Pugh v. Leverette, 15366

• Decision Date: 28 January 1982
• Docket Number: No. 15366,15366
• Citation: 286 S.E.2d 415,169 W.Va. 223
• Court: West Virginia Supreme Court
• Parties: William Thomas PUGH v. Bobby LEVERETTE, Warden, West Virginia Penitentiary.

Page 415

286 S.E.2d 415

169 W.Va. 223

William Thomas PUGH v. Bobby LEVERETTE, Warden, West Virginia Penitentiary.

No. 15366.

Supreme Court of Appeals of West Virginia.

Jan. 28, 1982.

Syllabus by the Court

1. "A plea of guilty of a capital crime should be accepted cautiously and not until the court has warned the prisoner and been satisfied that he has acted freely and deliberately after being so admonished and with full knowledge, appreciation, and understanding of the nature and consequences of his confession." Syl. pt. 1, State v. Hill, 81 W.Va. 676, 95 S.E. 21 (1918).

2. "An arraignment of a defendant on an indictment charging a felony, if the plea is made in open court by the defendant in person, is sufficient where the person arraigned is identified as the person named in the indictment, is fully advised as to the charge, as to his rights relating to the plea, as to his rights of a jury trial, and of the consequences of his plea, if the defendant intelligently understands and appreciates such advice and consequences." Syl. pt. 2, State ex rel. Burkhamer v. Adams, 143 W.Va. 557, 103 S.E.2d 777 (1958).

3. The law in West Virginia in 1964 required a court accepting a guilty plea (1) to advise the defendant in open court of the nature of the charge against him, of his right to a jury trial and of the consequences of a guilty plea, (2) to determine whether the defendant understood and appreciated this advice and (3) to ascertain whether the plea was entered voluntarily, without threat or coercion. The failure of the trial court to so inform the defendant before accepting the plea would have resulted in a void conviction and warrants relief in habeas corpus.

Paul S. Detch, Lewisburg, for appellant.

Chauncey H. Browning, Jr., Atty. Gen. and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

William Thomas Pugh was convicted, upon a plea of guilty entered May 5, 1964, of the crime of rape and was sentenced by the Circuit Court of Greenbrier County to life imprisonment. He appeals from a decision of that court, entered February 17, 1981, which denied him a writ of habeas corpus by which he sought to have his conviction set aside and to be discharged from custody. Pugh contends that his conviction is void in that the guilty plea upon which it was based was not made voluntarily, knowingly and intelligently.

On March 25, 1964, at approximately 8:15 a. m., Pugh, a black male, age 24, was taken into custody by officers of the Department of Public Safety in connection with their investigation of the armed robbery and rape of a white female that had occurred earlier that morning in White Sulphur Springs. According to the state trooper who conducted the investigation, Pugh was arrested on the basis of a vague description given him by the near-hysterical victim as to the height and clothing of her assailant. Pugh, a resident of Pittsburgh, Pennsylvania, was visiting his father's home in White Sulphur Springs at the time. At the habeas corpus proceeding he testified that the officers asked him several questions at his father's home and then asked him to accompany them to the county jail at Lewisburg for further questioning. Pugh complied and was transported to and lodged in the Greenbrier County Jail at approximately 8:47 a. m. Shortly after his arrival, Pugh was asked to remove his clothing and was given a pair of pants and slippers to wear. He was interrogated several times during the day and asked to sign a statement confessing to the rape. No attorney was present during these interrogations. Pugh further claims that the interrogating officer struck him, threatened him and told him he would not be permitted to call his wife until he signed the statement. The state trooper who conducted the interrogation refutes the latter allegations. At 2:20 p. m., Pugh signed a statement admitting that he committed the rape.

Throughout the day of March 25, 1964, testimony shows that the sheriff's department received phone calls threatening Pugh and advising that he be moved to another location. The state trooper and the deputies testified that these threats were supported by rumors "on the street" and by the fact that the community was highly incensed by the crime. The authorities feared that someone would attempt to break into the jail to "get" Pugh. In the late afternoon the decision was made to move Pugh for his own safety. Pugh was awakened in his cell and told to dress. The deputy told him this was for his own safety and that he had better get moving or he would have a "permanent sleep." All of the deputies who testified stated that Pugh was aware of danger to his safety and had reason to fear for his life, as they themselves did, even though he had not been told of any direct threats made against him.

