State ex rel. Owens v. King, 12452

• Decision Date: 29 June 1965
• Docket Number: No. 12452,12452
• Citation: 149 W.Va. 637,142 S.E.2d 880
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Frank OWENS v. Frank B. KING, Warden, Medium Security Prison.

Page 880

142 S.E.2d 880

149 W.Va. 637

STATE ex rel. Frank OWENS v. Frank B. KING, Warden, Medium Security Prison.

No. 12452.

Supreme Court of Appeals of West Virginia.

Submitted May 18, 1965.

Decided June 29, 1965.

Syllabus by the Court

1. '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 v. Boles, Warden, W. Va., .

2. '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.' Point 1 Syllabus, State ex rel. Clark v. Adams, Warden, 144 W.Va. 771, 111 S.E.2d 336, 89 A.L.R.2d 528.

Daniel D. Dahill, Logan, for relator.

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

CALHOUN, Judge:

Frank Owens, a prisoner in the West Virginia Medium Security Prison, has presented to this Court a petition in habeas corpus by which he seeks to be released from his imprisonment. A writ was awarded and made returnable on May 18, 1965, and an attorney was appointed by the Court to represent the prisoner. The respondent filed a return and a demurrer to the petition. The matter was submitted to the Court on the pleadings, an affidavit made by the prisoner and upon briefs and oral arguments of counsel.

Frank Owens, having been represented by counsel appointed by the trial court, was convicted by a jury in the Circuit Court of Logan County on September 26, 1961, of a charge of grand larceny. During the same term of court and before sentence was imposed pursuant to the conviction of grand larceny, the prosecuting attorney presented to the trial court an information charging that the prisoner had been convicted on January 16, 1959, in the Circuit Court of Logan County upon his plea of guilty to an indictment charging grand larceny and that he had been sentenced on February 7, 1959, to confinement in the state penitentiary, for an indeterminate period of one to ten years pursuant to the conviction upon his plea of guilty.

Being arraigned upon the information, the prisoner acknowledged in open court that he was the same person who had been previously convicted of a felony as charged in the information. The prisoner was thereupon sentenced to confinement in the state penitentiary for an indeterminate period of one to fifteen years, which sentence included one to ten years for the principal offense and an additional period of five years, pursuant to the habitual criminal statutes of this state, for the prior conviction upon a plea of guilty in 1959.

The prisoner alleges, in connection with his plea of guilty to the grand larceny indictment in 1959, that he was then an indigent person; that he was not represented by counsel; that he was financially unable to employ counsel; that he was not aware of his constitutional right to have counsel appointed by the court to represent him; and that the trial court did not inform him of his constitutional right to the assistance of counsel before the plea of guilty was entered. The trial court orders are silent in relation to the matters alleged by the prisoner; the respondent has not been able to controvert such allegations or to prove them to be untrue; and, therefore, the respondent admits that, under prior decisions of this Court and of the Supreme Court of the United States, this Court must hold that the 1959...