty to the said indictment, * * * (a jury was selected and sworn without exception) and at the conclusion of the Commonwealth's evidence, thereupon the defendant, by counsel, moved the Court that he be permitted to withdraw his plea of not guilty to the said indictment, and enter a plea of guilty to Grand Larceny, as charged in the said indictment, which motion, being fully heard and determined by the Court, is sustained, whereupon the Court declared a mistrial, and John F. Small, Jr., one of the jurors, was withdrawn, and the other jurors were discharged from further consideration of the case. Whereupon the defendant, upon again being arraigned, and after being advised by counsel, tendered in person his plea of guilty to Grand Larceny, as charged in the said indictment, and with the concurrence of the Attorney for the Commonwealth, and the Attorney for the defendant, and of the Court, entered of record, the said plea was accepted and the whole matter of law and fact was heard and determined by the Court, without the intervention of a jury, and having heard the evidence and argument of counsel, it is considered by the Court that the said defendant is guilty of Grand Larceny, as charged in the said indictment, and that his punishment be fixed at confinement in the Penitentiary for the term of Two Years. * * *'

No exception was taken to the judgment and no appeal was noted or taken.

Blowe completed his service of the above sentence on January 28, 1957.

Nine years and eight months after the imposition of the sentence, Blowe, In propria persona, filed on April 16, 1965, a writing entitled 'Petition For Writ of Error Coram Vobis.' Virginia Code, 1950, § 8--485. He alleged that the above judgment was void upon the grounds: (1) that he could not have been convicted of grand larceny under the indictment upon which he was tried; (2) that he did not have the effective assistance of legal counsel, because counsel was appointed on the 'Same Day of Trial,' and, therefore, was 'without adequate time to prepare a proper defense, in law, to the charge of larceny;' (3) that he was denied a fair and impartial trial; and (4) denied a 'Preliminary Examination at time of Trial.'

On June 11, 1965, the trial court appointed W. Leigh Ansell to represent Blowe in this proceeding. Leave was given counsel 'to file an amended petition, according to his discretion, if he deemed it necessary,' and to employ a court reporter to take down in writing the proceedings at the hearing of the petition.

On July 28, 1965, C. C. Peyton, respondent, Superintendent of the Virginia State Penitentiary, filed his answer praying that 'the petition for a writ of Habeas corpus' be dismissed. He said that he was detaining Blowe 'pursuant to a judgment of the Corporation Court of the City of Norfolk, of March 23, 1956, wherein the petitioner was sentenced to serve a term of five (5) years, having been convicted of Grand Larceny on Indictment No. 2' entered on the above date; and that Blowe was not detained pursuant to the sentence imposed on August 18th, 1955, the sentence which he attacked.

No amended petition was filed. A court reporter was employed, and on October 7, 1965, agreeable to all parties, the case came on to be heard on the pleadings, the evidence presented, and exhibits filed.

At the outset of the hearing, there was a discussion as to whether the petition was for a writ of Habeas corpus or for a writ of error Coram vobis. Counsel for Blowe declared that it 'is not a petition for Habeas corpus, it is a petition for a writ of error Coram vobis, which--and I will say this--I don't believe it makes any difference whether it is Coram vobis or Habeas corpus.' He agreed that Blowe was not being detained by virtue of the sentence imposed on August 18, 1955, and was not serving a recidivous sentence. He argued, however, 'that still subsequent convictions have penalties,' and make 'a difference to him (Blowe) for the future,' and, therefore, Blowe was entitled to proceed by Coram vobis under the broadened concepts of that writ.

A further discussion of the law and evidence ensued. Thereupon, counsel for Blowe said: 'I'm willing to stipulate as to the records which I have filed with the Answer (sic), which do not necessarily mention any testimony, and I prefer to have the Petitioner on the stand, and to cross-examine those witnesses that the Respondent has subpoenaed.'

Thereupon, Stewart J. Melton, Director, Bureau of Records, Virginia State Penitentiary, appearing out of order, on behalf of Peyton, took the witness stand and, after being sworn, testified that:

According to the prison records, Blowe was convicted on July 21, 1953, in the Corporation Court of the City of Norfolk, Part Two, and sentenced to three years for statutory burglary. He completed that sentence on April 9, 1955. He was next convicted on August 18, 1955, in the same court of grand larceny, and sentenced to serve two years in the penitentiary, the sentence under attack.

On November 16, 1955, a sentence of one year was imposed upon Blowe as a recidivist. This sentence was completed on September 28, 1957.

On March 23, 1956, he was tried and convicted in the Corporation Court of the City of Norfolk, Part Two, on three indictments. On Indictment No. 1 for robbery, he was sentenced to ten years. This term expired July 8, 1964. On Indictment No. 2 for grand larceny, he was sentenced to five years, which sentence will expire on November 8, 1967. On the third indictment for possession of burglarious tools, the sentence was for five years, to run concurrently with the sentence imposed under Indictment No. 2, and will expire on November 8, 1967.

On May 16, 1956, he received a sentence of one year for escape. This sentence will expire July 8, 1968. On July 18, 1956, he was given a ten-year term as a recidivist. This sentence was declared null and void on May 22, 1963, and on the same day, he was retried and received a sentence of ten years, five years of which are to be suspended during good behavior. With anticipated good behavior, the latter term will expire on November 8, 1971.

No other testimony was presented or offered to be presented.

At the conclusion of Melton's testimony, a further discussion ensued between counsel for the parties and the court as to the character of the proceeding. The court indicated that it would treat it as for Habeas corpus, and would deny the writ in view of the fact that it lies only to attack the validity of a prisoner's immediate detention. Counsel for petitioner then said that: '(T)he Petition itself, as filed by the Petitioner here, is a Coram Vobis Petition, and I believe that I can show the Court now that we still should carry on here today under Coram Vobis, and I'd like to present my argument on that.' The court replied: 'Go ahead, sir, and do just that.'

When asked by the court: 'What error do you intend to point out, that occurred at the trial? You cannot attack history, sir,' counsel replied: 'We figure we can attack the inadequacy of counsel for the Petitioner, and in several errors listed here, Your Honor, and if you want to go into them now, I feel that I can--.' The court said: 'I'm ready, six.'

Petitioner's counsel continued to argue that Coram vobis was applicabl; but notwithstanding the request of the court that he point out any errors relied on, he assigned none, except the ineffective aid of counsel at his August 18, 1955, trial. Told the second time to go ahead with the presentation of evidence, if any, showing that that judgment was invalid, and asked what clerical error, if any, was alleged in the petition, counsel merely replied that there were 'clerical errors' and 'factual errors that also occurred, and that is all I have Your Honor.' Asked if he would rest at that stage, counsel replied, 'Yes, Your Honor.'

In consideration of the pleadings, the evidence and the argument of counsel, the court found that Blowe could not attack a sentence which he was not...