Pugh was then taken before a justice of the peace who had been called from his office to the jail to conduct a hearing. At this time Pugh had still not spoken to an attorney or to his family. The justice of the peace testified that he informed Pugh of his right to an attorney and to consult with his family, but could not recall if Pugh had voluntarily waived those rights. He indicated that Pugh may not have said anything during the hearing. The transcript of the proceeding signed by the justice of the peace indicated that Pugh had waived his right to a preliminary hearing and that he was bound over, without bond, to the next term of court. Pugh was then placed in a police car with two state troopers and was transported to the Raleigh County Jail in Beckley. Two deputies followed in an unmarked car in the event someone would try to stop the police car. At some point during the trip Pugh was made to lie down in the back seat of the car so that he couldn't be seen from outside the vehicle.

At the Raleigh County Jail, Pugh was placed in an 8 X 10 foot isolation cell normally used to segregate sick prisoners from other inmates. He testified that the cell contained a steel bed with no mattress and that the cell was provided with a sink and toilet which were operated by the jailer from outside the cell. Pugh testified that he was fed only once or twice a day and that he was denied a shower, soap, towels and a razor during his stay at the jail. This is supported by the testimony of a Greenbrier County deputy sheriff who stated that when Pugh was returned to Lewisburg for arraignment he was dirty, appeared that he hadn't had a bath and had whiskers about an inch long. Pugh also testified that he was given no other clothing than the pants and slippers he was provided with at the Greenbrier County Jail, although deputies testified that Pugh left the jail wearing shoes and a shirt as well.

During his stay at the Raleigh County Jail, Pugh's brother and wife attempted to visit him but were told that he was not being held there. After they left the jail they saw Pugh standing at a window, talked with him briefly and attempted again to see him, but were again told that he was not being held at the jail. Pugh's brother testified that approximately two weeks later he again attempted to visit Pugh at the Raleigh County Jail and was again told that he was not there. The records of the Raleigh County Sheriff's Department show the incarceration of one William Pugh, a white male, during March 1964, but show no record of Pugh's incarceration.

On April 20, 1964, Pugh was returned to the Greenbrier County Jail for arraignment. On April 23, 1964, Pugh pled not guilty to charges of armed robbery, kidnapping, malicious wounding and rape. The orders of the circuit judge indicate that Pugh appeared in person and by counsel, but Pugh denies that he conferred with counsel and testified that he did not recall the arraignment. During this time Pugh's wife came to the jail with a preacher and was allowed to speak to Pugh for about five minutes. She indicated that she would get him an attorney and left. Pugh was returned to Beckley on April 23, 1964.

On May 4, 1964, Pugh was transported back to the Greenbrier County Jail. On May 5, 1964, Pugh consulted with his court-appointed attorneys, one of whom he testified informed him that he had no defense, that he should plead guilty to the rape charge and that if he didn't he would go to the electric chair. Pugh stated that this consultation was his first with a lawyer, that it lasted only a few minutes and that he was told that if he pled guilty he would be sentenced to a term of only ten years. Pugh was then taken before the circuit judge and asked permission to withdraw his plea of not guilty and enter a plea of guilty to the rape charge. The judge accepted the plea and sentenced Pugh to life imprisonment. After the proceedings Pugh was overheard by a deputy to complain to his lawyer that he had been told he would only receive a ten-year sentence. The lawyer replied that he had told Pugh only that he would be eligible for parole in ten years. The next day Pugh was transported to the State Penitentiary without having ever informed his family of the entry of the guilty plea. The other charges apparently were dropped.

No record was made of the arraignment proceedings or the taking of the plea. The circuit court judge testified by deposition that he had no recollection of the proceedings held on May 5, 1964, but that he knew he had not advised Pugh of the charges against him, of his rights with respect to the plea, of the consequences of the plea, of the penalty that might be imposed or of his right to a jury trial because it was not the practice of the court to so advise defendants tendering guilty pleas at that time. He also stated that he did not request a court reporter to record the proceedings and made no inquiry into whether Pugh had intelligently entered his plea with an understanding and appreciation of the consequences because it was not required at that time and was not the procedure of the court. The prosecuting attorney had no recollection of the tender of...