State ex rel. Beckett v. Boles

• Decision Date: 24 November 1964
• Docket Number: No. 12342,12342
• Citation: 138 S.E.2d 851,149 W.Va. 112
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Franklin H. BECKETT v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 851

138 S.E.2d 851

149 W.Va. 112

STATE ex rel. Franklin H. BECKETT v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12342.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 6, 1964.

Decided Nov. 24, 1964.

Syllabus by the Court.

1. The jurisdiction of a trial court to sentence to further confinement in the penitentiary a person who is convicted of an offense and is subject to confinement in the penitentiary for such offense depends upon and is derived from Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, known as the habitual criminal statute.

2. The provisions of Section 19, Article 11, Chapter 61, Code, 1931, as amended, which include the requirement that the defendant, before he acknowledges his identity as the person who has been previously convicted, must be duly cautioned, are mandatory and must be complied with fully for the imposition of a valid sentence of further confinement under the statute.

3. 'A person convicted of a felony cannot be sentenced under the habitual criminal statute, Code 61-11-19, unless there is filed by the prosecuting attorney with the court at the same term, and before sentencing, an information as to the prior conviction or convictions and for the purpose of identification the defendant is confronted with the facts charged in the information and cautioned as required by the statute.' Point 3, syllabus, State ex rel. Housden v. Adams, 143 W.Va. 601 .

4. When it affirmatively appears from the record in the trial of a criminal case on an indictment for a felony punishable by confinement in the penitentiary for a period less than life imprisonment that the trial court entered a judgment imposing a sentence of life imprisonment under the habitual criminal statute, Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, but did not fully comply with the provisions of that statute by failing to cause the defendant in such case, when confronted with the charges in the information, to be duly cautioned at the same term of court at which he was convicted of the principal offense charged in the indictment, the added portion of the sentence, in excess of the maximum statutory sentence for such principal offense, is void for the reason that the trial court lacked jurisdiction to impose such additional sentence.

5. A judgment which is wholly void, or is void in part, is subject to collateral attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding.

6. An unreversed judgment which remands the petitioner after a hearing in a habeas corpus proceeding is conclusive upon a subsequent application based upon the same facts.

7. A petitioner in a habeas corpus proceeding, upon whom punishment by imprisonment for an invalid additional period has been improperly imposed under the habitual criminal statute, may be relieved of the void portion of the punishment, but will not be discharged from serving the maximum term provided by statute for the principal offense.

Phillips & Holden, John D. Phillips, Jr., Wheeling, for relator.

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

HAYMOND, President:

This is an original habeas corpus proceeding instituted in this Court in June 1964. The petitioner, Franklin H. Beckett, who is presently confined in the penitentiary of this State by virtue of a sentence of life imprisonment as a habitual criminal imposed by the Circuit Court of Wayne County, West Virginia, by its final judgment rendered December 5, 1960, seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from such confinement.

On June 16, 1964, this Court awarded a writ returnable September 2, 1964, at which time, by agreement of counsel representing the respective parties and by leave of this Court, this proceeding was continued until October 6, 1964. At that time the proceeding was heard and submitted for decision upon the petition and its exhibits, the demurrer and the answer of the defendant and its exhibits, and the written briefs and the oral

In October 1960 the petitioner was arrested

On October 1960 the petitioner was arrested in a part of the City of Huntington located in Wayne County, West Virginia, and charged with the crime of unlawfully breaking and entering a storehouse on Piedmont Road in that city. On November 21, 1960 he was indicted for that offense by the grand jury of Wayne County and between that date and December 5, 1960 he was removed from the Cabell County jail to the Wayne County jail.

The Judge of the Circuit Court of Wayne County appointed an attorney practicing before the courts in Cabell and Wayne Counties to represent the petitioner and requested the prosecuting attorney of the county to notify the attorney of his appointment. After his appointment the attorney talked with the petitioner for a period of about thirty minutes while he was confined in the Cabell County jail. In the conversation the petitioner frankly admitted that he was guilty of the charge for which he was indicted, that he was on parole at the time of the offense, and that he had been convicted of felonies on at least two occasions in addition to the conviction upon which he had been paroled. Most of the conversation related to the probability that if the petitioner was convicted of the principal offense he would be sentenced to life imprisonment under the habitual criminal statute. The attorney felt that there was no defense to the pending indictment and informed the petitioner that in his opinion hs only chance to escape the consequences of the prior convictions would be to plead guilty to the principal offense and to await the possibility that the prosecuting attorney might not charge him with the prior convictions. The attorney subsequently conferred with the arresting and investigating officers who confirmed the petitioner's admission that he had committed the principal offense and the attorney also learned from the prosecuting attorney that the petitioner had signed a confession in which he admitted his guilt.

After the petitioner was removed to the Wayne County jail the attorney again conferred with him for a period of from twenty to forty minutes. He then went with the petitioner to the courtroom where the petitioner was arraigned before the judge of the circuit court and entered a plea of not guilty. A jury was empaneled and testimony was offered by a witness in behalf of the State. During the testimony of the witness the attorney advised the court that the petitioner desired to withdraw his plea of not guilty, which was done, and his plea of guilty was entered. The prosecuting attorney then filed an information which charged the petitioner with three prior felony convictions and invoked the provisions of the habitual criminal statute, Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended.

According to recitals in the judgment imposing the sentence of life imprisonment the court inquired of the petitioner, after the information was filed, if he were the same person who was charged in the information of having been convicted and sentenced for the offenses stated in the information and the petitioner, after conferring with his attorney and after being duly cautioned of his rights, acknowledged in open court that he was the same person who had been previously convicted of the three offenses set forth in the information. The court then inquired of the petitioner if he had anything further to say or reason to offer why judgment should not be pronounced against him upon his plea and his acknowledgment that he was the same person mentioned in the information and to that inquiry the petitioner said nothing.

With respect to the foregoing recitals in the judgment it appears from a transcript of the proceedings taken in connection with the entry of the plea of guilty by the defendant and the action of the court upon the information, filed as an exhibit with the petition, that the information charged that the petitioner in 1953 was sentenced by the United States District Court at Chillicothe, Ohio, to confinement for a period of three years in a federal reformatory for the commission of a felony; that the petitioner in 1955 in the State of Indiana was sentenced to confinement of two to five years in the state reformatory for the commission of a felony; and that the petitioner had been convicted in the Circuit Court of Logan County, West Virginia, for the crime of unlawfully breaking and entering and was sentenced to vonfinement in the West Virginia Penitentiary for a period of one year to ten years. The transcript also shows that in connection with the information the judge of the Circuit Court of Wayne County, without explaining the purpose of the information or his inquiries to the petitioner, merely addressed him as Mr. Beckett and asked him in separate questions if he was the same Franklin Beckett who had been convicted and sentenced for each of the offenses set forth in the information and that after the petitioner had separately made an affirmative answer to each of the questions, the circuit court immediately sentenced the petitioner to be imprisoned during his natural life in the penitentiary of this State and committed him to the custody of the sheriff until he should be taken to that institution.

Before the commencement of this proceeding in this Court the petitioner instituted a habeas corpus proceeding in the District Court of the United States for the Northern District of West Virginia, entitled Beckett v. Boles, the opinion in which is reported in 218 F.Supp. 692. Upon the hearing of that proceeding in June 1963 that court held that the judgment of conviction of the principal offense in the Circuit Court of Wayne County, for which the petitioner was indicted in November 1960 of breaking and entering, was without constitutional infirmity, and denied his petition for...