Smyth v. Holland, 4657

Decision Date26 April 1957
Docket NumberNo. 4657,4657
Citation199 Va. 92,97 S.E.2d 745
CourtVirginia Supreme Court
PartiesW. FRANK SMYTH, JR., SUPERINTENDENT OF THE VIRGINIA STATE PENITENTIARY v. JAMES RAYMOND HOLLAND. Record

Thomas M. Miller, Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the plaintiff in error.

No brief for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court

At the January 1935 term of the Corporation Court of the City of Norfolk, the grand jury for that court returned an indictment against James Raymond Holland, which contained two counts, the first charging him with armed robbery, and the second with the felonious and forcible taking from the person of another goods and money by putting the said person in bodily fear. Code of Virginia, § 18-163. Each offense was charged as having been committed against Bessie A. Etheridge on January 5, 1935.

At the February term, 1935, of the same corporation court, Holland was indicted for the theft of an automobile of the value of $500.

At the March term, 1935, of the Corporation Court of the City of Danville, Holland was indicted for the theft, in Danville, of a pocket watch of the value of $70, of the property of T. D. Cunningham.

The record shows that Holland, upon his arraignment in the Corporation Court of the City of Norfolk, on the indictment returned in January, 1935, pleaded guilty to the first count thereof, and 'on his motion, with the consent of the Attorney for the Commonwealth, the whole matter of record and fact was heard and determined by the Court.' The court adjudged him guilty as charged in the first count, fixed his punishment at 25 years in the penitentiary, and in accordance therewith sentenced him to serve the term of 25 years, subject to a credit of 37 days spent in jail awaiting trial. On the same day, he was thereafter arraigned upon the indictment charging him with the theft of an automobile, and the judgment of conviction contained the recital that he 'plead guilty to the said indictment and on his motion with the consent of the Attorney for the Commonwealth, the whole matter of law and fact was heard and determined by the Court.' He was found guilty, his punishment fixed at one year in the penitentiary, and he was sentenced accordingly, subject to a credit of 37 days spent in jail awaiting trial. This second order specified that the sentence of one year was not to run concurrently with the sentence of 25 years first imposed.

On March 5, 1935, Holland was tried in the Corporation Court of the City of Danville upon the indictment therein charging him with grand larceny. He pleaded, in his own proper person, guilty, and 'by consent as well of the Attorney for the Commonwealth as of the accused,' the evidence was heard and determined by the court. He was found guilty and his punishment fixed at 6 years in the penitentiary, subject to a credit of 11 days spent in jail awaiting trial.

On December 5, 1955, Holland, sometimes hereinafter referred to as petitioner, filed his petition in the Hustings Court of the City of Richmond, Part II, for a writ of habeas corpus ad subjiciendum directed against W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary.

The petitioner alleged that the judgments of the Corporation Court of the City of Norfolk were void as lacking due process of law. Specifically, he averred that being ignorant of his rights, having no means of employing counsel, and 'listening to the advice of other prisoners and people equally ignorant of such matters, (he) thought that it would go easy with him if he pleaded guilty, did so;' that no counsel was appointed to defend him, to advise him of his rights, or to inform him of the effect of his plea of guilty; and no inquiry was made as to whether he understood the effect of his plea of guilty. With respect to the trial upon the indictment in the Corporation Court of the City of Danville, he made the same allegations and further alleged that he 'discovered long afterwards' that the watch which he was charged with stealing had, in fact, been stolen in the Town of Virginia Beach, Virginia, and not in the City of Danville, 'by someone other than' petitioner; and consequently the Corporation Court of the City of Danville was without jurisdiction to indict or try him for that offense.

Attached to the petition were certified copies of the indictments and judgments referred to, of letters to Holland's counsel from the Clerks of the Corporation Courts of the Cities of Norfolk and Danville stating there was no record in their respective courts of an attorney having been appointed to defend Holland in the trials of the cases mentioned, and of a letter from the Assistant Chief of Police of the Town of Virginia Beach, to Holland, dated September 27, 1941, that T. D. Cunningham of Danville, Virginia, had 'reported stolen' on August 11, 1934, his Hamilton wrist watch and certain other personal property from a hotel room at Virginia Beach.

Upon consideration of the above petition, the Hustings Court entered an order directing W. Frank Smyth, Jr., Superintendent of the Virginia State Penitentiary, to show cause why the writ of habeas corpus should not issue.

