State ex rel. Massey v. Boles, 12407

• Decision Date: 09 March 1965
• Docket Number: No. 12407,12407
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. George H. MASSEY, Jr. v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 608

140 S.E.2d 608

149 W.Va. 292

STATE ex rel. George H. MASSEY, Jr. v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12407.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 16, 1965.

Decided March 9, 1965.

Syllabus by the Court

1. The general rule is that there is a presumption of regularity of court proceedings it remains until the contrary appears and the burden is on the person who alleges such irregularity to affirmatively show it.

2. Where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law, with the exception of the right to the assistance of counsel which is a fundamental right specifically provided for in the State and Federal Constitutions, and this right will not be presumed to have been waived.

C. R. Hill, Jr., Fayetteville, for relator.

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

BERRY, Judge.

The petitioner, George H. Massey, Jr., filed this habeas corpus proceeding in this Court under its original jurisdiction, and seeks to have the sentence imposed upon him under the recidivist statute corrected. It is the contention of the petitioner that he was not duly cautioned before the imposition of the additional sentence of five years as required by the mandatory provisions of Code, 61-11-19, as amended. A writ was issued by this Court on December 11, 1964, returnable February 16, 1965, and counsel was appointed to represent the petitioner.

The defendant filed a return and demurred to this petition. The case was submitted for decision upon arguments and briefs on February 16, 1965.

The petitioner was indicted at the July, 1959, term of the Circuit Court of Fayette County, West Virginia, for the crime of murder. He pleaded guilty to second degree murder, which carries a sentence of five to eighteen years. After being sent to the Weston State Hospital for psychiatric examination and being found to know right from wrong, he was returned to the Circuit Court of Fayette County and the prosecuting attorney filed an information setting forth a previous conviction for a felony in Kanawha County in 1954, all of which was done at the same term of Court. The trial court ascertained that the petitioner was the same person mentioned in the information, and thereupon sentenced him to five to twenty-three years in the penitentiary.

The court order is silent as to whether the petitioner was duly cautioned, and the question is presented as to whether it can be presumed that the trial court performed its duty as required by law before sentencing the petitioner. It is the contention of the petitioner that it must affirmatively appear from the record that he was duly cautioned, whereas, the defendant contends that 'duly cautioned' is a statutory requirement and not a constitutional one such as the right to the assistance of counsel.

It has been held that the right of an accused to the assistance of counsel is a fundamental right, the denial of which constitutes a violation of specific provisions of both the State and Federal Constitutions, that such right will not be presumed to have been waived, and that it must affirmatively appear from the record that such right was fully explained to the accused by the trial court. State ex rel. May v. Boles, Warden, W.Va., 139 S.E.2d 177. However, it has not been held that the statutory right to be 'duly cautioned' in a recidivist proceeding must affirmatively appear from the record, and the May case only qualifies the general rule which presumes regularity of court proceeding to the constitutional right to the assistance of counsel.

The petitioner relies on the recent case of State ex rel. Beckett v. Boles, W.Va., 138 S.E.2d 851, to support his position, but the Beckett case merely held that where it affirmatively appears from a transcript of the original trial proceeding that the accused was not 'duly cautioned' in a recidivist proceeding the additional sentence imposed under the recidivist statute was void.

In the case at bar no affidavit or other evidence was submitted to be considered by the court. The petition contains a statement that the trial court failed to duly caution the petitioner and inform him of his rights. The return filed by the defendant answers the petition and states that the petitioner is legally confined in the West Virginia State Penitentiary. The demurrer filed by the defendant states that the petition filed in this proceeding is not sufficient in law because it does not affirmatively appear from the record of petitioner's trial that the trial court did not fully comply with the provisions of the statute in question by failing to duly caution him.

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