Griffin v. Cunningham
| Decision Date | 15 June 1964 |
| Docket Number | No. 5754,5754 |
| Citation | 136 S.E.2d 840,205 Va. 349 |
| Court | Virginia Supreme Court |
| Parties | LEON S. GRIFFIN v. W. K. CUNNINGHAM, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY. Record |
Evans B. Brasfield, for the plaintiff in error.
Reno S. Harp, III, Assistant Attorney General (Robert Y. Button, Attorney General, on brief), for the defendant in error.
This is an appeal from an order of the Circuit Court of Hanover county, wherein a petition for writ of habeas corpus filed by Leon S. Griffin, sometimes called the petitioner, against W. K. Cunningham, Jr., Superintendent of the Virginia State Penitentiary, sometimes referred to as respondent, was denied and dismissed.
Five trials in the Circuit Court of Hanover county are involved. No evidence produced in any of those trials has been made a part of the record. Consequently, all questions of fact resolved by the trial court must be accepted as conclusive. A recital of each stage in the proceedings, as disclosed in the record before us, will be set out herein in some detail.
Griffin was indicted by a grand jury in the Circuit Court of Hanover county in September, 1955, for two separate offenses of statutory burglary. One indictment charged him with feloniously breaking and entering the store of the Atlantic & Pacific Tea Company in Ashland in the night-time of January 9, 1955, and stealing cigarettes and groceries therefrom valued at $275.00. This will be referred to as the A. & P. case. In the other indictment, he was jointly charged with Edward Lee Burley with feloniously breaking and entering into the Ashland Camera and Jewelry Store in the night-time of March 18, 1955, and stealing therefrom six pistols, some jewelry and watches, valued at $1,000.00. This will be referred to as the Ashland Camera case.
Trials on each of the indictments were held and concluded on December 20, 1955. The judgment order in the A. & P. case entered on that day, recites that:
Griffin [alias Frank Williams and Frank Smith] 'was led to the bar in the custody of the Sheriff of this County. And it appearing to the Court that the accused is not represented by counsel, the Court, before accepting any plea of the accused, doth appoint J. Enos Ray an able and competent attorney at law, practicing before the bar of this Court, to defend him.
'Whereupon the accused, after private consultation with his counsel, stated that he was ready for trial and desired to be tried on this day, Thereupon the accused was duly arraigned and after being advised by his counsel pleaded guilty to the indictment, which plea was tendered by the accused in person, and the Court being of the opinion that the accused fully understood the nature and effect of his plea, proceeded to hear and determine the case without the intervention of a jury as provided by law, and having heard the evidence doth find the accused guilty of Statutory Burglary as charged in the indictment, and ascertains his punishment to be Ten (10) years in the penitentiary.'
Sentence was pronounced against him accordingly.
The order continued: 'Upon recommendation of the Attorney for the Commonwealth execution of sentence in this case is suspended for a period of Forty (40) years upon the condition that the said Leon Sylvester Griffin (alias Frank Williams and Frank Smith) be of good behavior and not violate any of the laws of this Commonwealth.' (Emphasis added.)
In the Ashland Camera case, the order of conviction, entered on the same day, contained the same recitals as to the appointment of counsel to represent Burley and Griffin, their pleas of guilty, the proceedings thereupon, the finding of guilt, and the fixing of punishment of each at confinement for ten years in the penitentiary. It then recited that:
'Upon recommendation of the Attorney for the Commonwealth, execution of sentence in this case is suspended for a period of forty (40) years upon the condition that the said Edward Lee Burley [Alias James Timberlake] and Leon Sylvester Griffin [Alias Frank Williams and Frank Smith] be of good behavior and not violate any of the laws of this Commonwealth and upon the further condition that they disclose to the officers where the pistols and jewelry, which were stolen, now are.' (Emphasis added.)
In each case, the defendants were ordered to be returned to the penitentiary. At the time of his trial, Griffin was serving a three-year sentence imposed on him in the Hustings Court of the city of Richmond for 'unauthorized use of auto.'
On March 19, 1956, both Griffin and Burley were returned from the penitentiary to the Circuit Court of Hanover county, under orders of that court, to show cause why the suspension of their sentences on December 20, 1955, should not be revoked. Each defendant was given a hearing.
In the A. & P. case, the order entered on March 19, 1956, after giving the reason for the hearing, stated that Griffin's sentence in that case had been suspended upon the condition that 'he be of good behavior and not violate any of the laws of this Commonwealth and upon the further condition that he disclose to the officers where the pistols and jewelry, which were stolen, were, and it having been reported to the Court that he has violated the condition of his suspended sentence.' (Emphasis added.) [The judgment order of December 20, 1955, suspending Griffin's sentence was not conditioned upon his disclosure of the location of the pistols and jewelry, which were charged to have been stolen in the Ashland Camera case.]
After hearing the evidence, the court revoked the suspension of the sentence in the A. & P. case, and directed that Griffin be remanded to the penitentiary to serve the ten-year sentence imposed on him on December 20, 1955, that term not to run concurrently with any other sentence imposed upon him by that court.
In the Ashland Camera case, also heard on the same day, the court revoked suspension of the sentences imposed on Burley and Griffin on December 20, 1955, because of their violation of the precise terms of the conditions contained in the suspension order, in that they had not disclosed to the police the location of the pistols and jewelry charged in that case to have been stolen by them.
On April 26, 1962, Griffin, in his own proper person, filed a petition in this Court for a writ of habeas corpus, alleging that he was unlawfully held and detained in the penitentiary in violation of the due process of law and of his constitutional rights by virtue of 'two unlawful judgment orders' entered by the Circuit Court of Hanover county on December 20, 1955 and March 19, 1956. He alleged that he was not represented by counsel at the trials held on the above dates, and that he had not violated any of the conditions for the suspension of his sentences in either of the cases mentioned. He prayed that he be allowed to proceed in forma pauperis.
We issued a writ on October 3, 1962, directing the Superintendent of the penitentiary to have the body of Griffin before the Circuit Court of Hanover county for a determination of the matters set forth in the said petition. The respondent complied with the writ and filed his answer in the circuit court on December 18, 1962. A hearing was held, at which Griffin was represented by counsel of his own choosing.
In a written opinion dated December 26, 1962, and in an order dated March 8, 1963, directed to be entered nunc pro tunc as of December 26, 1962, the circuit court denied the writ.
The record shows no further steps taken by counsel who represented Griffin at the hearing.
On February 25, 1963, Griffin filed his assignment of errors in his own proper person. On October 14, 1963, we awarded this writ of error, and on the following day we granted him leave to proceed in forma pauperis, and appointed his present counsel to represent him in this proceeding.
Griffin, by his court-appointed counsel, assigns three errors to the action of the trial court in denying him relief. He asserts: (1) that the order revoking suspension in the A. & P. case was void, because the court based it on an act not constituting a violation or breach of any condition of the suspension in that case; (2) that the revocation of the suspension of his sentences in the burglary cases was void because he was not represented by counsel in the proceedings therefor; and (3) that the appointment of counsel for him on the day of his trials for statutory burglary did not allow sufficient time for counsel to prepare his defense.
Griffin, in order to preserve his suspension of sentence in the A. & P. case, was required 'to be of good behavior and not violate any of the...
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