Harris v. Boles, 9917.
| Citation | 349 F.2d 607 |
| Decision Date | 17 August 1965 |
| Docket Number | No. 9917.,9917. |
| Parties | Chester HARRIS, Appellee, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George H. Mitchell, Asst. Atty. Gen., of West Virginia (C. Donald Robertson, Atty. Gen., of West Virginia, on brief), for appellant.
Joseph A. Gompers, Wheeling, W. Va. (Court-assigned counsel), for appellee.
Before SOBELOFF and BRYAN, Circuit Judges, and WINTER, District Judge.
The State of West Virginia seeks by this appeal to reverse an order of the United States District Court for the Northern District of West Virginia. The order directed Otto C. Boles, Warden of the state penitentiary, to release the appellee Chester Harris, petitioner for federal habeas corpus, who has been confined since December 29, 1950, under a life sentence as a recidivist.
Execution of the order of release was stayed, however, to allow the state to take an appeal or initiate retrial proceedings in the state courts. The Attorney General decided to take an appeal, conceding, in keeping with the established practice in the courts of West Virginia, that if the District Court's order is affirmed the recidivist information upon which Harris was convicted and sentenced could not be retried. This limitation on retrial is based on the requirement, embodied in the recidivist statute, that a defendant shall be tried for recidivism during the same term of court as his most recent conviction. West Virginia Code § 6131 (61-11-19) (1961).
In November, 1950, Harris was arrested and charged in a two count indictment, one count alleging breaking and entering, and the other alleging an entry without breaking of a dwelling house and room. After a plea of not guilty was entered, the trial proceeded and the jury found the defendant guilty of entering without breaking. The maximum sentence for this offense is a term of one to ten years. The following month, on December 29, 1950, the defendant was again brought before the court, this time to answer to an information filed by the prosecutor charging him with having been convicted of prior felonies in the State of Georgia and invoking the provisions of the habitual criminal statute, West Virginia Code § 6130 (61-11-18) (1961). The judge asked the defendant if he was the person involved in the prior convictions, and when Harris admitted that he was, the life sentence was imposed.
The West Virginia habitual offender statute plainly requires that the defendant shall be "duly cautioned" before being asked concerning his identity as the person who has been previously convicted. The decisions of the Supreme Court of Appeals of West Virginia insist that strict observance of this requirement is jurisdictionally mandatory and that unless fully complied with the additional sentence for recidivism is void. State ex rel. Robb v. Boles, 136 S.E.2d 891 (W.Va.1964). In his petition for habeas corpus Harris asserted that he had not been duly cautioned in the recidivist proceeding, that he was simply told to stand and answer the judge's questions. In the federal court hearing the state merely offered in evidence the state court judgment order which recites without further elaboration that the petitioner was "duly cautioned." No effort was made to call any of the participants in the proceeding though several of them were available. The Supreme Court of Appeals of West Virginia has recently held that such a statement in the judgment order "is merely the opinion of the circuit court * * * and must be regarded as a conclusion instead of a statement of fact * * *." State ex rel. Beckett v. Boles, 138 S.E.2d 851, 856 (W.Va.1964).
From these recent expositions of the law by the highest court of the state, it appears that West Virginia's trial judges have in the past often failed to "duly caution" defendants in recidivist proceedings. While judgments frequently included recitals of cautioning, these were in many instances no more than routine statements made even when no cautioning had occurred. In the case last cited, for example, while the judgment order declared that the defendant had been "duly cautioned," the transcript showed with perfect clarity that no attempt had been made to warn ...
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