McClure v. Boles

• Decision Date: 05 October 1964
• Docket Number: Civ. A. No. 1400-W.
• Citation: 233 F. Supp. 928
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Elwood McCLURE, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

233 F. Supp. 928

Elwood McCLURE, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. 1400-W.

United States District Court N. D. West Virginia, at Wheeling.

October 5, 1964.

Sam E. Schafer, Wheeling, W. Va., for petitioner.

Andrew J. Goodwin, Asst. Atty. Gen., for respondent.

PAUL, Chief Judge.

In January, 1958, the petitioner McClure was jointly indicted with two others, Dunbar and Vanater, by the grand jury of Kanawha County, West Virginia, for feloniously entering, without breaking, and with larcenous intent, a business establishment in Charleston, West Virginia. The penalty prescribed by statute for the offense is an indeterminate sentence of 1 to 10 years. Both McClure and Vanater had records of two or more previous convictions.

On arraignment, early in February, both Dunbar and Vanater entered guilty pleas, both having given statements to the police implicating McClure. McClure, represented by a competent and experienced lawyer employed to represent him, entered a plea of not guilty, and his case was severed and set for trial for February 17, 1958. On the appointed day McClure and his counsel appeared, a panel of 20 jurors was drawn and sworn, and, at this juncture, at McClure's request, he was permitted to withdraw his not guilty plea and enter a plea of guilty. The case was continued for sentencing to March 14, 1958. On the latter date, and without prior notice either to McClure or his attorney, the Prosecuting Attorney filed an information charging two prior felony convictions to McClure and invoking the habitual criminal statutes which make mandatory a life sentence under the circumstances. Both McClure and his attorney expressed anger and surprise, and moved to withdraw the former guilty plea. On denial of this motion, McClure put the prosecution to proof of the information by denying the former convictions. The issues on the information were set for jury trial for April 23, 1958.

On April 23d the defense interposed various motions; for continuance, change of venue, and to recuse the Judge, all of which were denied. Defense counsel then renewed his motion to set the conviction aside and to permit McClure to withdraw his plea of guilty, based upon an alleged understanding between the Prosecuting Attorney and defense counsel that the recidivist statutes would not be invoked if McClure cooperated. Rather meager and somewhat equivocal details of the alleged "understanding" were given. The court overruled the motions and the Prosecuting Attorney made no effort to deny defense counsel's statements or to refute any inferences which might be drawn therefrom. Jury trial on the issues of the recidivist information followed; a verdict of guilty was rendered; and the life sentence which McClure is now serving was imposed.

So much for the facts that appear from the record. The remaining essential findings must be made from the testimony, based upon recollection, of the petitioner, his trial counsel and the Prosecuting Attorney.

In conferences with his attorney McClure consistently denied his guilt. He admitted that he was in the company of Dunbar and Vanater on the night of the robbery but insisted that he had no knowledge of their intent and criminal purpose until after they had accomplished it, and that he took no part in the event and no share of the proceeds. He appreciated the weakness of his position before the jury in view of the incriminating statments by his co-defendants and his prior criminal record, which might have been used to impeach his credibility. In spite of this, he wanted to stand trial but he was justifiably apprehensive that, in the event of a guilty verdict, he would be sentenced as a rescidivist. He asked his attorney to confer with the Prosecuting Attorney to see if he could avoid this result by a plea of guilty.

McClure's attorney has testified that, in compliance with his client's request, he conferred with the Prosecuting Attorney on several occasions, including one on the morning of February 17th. His memory was understandably vague about the exact words exchanged, but he was certain of the subject and of the substance. The Prosecuting Attorney advised him that the State's present intention was not to invoke the recidivist statutes against Vanater because Vanater had "cooperated" and gave him reason to believe that if McClure cooperated in the same way, McClure would receive the same treatment. He communicated the substance of the conversations to McClure and the guilty plea resulted. Incidentally, Vanater was later sentenced as a recidivist but this seeming inconsistency may be explained by the fact that, while out on bond awaiting sentence, Vanater committed another felony.

The Prosecuting Attorney denies any understanding and even any conversations, with respect to the sentence treatment of McClure. Attribution of infallibility to his memory is somewhat impaired, however, by the fact that, in 1960, in connection with the State's...