State ex rel. Arbraugh v. Boles

Citation139 S.E.2d 370,149 W.Va. 193
Decision Date18 December 1964
Docket NumberNo. 12367,12367
PartiesSTATE ex rel. Larry ARBRAUGH v. Otto C. BOLES, Warden, West Virginia Penitentiary.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. 'The right of one accused of a crime to the assistance of counsel is a fundamental right, essential to a fair trial; therefore the safeguard of counsel, provided by the Sixth Amendment to the Constitution of the United States, is made obligatory upon the states by virtue of the due process clause of the Fourteenth Amendment.' Point 1, syllabus, State ex rel. May v. Boles, etc., W.Va. .

2. 'The right to the assistance of counsel, being a fundamental right, will not be presumed to have been waived by the failure of the accused to request counsel, by his entry of a guilty plea or by reason of a record silent on the matter of counsel.' Point 3, syllabus, State ex rel. May v. Boles, etc., W.Va. .

3. Where there is no indication from the record, or otherwise, that an accused was offered counsel, or that he intelligently and understandingly waived the assistance of counsel, the constitutional right of such accused relating thereto has been violated, his conviction and sentence are therefore void, and he should be released from confinement in the penitentiary upon a petition for a writ of habeas corpus.

Timothy N. Barber, St. Albans, for relator.

C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.

BERRY, Judge.

This petition for a writ of habeas corpus was instituted under the original jurisdiction of this Court by the petitioner, Larry Arbraugh, an inmate of the West Virginia State Penitentiary at Moundsville, and was returnable September 15, 1964, but was continued by agreement of the parties until November 10, 1964, at which time it was submitted on arguments and briefs for decision of this Court.

The petitioner was indicated on October 6, 1947, by he grand jury of Ohio County, West Virginia, for three separate offenses of breaking and entering. On October 14, 1947, the defendant pleaded guilty to each of the three indictments and sentence was deferred until October 20, 1947, at which time sentencing was again deferred until October 24, 1947. On October 23, 1947, the prosecuting attorney of Ohio County filed an information setting out four previous convictions and the petitioner admitted that he was the same person involved in the former convictions. Thereupon, the court sentenced him to confinement in the West Virginia State Penitentiary for the rest of his natural life.

The copy of the information filed with the petition indicates that it was filed in the Intermediate Court of Ohio County on the 28th day of October, 1947, and it is the contention of the petitioner that his life sentence based on the information is therefore void because it was filed five days after he had been sentenced on October 23, 1947. However, the photostatic copy of the information filed in this case contained in the respondent's return clearly shows by the clerk's notation that it was filed in the Intermediate Court of Ohio County on the 23rd day of October, 1947, at 1:14 p. m. Therefore, we are of the opinion that the petitioner's contention with this respect is not well taken.

The questions raised by the petitioner in this proceeding to maintain his contention that he should be released from the custody of respondent are that he was not advised that he could have the assistance of counsel and therefore never waived such appointment by the trial court in connection with the three main offenses of breaking and entering; and also that he was not duly cautioned before being given the life sentence based on the previous convictions contained in the information.

Both the Constitution of the State of West Virginia and of the United States provide for the assistance of counsel. Article III, Section 14, of the West Virginia Constitution, and the Sixth Amendment to the Constitution of the United States. However, the right to have the assistance of counsel may be waived if done so intelligently and understandingly. State ex rel. Powers v. Boles, W.Va., 138 S.E.2d 159; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.

The recent United States case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, held that the Sixth Amendment was applicable to state courts as well as to Federal Courts by virtue of the Fourteenth Amendment relative to due process, and in so doing overruled the case of Betts v. Brady, 316 U.S. 455, ...

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15 cases
  • State ex rel. Smith v. Boles
    • United States
    • Supreme Court of West Virginia
    • January 12, 1966
    ...... State ex rel. Bullett v. Boles, W.Va., 143 S.E.2d 133; State ex rel. Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; States ex rel. Pettery v. Boles, 149 W.Va. 379, 141 S.E.2d 80; State ex rel. Whytsell v. Boles, 149 W.Va. 324, 141 S.E.2d 70; State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370; State ex rel. Browning v. Boles, 148 W.Va. 181, 139 S.E.2d 263; State ex rel. Stumbo v. Boles, 149 W.Va. 174, 139 S.E.2d 259; State ex rel. Hicklin v. Boles, 149 W.Va. 163, 139 S.E.2d 182; State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177; State ex ......
  • State v. Thomas, 13358
    • United States
    • Supreme Court of West Virginia
    • March 19, 1974
    ....... .' Syllabus Point 1, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). .         24. '(T)he conviction of a ...Browning v. Boles, 149 W.Va. 181, 139 S.E.2d 263 (1964); State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370 (1964). Since Gideon, this Court has never wavered in ......
  • Cuppett v. Duckworth, 89-1896
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 8, 1993
    ......v. . Jack R. DUCKWORTH, * Superintendent, Indiana . State Reformatory, Respondent-Appellee. . No. 89-1896. . United States Court ... See State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). He did not. ...Boles, 149 W.Va. 264, 140 S.E.2d 463 (1965); State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370 (1964); State ex rel. Browning ......
  • State ex rel. Strickland v. Melton
    • United States
    • Supreme Court of West Virginia
    • December 13, 1968
    ......Beckett v. Boles, 149 W.Va. 112 (138 S.E.2d 851). .         7. 'A person imprisoned under a void sentence will be released from such imprisonment by a writ ...Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Pettery v. Boles, 149 W.Va. 379, 141 S.E.2d 80; State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370; State ex rel. Browning v. Boles, 149 W.Va. 181, 139 S.E.2d 263; State ex rel. Stumbo v. Boles, 149 W.Va. ......
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