Kosut v. Leverette, 14034
| Decision Date | 14 March 1978 |
| Docket Number | No. 14034,14034 |
| Citation | 161 W.Va. 330,242 S.E.2d 247 |
| Court | West Virginia Supreme Court |
| Parties | Thomas KOSUT v. Bobby LEVERETTE, Warden, West Virginia Penitentiary. |
Syllabus by the Court
"The proscription against unconstitutionally shifting the burden of proof in criminal trials from the state to the defendant through the use of presumptions is fully retroactive and may be raised by collateral attack against a final conviction." Point 2, Syllabus, Jones v. Warden, West Virginia Penitentiary, W.Va., 241 S.E.2d 914 (1978).
Frankovitch & Anetakis, Carl N. Frankovich, Weirton, for relator.
Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondent.
In this original proceeding in habeas corpus, relator, Thomas Kosut, seeks a writ from this Court discharging him from custody. Relator is currently serving a life sentence pursuant to his conviction of first degree murder in the Circuit Court of Hancock County on February 25, 1971. At relator's trial instructions of the type subsequently condemned in the case of State v. Pendry, W.Va., 227 S.E.2d 210 (1976), were given. 1
In the recent case of Jones v. Warden, West Virginia Penitentiary, W.Va., 241 S.E.2d 914 (1978), this Court held that the holding of Pendry was fully retroactive. Syllabus Point 2 of Jones reads:
"The proscription against unconstitutionally shifting the burden of proof in criminal trials from the state to the defendant through the use of presumptions is fully retroactive and may be raised by collateral attack against a final conviction."
The holding of Jones was mandated by Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), which gave retroactive effect to the earlier opinion of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In Mullaney, the Court declared Maine's murder statute unconstitutional. Under that statute, a person accused of murder could rebut the statutory presumption that he committed the offense with "malice aforethought" by proving that he acted in the heat of passion on sudden provocation. The Court held that this scheme improperly shifted the burden of persuasion from the state to the defense and was therefore a violation of due process. Mullaney formed the constitutional underpinning of this Court's decision in Pendry.
Because Pendry was held in Jones to be fully retroactive, the writ of habeas corpus sought by realtor is therefore awarded. Relator is discharged from custody subject to the right of the State to retry him on the original criminal charge.
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...& 13870) (Opinion by Justice Neely); State v. Sanders, W.Va., 242 S.E.2d 554 (1978) (Opinion by Justice McGraw); Kosut v. Leverette, W.Va., 242 S.E.2d 247 (1978) (Per Curiam). In State v. Kirtley, W.Va., 252 S.E.2d 375 (1978), we recognized that a Mullaney-Pendry instruction given in a case......