In response, W. Frank Smyth, Jr., Superintendent as aforesaid, answered and said: (1) That petitioner was then serving the six-year sentence imposed upon him by the Corporation Court of the City of Danville on March 5, 1935, which sentence would not expire until November 12, 1959; that petitioner did not state a case for the issuance of a writ of habeas corpus in connection with the judgment of the Corporation Court of the City of Danville, for a non-capital offense; and that petitioner had had ample knowledge of court proceedings prior to his conviction in Danville.

Attached to respondent's answer was a certificate from Curtis R. Mann, Director, Bureau of Records and Criminal Identification, Virginia State Penitentiary, showing that the sentences imposed by the Corporation Court of the City of Norfolk had expired respectively on November 24, 1954, and July 29, 1955; and that the six-year sentence imposed in the Corporation Court of the City of Danville would not expire until November 12, 1959. In addition, was listed the conviction of the petitioner in the Circuit Court of the City of Richmond on November 4, 1935, as a 'repeater,' (Virginia Code, § 53-296), when an additional sentence of one year was imposed, which term would not expire until July 1, 1960.

There was also listed a sentence of ten years imposed upon petitioner on Jan. 18, 1928, in the Circuit Court of Isle of Wight County, Virginia, for attempted bank robbery. He had been discharged from custody thereunder on February 2, 1934, the sentence having been fully served.

Upon consideration of Holland's petition and the answer of the respondent, the Hustings Court on January 30, 1956, ordered that a writ of habeas corpus issue upon so much of the petition as alleged that the trial of Holland in the Corporation Court of the City of Norfolk, at the January, 1935, term of that court, for armed robbery was void.

The record contains a brief summary of Holland's testimony, certified by the trial judge. The testimony is in support of petitioner's claim that he was denied due process of law upon his several trials. He alleged that he had completed service of his sentence for armed robbery, and was being detained for service of a sentence for another offense.

On February 20, 1956, the Hustings Court entered the following judgment order:

'And after hearing the evidence and argument of counsel, the Court being of opinion that failure of the petitioner to have counsel resulted in a lack of due process of law in the trial of the petitioner held in the Corporation Court of the City of Norfolk on February 12, 1935, and that the judgment of the court sentencing the petitioner to twenty-five (25) years in the penitentiary for armed robbery (a capital offense), is void; and that the time allegedly served by the petitioner on such conviction should actually be credited as served upon other sentences totalling eight (8) years, which, if so credited, will have been completely served, entitling the petitioner to his release;

'Therefore, the Court doth adjudge and order that the petitioner be released from custody by the respondent; to which action of the Court, the...

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20 cases
  • Jones v. Commonwealth
    • United States
    • Virginia Supreme Court
    • February 2, 2017
    ...of a criminal offense, shall be ascertained by the jury, or by the court in cases tried without a jury."); Smyth v. Holland, 199 Va. 92, 98–99, 97 S.E.2d 745, 749–50 (1957) ("Provisions relating to the remission of fines and penalties, punishment and execution of sentences, the commencement......
  • Lovitt v. Warden, Record No. 012663.
    • United States
    • Virginia Supreme Court
    • September 12, 2003
    ...419, 420-21, 498 S.E.2d 695, 696 (1998); McClenny v. Murray, 246 Va. 132, 134-35, 431 S.E.2d 330, 331 (1993); Smyth v. Holland, 199 Va. 92, 96-97, 97 S.E.2d 745, 748-49 (1957). This different focus raises the issue whether a due process right may be asserted in a habeas corpus proceeding to......
  • Prince v. Clarke
    • United States
    • U.S. District Court — Eastern District of Virginia
    • July 12, 2018
    ...Wilkins, 255 Va. 419, 420-21, 498 S.E.2d 695, 696 (1998); McClenny v. Murray, 246 Va. 132, 134-35, 431 S.E.2d 330, 331 (1993); Smyth v. Holland, 199 Va. 92, 96-97 S.E.2d 745, 748 (1957)). This Court may not review claims which have been procedurally defaulted in state court. Ellis v. Johnso......
  • Jones v. Commonwealth
    • United States
    • Virginia Supreme Court
    • February 2, 2017
    ...convicted of a criminal offense, shall be ascertained by the jury, or by the court in cases tried without a jury."); Smyth v. Holland, 199 Va. 92, 98-99, 97 S.E.2d 745, 749-50 (1957) ("Provisions relating to the remission of fines and penalties, punishment and execution of sentences, the co......
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