State ex rel. Powers v. Boles

• Decision Date: 29 September 1964
• Docket Number: No. 12351,12351
• Citation: 138 S.E.2d 159,149 W.Va. 6
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. William K. POWERS v. Otto C. BOLES, Warden, etc.

Page 159

138 S.E.2d 159

149 W.Va. 6

STATE ex rel. William K. POWERS v. Otto C. BOLES, Warden, etc.

No. 12351.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 2, 1964.

Decided Sept. 29, 1964.

Syllabus by the Court

1. 'The general rule supported by the weight of authority is that a judgment rendered by a court in a criminal case must conform strictly to the statute which prescribes the punishment to be imposed and that any variation from its provisions, either in the character or the extent of the punishment inflicted, renders the judgment absolutely void.' Point 3 Syllabus, State ex rel. Nicholson v. Boles, Warden, W.Va. .

2. 'A void sentence is in law no sentence at all and the court upon a valid sentence may impose any penalty provided by law.' Point 3 Syllabus, State ex rel. Boner v. Boles, Warden, W.Va. .

3. 'A sentence at variance with statutory requirements is void and may be superseded by a new sentence in conformity with statutory provisions, and such new sentence may be rendered after such prior sentence has been partially served or after the term of court has expired even though such new sentence imposes a greater punishment.' Point 4 Syllabus, State ex rel. Boner v. Boles, Warden, W.Va. .

4. 'A person imprisoned under a void sentence will be released from such imprisonment by a writ of habeas corpus.' Point 8 Syllabus, State ex rel. Boner v. Boles, Warden, W.Va. .

5. A person accused of a crime may waive his constitutional right to assistance of counsel and his constitutional right to trial by jury, if such waivers are made intelligently and understandingly.

6. Where the record affirmatively discloses that a person accused of a crime expressly waived his constitutional right to assistance of counsel and his constitutional right to trial by jury and entered a plea of guilty to the charge, such waivers and such plea of guilty will not be held in a habeas corpus proceeding to be void on the ground that such waivers were not made intelligently and understandingly or that the plea of guilty was not entered intelligently and understandingly, unless such contentions are supported by proper allegations and by a preponderance of the evidence.

Samuel D. Littlepage, Point Pleasant, Harry F. Thompson, Jr., Huntington, for relator.

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

CALHOUN, Judge.

In this proceeding in habeas corpus, William K. Powers, the relator, asserts that he is illegally detained in the state penitentiary.

On May 9, 1963, the relator entered a plea of guilty in the Circuit Court of Mason County to an indictment charging him with having obtained money and property by false pretense in violation of the provisions of Code, 1931, 61-3-24, a portion of which is as follows: 'If any person obtain from another, by any false pretense, token or representation, with intent to defraud, money, goods or other property which may be the subject of larceny * * *; every person so offending against any of the provisions of this section shall be guilty of a felony, and, upon conviction shall be confined in the penitentiary not less than one nor more than five years, * * *.'

It is asserted in behalf of the relator and admitted by the attorney general that the circuit court imposed an improper sentence of from one to ten years instead of a proper sentence of from one to five years.

The sentence imposed, not being in conformity with or authorized by the statute, is void and may be superseded by a new sentence in conformity with the statute. The new sentence may be imposed even though the relator has served a portion of the void sentence and even though the term of court at which it was pronounced has adjourned. The relator in these circumstances is entitled to be released from his imprisonment pursuant to the void sentence, but without prejudice to the right of the state to proceed further against him to impose a proper and valid sentence in a manner provided by law. In the event a new and valid sentence is imposed upon the relator pursuant to his plea of guilty heretofore entered, the court, in its discretion, may allow him credit on such sentence for the period of his prior imprisonment in connection with the offense charged in the indictment. State ex rel. Boner v. Boles, Warden, W.Va., 137 S.E.2d 418; State ex rel. Nicholson v. Boles, Warden, W.Va., 134 S.E.2d 576.

The relator previously applied to the Circuit Court of Mason County, the court in which he had been indicted and sentenced, for a writ of habeas corpus upon essentially the same grounds as those asserted in the proceeding in this Court. The circuit court appointed counsel to represent the relator in the habeas corpus proceeding, set the case for hearing and arranged for the prisoner's return from the penitentiary to attend the hearing. On the day set for the hearing, the relator, appearing in person and by counsel, moved to dismiss the proceeding. The motion was granted and the proceeding was dismissed. Thereafter the petition was filed in this Court and the same attorney, Honerable Samuel D. Littlepage, was designated and appointed to represent the relator in the proceeding in this Court. The case was submitted to the Court on written briefs and without oral argument. Counsel assigned to represent the relator filed a brief in which he ably demonstrated the invalidity of the sentence as set forth above.

A separate brief was filed in this Court by Attorney Harry F. Thompson, Jr., who apparently was employed privately in behalf of the relator. In this brief it is asserted that 'it is the defendant's position that he did not waive his right to the assistance of counsel because he did not have sufficient intelligence and understanding of the legal concepts and elements of the offense...