State ex rel. May v. Boles

CourtSupreme Court of West Virginia
Citation139 S.E.2d 177,149 W.Va. 155
Docket NumberNo. 12365,12365
PartiesSTATE ex rel. Clarence MAY v. Otto C. BOLES, Warden, West Virginia Penitentiary.
Decision Date08 December 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.

2. Courts indulge every reasonable presumption against waiver of a fundamental constitutional right and will not presume acquiescence in the loss of such fundamental right.

3. 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.

4. 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.

5. One accused of a crime may waive his right to the assistance of counsel but such waiver must be made intelligently and understandingly.

6. To the extent that the holdings and statements in the opinions in State v. Kellison, 56 W.Va. 690 ; State v. Briggs, 58 W.Va. 291 ; State v. Yoes, 67 W.Va. 546 ; and Wade v. Skeen, 140 W.Va. 565 , are inconsistent or in conflict with the holdings in Points 1 and 3 of the syllabus of this case, such holdings are overruled and such statements are disapproved.

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

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

CAPLAN, Judge:

The petitioner, Clarence May, invoked the original jurisdiction of this Court by filing herein his petition praying for a writ of habeas corpus. The writ was granted, returnable on September 15, 1964, and counsel was appointed to represent the petitioner in this proceeding. Upon the joint motion of counsel a continuance was granted to October 13, 1964, and finally to November 10, 1964. On the latter date the respondent, pursuant to the writ issued by this Court, produced the petitioner. The Attorney General, appearing for the respondent, filed a return and demurrer to the petition. Also filed were the affidavit of the petitioner and the affidavits of Edward F. Smith and John Paul Browning. The case was thereupon submitted for decision upon the aforesaid pleadings and affidavits and upon the arguments and briefs of counsel.

It appears from the pleadings filed in this proceeding that on May 21, 1962, the petitioner was indicted by the Grand Jury of the Circuit Court of Logan County for the crime of grand larceny; that on May 25, 1962, the petitioner entered a plea of guilty to the charge in the indictment; and that on June 28, 1962, the court sentenced the prisoner to confinement in the penitentiary for a term of from one to ten years. It is alleged by the petitioner, and is undisputed by the respondent, that at no time during such proceedings in the trial court was he afforded the assistance of counsel, nor did the court in any manner inform him of his right to such assistance.

In his affidavit filed in support of his petition, Clarence May, after setting out the above matters, says that he was not represented by counsel at any stage of the proceedings; that he did not have the financial means to employ counsel; that he did not know that he could request the aid of an attorney; that he did not knowingly waive his right to counsel; that he was not informed by the judge, prosecuting attorney or any other person that he could, upon request, have an attorney to represent him; that he had only a seventh grade education; that had he known of his right to the assistance of counsel he would have requested such assistance; and that had he been so represented he believes that the outcome of his case would have been substantially altered. The affidavits of Edward F. Smith and John Paul Browning support the allegations of the petitioner.

It is here contended by the petitioner that the failure of the trial court to provide him with the assistance of counsel deprived him of his constitutional rights under the due process clause of the Fourteenth Amendment to the Constitution of the United States. The respondent, on the other hand, says that the only right guaranteed to the petitioner was the right to demand the assistance of counsel; that he made no such demand; and that his failure to do so and his entry of a guilty plea to the charge against him constituted a waiver of that right. Thus, the question is squarely presented as to whether the due process clause of the Fourteenth Amendment requires that counsel be appointed to represent an indigent defendant accused in a state criminal prosecution.

The decision in this proceeding is controlled by the recent decision of the Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. In that case the Court has unequivocally laid down the rule that the right to the assistance of counsel is a fundamental right, essential to a fair trial, and that by reason thereof the safeguard provided by the Sixth Amendment is made obligatory upon the states under the due process clause of the Fourteenth Amendment. By adopting this rule the Court has settled and laid to rest a continuing source of controversy and litigation which has taken place in both state and federal courts.

It has been settled since 1938, when the Court decided Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357, that one charged with a crime in a federal court has a constitutionally protected right to the assistance of counsel. Therein the Court held that since the Sixth Amendment constitutionally entitles one charged with a crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. The Gideon case imposes a like rule upon criminal prosecutions in state courts.

As early as 1932, in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, the Supreme Court recognized that under certain circumstances the failure to furnish the assistance of counsel to indigent defendants charged with a crime in a state court constituted an infringement of the due process clause of the Fourteenth Amendment. However, in 1942, in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, the Court, in a six to three decision, held that 'appointment of counsel is not a fundamental right, essential to a fair trial.' It concluded therefrom that the right to the assistance of counsel in a state criminal prosecution is not a right afforded the protection of the due process clause of the Fourteenth Amendment.

The rule laid down in Betts v. Brady, supra, continued to reflect the law in relation to one's constitutional right to counsel in state courts. There were thereafter numerous deviations from this rule, however, depending upon certain factual situations arising in the cases. Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367; Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. These deviations tended to show that the Court was in the process of reconsidering its decision in Betts v. Brady, supra. In 1963 the Supreme Court took the final step, in Gideon v. Wainwright, supra, wherein it expressly overruled the Betts case. Since that landmark decision the law is settled that an accused in a state court has a constitutionally protected right to the assistance of counsel.

By reason of the vital departure taken by the Supreme Court in the Gideon case, we believe that it is advisable to quote certain language which reflects the rationale of the Court in arriving at its decision. Therein the Court said: 'The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant's need for a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama:

"The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his...

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  • State v. Reedy, s. 17019 and 17020
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    ...one accused of a crime to the assistance of counsel is a fundamental right, essential to a fair trial...." Syl. Pt. 1, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). 2. "A trial court lacks jurisdiction to enter a valid judgment of conviction against one accused who was d......
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