State ex rel. Clark v. Adams, 11075

Decision Date17 November 1959
Docket NumberNo. 11075,11075
CourtWest Virginia Supreme Court
Parties, 89 A.L.R.2d 528 STATE ex rel. Donald Edward CLARK v. D. E. ADAMS, Warden.

Syllabus by the Court

1. A person serving a sentence in a penitentiary, who seeks relief by habeas corpus on the ground that the appointment by the court of an alleged incompetent attorney to conduct his defense in a criminal proceeding amounts to a denial of his right to the assistance of counsel guaranteed by Section 14, Article III of the Constitution of this State and by the Sixth Amendment to the Constitution of the United States, has the burden of establishing by proof that the appointment of such counsel constituted a denial of his constitutional right to the assistance of counsel.

2. A habeas corpus proceeding is not a substitute for a writ of error or other appellate process, and error in a final judgment in a criminal case which renders such judgment voidable merely but not void, can not be considered or corrected in such proceeding; but if a sentence of imprisonment under which a person is confined is void, in whole or in part, it may be reached and controlled in a habeas corpus proceeding.

3. A valid sentence of imprisonment may be entered upon a plea of nolo contendere to an indictment for a felony in any criminal case in which the death penalty may not be inflicted, and such judgment of imprisonment can not be considered or controlled in a habeas corpus proceeding on the ground that it was entered upon such plea.

Charles R. McElwee, Charleston, for relator.

W. W. Barron, Atty. Gen., Clement R. Bassett, Asst. Atty. Gen., for respondent.


This is an original habeas corpus proceeding instituted in this Court, in which the petitioner, Donald Edward Clark, seeks a writ to require the defendant, D. E. Adams, Warden of the West Virginia Penitentiary, to release the petitioner from the penitentiary where he is now confined and is serving an indeterminate sentence of from one year to fifteen years, pronounced by the Circuit Court of Wood County, by its final judgment entered April 24, 1959.

Upon the issuance of the writ this Court appointed counsel to represent the petitioner in this proceeding and on September 8, 1959, the date to which the writ was returnable, the defendant brought the petitioner in person before this Court and filed his answer to the petition. By agreement of the parties and by leave of this Court, this proceeding was continued until September 29, 1959, at which time it was submitted for decision upon the petition, the answer of the defendant, the depositions of witnesses, and the written briefs and the oral arguments of counsel in behalf of the respective parties.

The petitioner challenges the validity of the judgment sentencing him to confinement in the penitentiary and seeks the relief for which he prays on these two principal grounds: (1) That the petitioner was denied his constitutional right to the assistance of counsel by the circuit court in the trial of an indictment, designated as No. 1345, charging him with the crime of feloniously and burglariously breaking and entering a certain dwelling house in the night time in Parkersburg, in Wood County, West Virginia, with intent to steal; and (2) that the judgment sentencing him to confinement in the penitentiary for the foregoing offense is void because entered upon his plea of nolo contendere to the foregoing indictment.

Many of the material facts are contained in a written stipulation agreed to and signed by the attorneys representing the respective parties to this proceeding. Other facts appear from copies of complaints, a warrant, indictments, a capias, and court orders which are filed as exhibits.

The petitioner was arrested by members of the Parkersburg Police Department on July 27, 1958, upon charges of burglary and attempted rape of a six year old child. He was not served with a warrant which charged him with burglary but he was served with a warrant which charged him with attempted rape; and on July 28, 1958, he was taken before the Judge of the Municipal Court in Parkersburg who set August 6, 1958 as the date for a preliminary hearing and fixed the amount of the bond to be given by the petitioner. Upon the petition of the Sheriff of Wood County the circuit court of that county, at a hearing to determine the mental condition of the petitioner, committed him to the Weston State Hospital on August 1, 1958. Subsequently the circuit court, on the basis of a report by the superintendent of the hospital, found that the petitioner was legally responsible for the criminal acts with which he was charged and ordered the superintendent to deliver the petitioner to the sheriff and that the sheriff confine the petitioner in the Wood County Jail.

While the petitioner was in the hospital two felony indictments were returned against him on October 13, 1958. One indictment No. 1345 charged the petitioner with burglary and the other indictment No. 1346 charged him with attempted rape upon a female child under the age of sixteen years. A capias was issued upon both indictments and on March 27, 1959, the petitioner was brought before the circuit court.

