State ex rel. Pettery v. Boles
Decision Date | 23 March 1965 |
Docket Number | No. 12425,12425 |
Citation | 149 W.Va. 379,141 S.E.2d 80 |
Court | West Virginia Supreme Court |
Parties | STATE ex rel. James Edward PETTERY v. Otto C. BOLES, Warden, W. Va. Penitentiary. |
Syllabus by the Court
The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of which will not be presumed by the failure of the accused to request counsel, by the entry of a guilty plea or by reason of a record silent on the matter of counsel, and the conviction of the defendant in the absence of counsel, or of an affirmative showing of an intelligent waiver thereof, is void.
Amos C. Wilson, Logan, for relator.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.
BROWNING, President.
Upon application of the petitioner, James Edward Pettery, this Court granted a writ of habeas corpus ad subjiciendum on February 1, 1965, returnable March 2, 1965, and appointed counsel to represent the petitioner before this Court. The petition alleges that petitioner, on November 3, 1953, was sentenced to a term of one to ten years in the penitentiary, plus an additional five years for a previous felony conviction, in the Circuit Court of Logan County, when he was without the assistance of counsel. Filed as an exhibit with the petition is a copy of the order of the Circuit Court of Logan County of November 3, 1953, which order is silent upon the question of counsel.
Pursuant to the writ, the respondent appeared by counsel and made his return admitting that the record is silent as to whether petitioner was advised of his right to the assistance of counsel, and, if so, whether he intelligently waived such right. Appended to the return are certified copies of the orders of the Circuit Court of Logan County entered September 18, 1953 and November 3, 1953, respectively, relating to petitioner's plea of guilty to the principal offense and his subsequent admission that he was the same person named in an information filed with the court setting forth a previous felony conviction, both of which orders are silent upon the question of counsel. No further evidence was offered by either party and the case was argued and submitted upon the pleading and exhibits. The trial court's orders being silent as to the matter of counsel and the assertion of the verified petition that petitioner was without counsel at the time he entered his plea of guilty to...
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