State ex rel. Ashworth v. Boles, 12266

• Decision Date: 08 October 1963
• Docket Number: No. 12266,12266
• Citation: 148 W.Va. 13,132 S.E.2d 634
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Lee Taylor ASHWORTH v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 634

132 S.E.2d 634

148 W.Va. 13

STATE ex rel. Lee Taylor ASHWORTH v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12266.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 4, 1963.

Decided Oct. 8, 1963.

Syllabus by the Court

1. There is a strong presumption in favor of the regularity of court proceedings and the burden is on the person who alleges irregularity to show affirmatively that such irregularity existed.

2. Where it appears affirmatively from the record that the special judge below had not been elected at the time he pronounced sentence, such special judge was without jurisdiction to so act and any sentence imposed by him is void.

3. "One imprisoned in consequence of a sentence which is void may obtain his release from such imprisonment by a habeas corpus proceeding.' Point 3, Syllabus, State ex rel. Firestone v. Adams, 145 W.Va. 194 '. Point 3, Syllabus, State ex rel. Browning v. Boles [W.Va., 132 S.E.2d 505].

Andrew A. Raptis, Jr., Charleston, for relator.

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

CAPLAN, Judge.

The relator, Lee Taylor Ashworth, a prisoner in the state penitentiary in Moundsville, invoked the original jurisdiction of this Court by filing with it on July 3, 1963, his petition for a writ of habeas corpus. On July 30, 1963, a writ was issued by this Court commanding Otto C. Boles, respondent herein, to produce the body of the relator before this Court on September 4, 1963, and to show cause why he detains and restrains the relator of and from his liberty. Counsel was appointed to represent the relator in this proceeding. On September 4, 1963, this case was submitted for decision, briefs having been filed and arguments made on behalf of the parties hereto.

The petition alleges that on November 18, 1940, the relator was indicted in the Circuit Court of Lincoln County on a charge of burglary; that upon his plea of guilty to said indictment he was sentenced to life imprisonment in the penitentiary; that the sentence was imposed by a special judge on December 2, 1940; that said special judge was without jurisdiction to so sentence him because there was no order of record showing his election as special judge until December 27, 1940; and that he was without assistance of counsel.

This Court obtained from the office of the Clerk of the Circuit Court of Lincoln County certified copies of the indictments and orders pertaining to the trial and sentencing of the relator. It clearly appears that there were two indictments returned on the same day, one charging him with the crime of burglary as alleged in the petition and one charging burglary and three prior felony convictions.

The relator's claim that he was sentenced to life imprisonment on a plea of guilty to the burglary indictment is without merit. It is clearly shown in this case that a second indictment was returned on the same day, charging not only the burglary but three prior felony convictions under which, as the law was then written, he could have been sentenced to life imprisonment as an habitual criminal. There is a strong presumption in favor of the regularity of the proceeding and the burden is on the person who alleges irregularity to show affirmatively that such irregularity existed. See 7 M.J., Evidence, § 26; 20 Am.Jur., Evidence, § 168; 30A Am.Jur., Judgments, § 28; 37 Am.Jur., Motions, § 33; Bowles v. Mitchell, W.Va., 120 S.E.2d 697; Rollins v. Daraban, 145 W.Va. 178, 113 S.E.2d 369; State ex rel. Black v. Pennybacker, 144 W.Va. 612, 110 S.E.2d 265; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 78 S.E.2d 456. There being no such affirmative showing by the relator, we must assume and so hold that the court sentenced the relator on the indictment charging burglary and three prior felony convictions. $The principal question involved in this proceeding is whether the special judge who imposed the sentence had jurisdiction to do so. The relator alleges in his petition, and it is not denied by the respondent, that the order sentencing him to life imprisonment in the penitentiary was dated and entered of record on December 2, 1940. By a stipulation signed by counsel for the parties hereto a certified copy of the order electing the special judge in this case was made a part of the record. According to the certification by the Clerk of the Circuit Court of Lincoln County, that order was entered in the law order book in said clerk's office on December 27, 1940. This stipulation supports the allegation in the petition relative to the election of the special judge.

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