State ex rel. Bullett v. Boles

• Decision Date: 06 July 1965
• Docket Number: No. 12480,12480
• Citation: 143 S.E.2d 133,149 W.Va. 700
• Court: West Virginia Supreme Court
• Parties: STATE er rel. James E. BULLETT v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 133

143 S.E.2d 133

149 W.Va. 700

STATE er rel. James E. BULLETT v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12480.

Supreme Court of Appeals of West Virginia.

Submitted June 29, 1965.

Decided July 6, 1965.

Syllabus by the Court

1. When the record in a criminal proceeding in which a person was sentenced to life imprisonment under the recidivist statute of this State is silent as to whether he was duly cautioned, it will be presumed, under the general rule, that the court performed its duty in every respect as required by law, except as to the matter of the assistance of counsel which, being a fundamental constitutional right, will not be presumed to have been waived.

2. '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.' Point 5, syllabus, State ex rel. Beckett v. Boles, W.Va. .

3. The denial of the fundamental right of the defendant to the assistance of counsel in a criminal proceeding applies to and invalidates any prior conviction of an offense within the meaning of a recidivist statute, and such conviction and any sentence of imprisonment imposed upon it, being null and void because of such denial, can not justify or support the imposition of any additional punishment under such statute for such prior conviction.

4. A person imprisoned under a void sentence of imprisonment for life, who has fully served the maximum sentence of imprisonment which should have been imposed as provided by law of two years to ten years for the principal offense of which he was convicted and an additional period of five years under the recidivist statute of this State, or a total maximum period of two years to fifteen years, will be released from custody by a writ of habeas corpus.

Katherine A. Yost, Charleston, for relator.

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

HAYMOND, Judge.

This is an original habeas corpus proceeding instituted in this Court on June 21, 1965. The petitioner, James E. Bullett, seeks a writ to release him from the penitentiary of this State where he is now confined as a prisoner under a sentence of life imprisonment imposed by the final judgment of the Circuit Court of Morgan County, West Virginia, rendered September 4, 1947.

On June 21, 1965, this Court issued a writ returnable June 29, 1965 and appointed counsel to represent the petitioner in this proceeding. Upon the return day of the writ the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, produced the petitioner in open court in obedience to the command of the writ, and filed his answer; and this proceeding was submitted for decision upon the petition and its exhibits, the answer and its exhibits, and the written brief and the oral argument of the attorney for the petitioner.

According to the record the petitioner entered a plea of guilty to an indictment for the crime of burglary at the April 1938 term of the Circuit Court of Morgan County, West Virginia, and on April 5, 1938, he was sentenced to confinement in the penitentiary of this State for an indeterminate period of one year to five years; on September 2, 1941, in the Circuit Court of Morgan County, West Virginia, the petitioner also entered a plea of guilty to an indictment for felonious assault and he was sentenced to confinement in the penitentiary of this State for an indeterminate period of one year to five years; and on September 4, 1947, the petitioner was convicted by a jury in the Circuit Court of Morgan County, West Virginia, on an indictment for felonious assault and at that time the prosecuting attorney filed an information charging the petitioner with the 1938 and 1941 felony convictions and the petitioner was then sentenced to imprisonment for life in the penitentiary of this State under the habit ual criminal statute, Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended.

The petitioner contends that the sentence of life imprisonment is unconstitutional, null and void for the reason that he was denied the assistance of counsel to defend him in the criminal proceedings in 1938 and 1941.

The record indicates and the defendant asserts that the petitioner was represented by counsel in the criminal proceeding in 1941 but the record is silent as to whether he was represented by counsel or whether he was advised as to his right to the assistance of counsel and intelligently waived such right in the criminal proceeding in 1938. This is conceded by the defendant. The record also shows that the eptitioner was represented by counsel upon the trial of the principal offense in September 1947 but it does not show whether the petitioner was duly cautioned as required by the recidivist statute of this State.

Though the record is silent as to whether the petitioner was duly cautioned, it will be presumed, under the general rule, that the court performed its duty in every respect as required by law, except as to the matter of the assistance of counsel which, being a fundamental constitutional right, will not be presumed to have been waived. State ex rel. Pettery v. Boles, W.Va., 139 S.E.2d 263; State ex rel. Massay v. Boles, W.Va., 140 S.E.2d 608; State ex rel. Arbraugh v. Boles, W.Va., 139 S.E.2d 370; State ex rel. Browning v. Boles, W.Va., 139 S.E.2d 263; State ex rel. Stumbo v. Boles, W.Va., 139 S.E.2d 259; State ex rel. Hicklin v. Boles, W.Va., 139 S.E.2d 182; State ex rel. May v. Boles, W.Va., 139 S.E.2d 177; State ex rel. Powers v. Boles, W.Va., ...