On March 30, 1959, accompanied by an attorney previously appointed by the court to represent him, the petitioner appeared and entered a plea of not guilty to the indictment which charged him with the crime of burglary and on April 13, 1959, he again appeared, also accompanied by his attorney, and, by permission of the court, withdrew his plea of not guilty, entered a plea of nolo contendere, and moved the court to grant him probation. On April 20, 1959, the indictment charging the petitioner with attempted rape was dismissed. On April 24, 1959, the petitioner, accompanied by his attorney, again appeared and at that time the court refused to place him on probation and sentenced him to be confined in the penitentiary for a period of not less than one year or more than fifteen years and recommended that the petitioner serve his sentence in the Medium Security Prison at Huttonsville.

Though originally the circuit court appointed the attorney to represent the petitioner in connection with the indictment for burglary, the attorney so appointed, on the day following his appointment was, with the knowledge and the consent of the petitioner, employed and retained to represent him by relatives of the petitioner who paid the attorney for his services in the matter.

The petitioner has repeatedly insisted and stated under oath that during the several consultations between him and his attorney in connection with his plea to the indictment the attorney referred to the indictment as an indictment for the offense of breaking and entering and informed the petitioner that upon a plea of nolo contendere the court could not pronounce a sentence of imprisonment for more than from one year to ten years. The sworn statement of the attorney was that he has no recollection whatsoever of advising the petitioner that the penalty for the offense charged in the indictment was a sentence of not less than one year or more than ten years, although he admits that he may have so informed the petitioner. It is clear, however, from the sworn statements of the petitioner that the indictment was read to him, that he knew it was an indictment for burglary, and that the penalty for that offense was an indeterminate sentence of from one year to fifteen years in the penitentiary. It also clearly appears that the attorney who represented the petitioner was fully qualified, by training and experience, to represent the petitioner in the criminal proceeding, that he consulted with the petitioner on from five to ten different occasions in connection with his defense and his plea to the indictment, that he was painstaking and diligent, that his professional conduct at all times was such as he considered to be for the best interest and the protection of the rights of the petitioner, and that the petitioner and the members of his family were completely satisfied with the services rendered by the attorney until the motion of the petitioner that he be granted probation was denied and the sentence of from one year to fifteen years was pronounced by the court. It also appears that the dismissal of the other indictment against the petitioner was due to the efforts and services of the attorney for the petitioner. The reasonable inference is that petitioner and his attorney expected, or at least entertained the hope, that upon the plea of the petitioner of nolo contendere the circuit court would grant the motion of the petitioner that after the sentence was pronounced he would be placed on probation.

Sworn statements of the judge of the circuit court were that he did not at any time during the course of the proceeding upon the indictment for burglary tell the petitioner that he would be sentenced to an indeterminate term of not less than one year or more than ten years upon the plea of nolo contendere; that he told the petitioner that if he entered such plea he would be subject to the same punishment and sentence as if he entered a plea of guilty and that the plea of nolo contendere was tantamount to a plea of guilty; that he asked the petitioner if he understood the effect fo such plea and the petitioner replied that he did; that when he petitioner changed his plea from not guilty to nolo contendere he asked the petitioner at the bar of the court if there had been any promise of leniency or any threat to induce him to change his plea and that the petitioner replied that there had been no such promise or threat; that he inquired of the petitioner if he had read the indictment and understood the charge against him, whether he had discussed it with his attorney, and whether he knew the penalty in connection with the offense charged; and that the petitioner gave affirmative answers to all such...

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22 cases
  • Myers v. Frazier
    • United States
    • West Virginia Supreme Court
    • June 27, 1984
    ...of the case may be less favorable to the defendant than that contemplated by the plea agreement."10 In State ex rel. Clark v. Adams, 144 W. Va. 771, 111 S.E.2d 336, 89 A.L.R.2d 528 (1959), cert. denied, 363 U.S. 807, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960), we discussed the nolo contendere ple......
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    • January 12, 1966
    ...v. Boles, 148 W.Va. 229, 134 S.E.2d 576, certiorari denied, 375 U.S. 25, 84 S.Ct. 89, 11 L.Ed.2d 43; State ex rel. Clark v. Adams, 144 W.Va. 771, 111 S.E.2d 336, 89 A.L.R.2d 528, certiorari denied, 363 U.S. 807, 80 S.Ct. 1242, 4 L.Ed.2d 1149; State ex rel. Lovejoy v. Skeen, 138 W.Va. 901, 7......
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    • March 19, 1974
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