Kibert v. Com., 750095
| Decision Date | 05 March 1976 |
| Docket Number | No. 750095,750095 |
| Citation | 216 Va. 660,222 S.E.2d 790 |
| Parties | Lloyd Paskel KIBERT v. COMMONWEALTH of Virginia, and W. D. Blankenship, Superintendent of Bland Correctional Center. Record |
| Court | Virginia Supreme Court |
Birg E. Sergent, Jr., Pennington Gap, for plaintiff in error.
Burnett Miller, III, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.
Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
This appeal presents the question whether Virginia law requires the introduction of evidence to sustain a conviction based upon a plea of guilty in a criminal case.
The question arises against the background of a series of attempts by Lloyd Paskel Kibert to overturn his two convictions of murder of the first degree, upon which concurrent life sentences were imposed. The convictions were based upon pleas of guilty entered by Kibert on June 4, 1959, to two statutory short form indictments for murder. The voluntariness of Kibert's pleas long since has been resolved adversely to his claims.
Following unsuccessful attempts to overturn his convictions in state courts, Kibert filed a petition for habeas corpus relief in the United States District Court for the Western District of Virginia. Proceeding upon the belief that the indictments against Kibert charged only second degree murder, the District Judge ruled that at Kibert's trial the burden was on the Commonwealth to produce evidence to elevate the offenses to first degree murder. Finding that no evidence had been produced at Kibert's trial, the District Judge held that Kibert's convictions of murder of the first degree were based solely upon his pleas of guilty and that the convictions were, therefore, 'so totally devoid of evidentiary support as to be a denial of due process of law.' Accordingly, the District Judge awarded Kibert habeas corpus relief. Kibert v. Slayton, D.C., 356 F.Supp. 760 (1973).
In an unreported memorandum decision dated May 29, 1974, the United States Court of Appeals for the Fourth Circuit reversed the judgment of the District Court. Although the Court of Appeals accepted the District Judge's finding that no evidence had been introduced at Kibert's trial, the Court held that Kibert's pleas of guilty to the short form indictments constituted, under Virginia law, pleas to murder of the first degree. Whether, however, under Virginia law, the introduction of evidence was necessary to sustain the convictions, the Court stated, was a question not 'definitely resolved.' Stating that principles of comity were 'most acute' in the case, the Court refrained from deciding the question to afford Virginia 'the opportunity to have its own tribunals interpret the unsettled state law.' Kibert's petition for habeas corpus relief was ordered dismissed without prejudice to his right to reassert his 'no evidence' claim in federal courts after he had exhausted state remedies.
Kibert sought and was denied certiorari. 419 U.S. 995, 95 S.Ct. 307, 42 L.Ed.2d 268 (1974). He then filed in the court below a Pro se 'Petition for a Writ of Coram Vobis.' While he reasserted a number of grounds for relief which previously had been finally rejected, Kibert did allege that there was 'no evidence presented at the trial.' The lower court denied Kibert's petition, and we granted a writ of error limited to the sole question of the necessity of evidence to sustain a conviction based upon a plea of guilty.
At the outset, a proposition emerges which, under normal circumstances, would be conclusively dispositive. The orders of conviction in Kibert's case recite that the court, Having heard the evidence, proceeded to find the accused guilty of murder of the first degree. The recital in the orders that the court had heard the evidence is an absolute verity, and it is not subject to collateral attack. Abbott v. Peyton, 211 Va. 484, 487, 178 S.E.2d 521, 523 (1971); Hobson v. Youell, 177 Va. 906, 916, 15 S.E.2d 76, 80 (1941).
We do not retreat from this proposition, and its unbending application ordinarily would end the case. The Court of Appeals for the Fourth Circuit, however, found principles of comity so 'acute' that it was prompted to refrain from deciding the important question of state law presented by Kibert's 'no evidence' claim. A reciprocal sense of judicial courtesy prompts us to resolve the question on its merits.
We will assume, therefore, that no evidence was introduced at Kibert's trial. Having made that assumption, we now inquire whether the Constitution, the statutes, or the case law of Virginia required the introduction of evidence at the trial.
Section 8 of the Constitution of Virginia of 1902, in effect at the time of Kibert's trial, provided that These provisions are now found in Article I, § 8 of the present Constitution of Virginia.
Code § 19--166, in effect at the time of Kibert's trial (now § 19.2--257), provided that '(u)pon a plea of guilty in a felony case . . . the court shall hear and determine the case without the intervention of a jury.' Code § 19--223 (See present §§ 19.2--257 and --288) provided that '(i)f the accused confess the indictment (for murder) to be true, the court shall hear the case without the intervention of a jury, and shall ascertain the extent of the punishment.'
Kibert contends that these constitutional and statutory sections, which provide that upon a plea of guilty the court shall Try the case, shall Hear and Determine the case, and shall Hear the case and Ascertain the punishment, clearly require the court to 'hear and consider the evidence against the accused . . . where a plea of guilty is entered.' We disagree.
We believe the recited constitutional and statutory provisions do no more than authorize and require a trial court, when a plea of guilty is entered in a criminal case, to dispose of the case without the intervention of a jury. Upon a plea of not guilty, the court may dispose of a criminal case without the intervention of a jury only with the consent of the accused and the concurrence of the Commonwealth's Attorney and the court entered of record. The alternate provisions relating to a plea of guilty are intended, in our opinion, only to make clear that the requirement of consent and concurrence entered of record does not apply when a guilty plea is entered and that it is mandatory for the court to dispose of the case without the intervention of a jury.
To say, as Kibert would have us say, that under the statutes of Virginia a...
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