Orel J. Skeen, Warden, Etc., (No. 10121)
| Decision Date | 10 May 1949 |
| Docket Number | (No. 10121) |
| Citation | 132 W.Va. 737 |
| Court | West Virginia Supreme Court |
| Parties | Orel J. Skeen, Warden, Etc. |
1. Pleading
Where, in a criminal case, the defendant in person does not enter a plea of "not guilty" to the entire indictment, but enters such plea in person on a count in the indictment other than the one upon which he was convicted, a conviction on a count to which no plea was entered is not void because of such irregularity and cannot be collaterally attacked. The omission as to plea is merely erroneous, and defendant must seek his remedy in the same case on a motion for a new trial and writ of error, and not in an original proceeding in habeas corpus.
2. Sentence
Under Section 18 of Article 12, Chapter 27, Acts 1939 West Virginia Legislature, as amended and reenacted by Chapter 32, Acts 1943 West Virginia Legislature, and Section 19 of Article 12, Chapter 27, Acts 1939 West Virginia Legislature, parole suspends the sentence; hence, in case the parole is revoked, the time on parole does not count as time served on the prison sentence.
3. Criminal Law
Revocation of parole does not cancel any potential "good time" standing to parolee's credit at the time of his release on parole. Such credit, in case of revocation of parole, carries over to be added to such good time as the parolee may earn against the remainder of the regular sentence.
4. Sentence
Where a parolee is returned to the penitentiary to complete the unserved portion of his maximum sentence (Section 18, Article 12, Chapter 27, Acts 1939 West Virginia Legislature, as amended and reenacted by Chapter 32, Acts 1943 West Virginia Legislature, and Section 19, Article 12, Chapter 27, Acts 1939 West Virginia Legislature), he is entitled to have all "good time" and "extra good time" (Code, 28-5-27; Chapter 56, Acts of the 1931 West Virginia Legislature), less any points lost, acquired both before and subsequent to the time he was on parole, credited against the remainder of his sentence.
Error from Circuit Court, Marshall County.
Habeas corpus proceeding by Jay Watts against Orel J. Skeen, warden of the West Virginia Penitentiary. To review the judgment, Jay Watts brings error.
Affirmed.
Kenna, Judge, concurring. Martin Brown, for plaintiff in error.
Ira J. Partlow, Attorney General, W. C. Marland, Assistant Attorney General, for defendant in error.
Jay Watts prosecutes error to a judgment of the Circuit Court of Marshall County in a habeas corpus proceeding in which he was petitioner and Orel J. Skeen, Warden of the West Virginia Penitentiary, was respondent. On the hearing in the circuit court the respondent's motion to quash was sustained, the petition dismissed and petitioner remanded to the custody of respondent.
The petition in habeas corpus, sworn to on September 11, 1948, charges that the petitioner had been indicted in the Common Pleas Court of Cabell County for (1) breaking and entering, (2) entering without breaking, and (3) the larceny of certain goods, chattels and property of one H. H. Ashmore; that when the case was called a plea of "not guilty" was entered to the count of breaking and entering; that issue was joined thereon; that after hearing the evidence the jury returned a verdict of "guilty as charged in the second count of this indictment"; that later an indeterminate sentence of from one to ten years, to begin on October 28, 1940, was entered; that defendant expressing a desire to apply to the circuit court for a writ of error and supersedeas moved for a stay of execution; and that later Watts appeared and announced that he did not care to further prosecute his appeal and submitted himself to the jurisdiction and custody of the court to answer the sentence theretofore imposed.
It is further charged, in the foregoing petition that on June 26, 1944, petitioner was paroled; that thereafter he spent some time in war work in Detroit; that after the war he returned to Huntington, where, on August 20, 1946, he was arrested on a charge of drunkenness; that because of such offense, the director of probation and parole, on October 28, 1946, revoked the parole whereupon the petitioner was recommitted to the penitentiary; that since his recommitment, the said Skeen, Warden, unlawfully took 281 days of good time away from petitioner, and, on the recommendation of the director of probation and parole, added an additional year to his prison term. Petitioner further alleges that had he been granted good time for the time prior to his parole, during parole and since revocation of his parole, that he should have been discharged not later than July 14, 1947.
