State ex rel. Hill v. Boles, 12490
| Decision Date | 27 July 1965 |
| Docket Number | No. 12490,12490 |
| Citation | 149 W.Va. 779,143 S.E.2d 467 |
| Court | West Virginia Supreme Court |
| Parties | STATE er rel. Harry W. HILL v. Otto C. BOLES, Warden, etc. |
Syllabus by the Court
'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 the 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.' Point 1 syllabus, State ex rel. Whytsell, Jr. v. Boles, Warden, etc. W. Va. .
Rex Burford, Charleston, for relator.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.
In this original proceeding of habeas corpus, the relator, Harry W. Hill, alleges in his petition, as amended by permission of the Court, that, on February 20, 1952, he entered his plea of guilty to an indictment pending in the Intermediate Court of Kanawha County, charging an offense of attempted rape, which, under Code, 1931, 61-11-8, entails a sentence of not less than one nor more than five years; that an information was thereupon filed pursuant to the habitual criminal or recidivist statute of this state, charging that the prisoner had been previously convicted of two felonies; that he admitted in open court that he was the same person who had been previously convicted of two felonies as alleged in the information, one in the Intermediate Court of Kanawha County, West Virginia, and one in the State of New York; that he was thereupon sentenced to the state penitentiary for life, pursuant to the recidivist statute; that he was denied his constitutional right to assistance of counsel in connection with the prior conviction in the Intermediate Court of Kanawha County; and that, therefore, that conviction is void.
The relator alleges that, in these circumstances, he has served the maximum sentence authorized by law and that he is entitled to be discharged from his present confinement in the state penitentiary.
A return was filed in this Court in behalf of the respondent, Otto C. Boles, warden of the state penitentiary. No factual dispute is presented by the habeas corpus petition, as amended, and the return. From these pleadings it appears that the relator, on February 20, 1952, entered a plea of guilty in the Intermediate Court of Kanawha County to an indictment charging an attempt to commit statutory rape; that thereupon, at the same term of court and before sentence was pronounced pursuant to the plea of guilty, the prosecuting attorney filed an information charging that, on January 31, 1940, the relator entered pleas of guilty in the Intermediate Court of Kanawha County to the two indictments charging attempts to commit rape; and that he was duly sentenced to confinement in the state penitentiary pursuant to such pleas of guilty. The information further alleged that on August 25, 1943, the relator entered a plea of guilty to an indictment for a felony in the Court of General Sessions of the County of New York, in the State of New York, and that he was duly sentenced pursuant to that plea.
Apparently it is conceded that, in conformity with prior decisions of this Court, the two pleas of guilty entered on January 31, 1940, in the Intermediate Court of Kanawha County to two separate felony indictments, if valid, may be considered only as a single prior felony conviction within the meaning of the recidivist statute. State ex rel. Stover v. Riffe, 128 W.Va. 70, 35 S.E.2d 689; Dye v. Skeen, 135 W.Va. 90, 62 S.E.2d 681, 24 A.L.R.2d 1234; State ex rel. Medley v. Skeen, 138 W.Va. 409, 76 S.E.2d 146.
In the return filed in behalf of the respondent, it is admitted that the record is silent on the question whether the relator was represented by counsel, whether he was advised of his right to assistance of counsel and whether he waived such right in connection with his donvictions on his pleas of guilty in the Intermediate Court of Kanawha County on January 31, 1940. The relator alleges in his petition that, in connection with such...
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