State ex rel. Hicklin v. Boles

• Decision Date: 08 December 1964
• Docket Number: No. 12368,12368
• Citation: 149 W.Va. 163,139 S.E.2d 182
• Parties: STATE ex rel. William HICKLIN, v. Otto C. BOLES, Warden, W. Va. Penitentiary.
• Court: West Virginia Supreme Court

Page 182

139 S.E.2d 182

149 W.Va. 163

STATE ex rel. William HICKLIN, v. Otto C. BOLES, Warden, W. Va. Penitentiary.

No. 12368.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 10, 1964.

Decided Dec. 8, 1964.

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.' Syl. Pt. 1, State ex rel. May v. Boles, 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.' Syl. Pt. 3, State ex rel. May v. Boles, W.Va. .

3. 'The general rule which presumes the regularity of court proceedings is subject to the qualification that, where the record is silent on the question, it can not be presumed that the accused waived his right to the assistance of counsel.' Syl. Pt. 4, State ex rel. May v. Boles, W.Va. .

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

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

BROWNING, Judge.

Petitioner, William Hicklin, filed his original petition for a writ of habeas corpus ad subjiciendum in this Court on July 27, 1964, alleging his confinement in the penitentiary of this state pursuant to a sentence of life imprisonment imposed in the Circuit Court of Fayette County on January 19, 1940, and asserting such confinement to be illegal on the grounds that he was sentenced without having the benefit of counsel and was not duly cautioned by the trial court as to the consequences of his admission that he had twice before been convicted of a felony. Filed as an exhibit with the petition was a copy of the indictment charging petitioner with the offense of forgery on the ___ day of November, 1939, and reciting two previous indictments for the offense of forgery, one committed in May, 1930, and the second in June, 1934, and the court orders pertaining to such previous indictments showing that petitioner, with the assistance of counsel, hed entered pleas of guilty thereto and had been sentenced to the penitentiary. Also filed as an exhibit is a copy of the order of the Circuit Court of Fayette County, entered January 30, 1940, reciting that upon petitioner's arraignment 'for plea thereto says that he is guilty of forgery and of having been twice indicted and convicted for felony offenses prior thereto, as the State in its indictment against him hath alleged, which plea the Court, after due consideration, doth accept. * * *'

This Court, noting that the court order was silent as to any waiver of petitioner's right to counsel in the principal case, issued the writ on July 28, 1964, returnable September 15, 1964, and appointed counsel to represent him in this proceeding. Respondent made his return to the writ alleging petitioner's confinement to be according to law and demurred to the petition on the grounds that the failure of the trial court to inform petitioner of his right to counsel does not violate petitioner's constitutional right to counsel and that, in the absence of a contrary showing, public officers will be presumed to have properly performed the duties imposed upon them by law.

Petitioner, at the time of the hearing filed four additional affidavits in support of his allegations. Two are those of former sheriffs of Fayette...