The Warden, in his answer, "avers that the sentence was not void, but merely erroneous; and, further, that he has computed the time that petitioner has to serve in accordance with the statutes; and that on such computation the discharge date is not as that alleged in the petition for habeas corpus.
The petitioner, the warden, and Mr. Wells, clerk of the penitentiary, testified in the proceeding. And from the evidence adduced it appears that the petitioner, prior to the time of his parole, was earning not only ten days per month under Code, 28-5-27, but "extra good time" under Chapter 56, Acts of the West Virginia Legislature 1931, which added Section 27 (a) to Code, 28-5. And petitioner claims that he was entitled to good time, and extra good time, throughout the period of his parole.
According to Mr. Wells This witness stated that prior to October, 1947, the petitioner was being retained in the penitentiary under the foregoing recommendation; that in October aforesaid a ruling from the attorney general's office established the procedure to be followed; that that ruling, as it applied to petitioner's case, in witness' own langauge was that "the good time that he [petitioner] had earned prior to parole was not to be allowed the time from the date of his parole until the date of revocation was not to be allowed as any part of his sentence, and under that ruling is how this new expiration date [May 20, 1950] is arrived at." Watts' theory, according to Wells, was "that a man on parole was serving time just the same as if he was in the penitentiary, and that applied and counted on his sentence."
Was the action of the trial court in entering judgment on the jury's finding of "guilty as charged in the second count of this indictment", i.e., entering without breaking, a violation of the due process clauses of both the Federal and State Constitutions? In other words, was the judgment a nullity? Code, 62-3-2, provides, "* * * If he [defendant] refuse to plead or answer, and do not confess his guilt, the court shall have the plea of not guilty entered, and the trial shall proceed as if the acused had entered that plea * * * >' \yhile the record fails to note a plea as to count two, it does show that the defendant appeared in answer to the indictment and entered a plea of "not guilty" to breaking and entering as charged in the first count. There is no question regarding petitioner's presence during the trial. Failure of the court to enter a plea of "not guilty", as provided by law, as to the second count, does not void the trial and judgment. The Common Pleas Court of Cabell County having jurisdiction over the person of the petitioner as well as the subject matter, the omission relied on cannot be reached by collateral attack. See 25 Am. Jur., Habeas Corpus, Sees. 26-28. Such failure at most renders the judgment of sentence erroneous. 14 Am. Jur., Criminal Law, Sec. 257, Note 4. "The trial of a criminal case without a plea to the indictment is erroneous, but for such error or irregularity in the exercise of jurisdiction the complaining party must seek his remedy in the same case by a motion for a new trial and direct appeal." Winslow v. Green, (Ind. 1900), 58 N. E. 259. See, also, State v. Moore, et al, 57 W. Va. 146, 49 S. E. 1015.
Has the petitioner shown, as of the date of his petition, that he had fully satisfied his sentence, and therefore entitled to release? To determine this issue it becomes necessary to consider the statutes involved.
Code, 28-5-27, provides: "Every convict sentenced to the penitentiary * * * during his term of confinement, shall be entitled to a deduction of his sentence as follows:
* * * upon a sentence of ten years or more, ten days from each month. * * * "
A parole granted prior to the enactment of our present statute (1939) relating to probation and parole did not operate as a suspension of the sentence but simply as a permit "to go without the inclosure of the penitentiary", and while so at large the parolee was "deemed to be serving out the sentence imposed upon him by the court, and
* * * entitled to good time the same as if he were confined in the penitentiary." Code, 28-5-28, repealed by Acts, 1939, c. 27, Sec. 21.
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