State ex rel. Robison v. Boles
| Decision Date | 11 May 1965 |
| Docket Number | No. 12423,12423 |
| Citation | 142 S.E.2d 55,149 W.Va. 516 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Benny J. ROBISON v. Otto C. BOLES, Warden, West Virginia Penitentiary. |
Syllabus by the Court
1. A judgment of imprisonment rendered in a criminal proceeding in which the accused is denied the assistance of counsel is a void judgment and its enforcement will be prevented in a habeas corpus proceeding.
2. 'A judgment which is wholly void, or is void in part, is subject to collateral attack and the enforcement of such judgment will be prevented in a habeas corpus proceeding.' Point 5, syllabus, State ex rel. Beckett v. Boles, W.Va. .
3. 'The escape from custody, of a person confined in the penitentiary under a void judgment was sentence, does not constitute a crime and a conviction therefor is likewise void.' Point 3, syllabus, State ex rel. McGilton v. Adams, 143 W.Va. 325 .
Amos C. Wilson, Logan, for relator.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for respondent.
This is an original habeas corpus proceeding instituted in this Court February 1, 1965. The petitioner, Benny J. Robison, who is presently confined in the penitentiary of this State by virtue of a sentence for an indeterminate term of one year to ten years, imposed by the Circuit Court of Logan County by judgment rendered October 26, 1961, and by virtue of sentences of fifteen months and an indeterminate term of one year to ten years, imposed by the Circuit Court of Randolph County by final judgments rendered January 24, 1964, which sentences imposed by the Circuit Court of Randolph County are to run concurrently and to begin at the end of the indeterminate term imposed by the Circuit Court of Logan County, seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from such confinement.
On February 1, 1965, this Court awarded a writ returnable March 2, 1965 and appointed counsel to represent the petitioner in this proceeding. On the return day of the writ, by agreement of counsel representing the respective parties and by leave of this Court, this proceeding was continued until April 27, 1965, at which time it was heard and submitted for decision upon the petition, the demurrer and the answer and the amended answer of the defendant and the exhibits, and the written briefs and the oral arguments in behalf of the respective parties.
The petitioner was indicted by the grand jury of Logan County on September 12, 1961, for the crime of breaking and entering. On September 15, 1961, the petitioner was arraigned and entered a plea of guilty to the charge and on October 26, 1961, the Circuit Court of Logan County by final judgment sentenced the petitioner to confinement in the penitentiary of this State for an indeterminate term of not less than one year or more than ten years. The court orders, showing the arraignment of the petitioner, the entry of his plea of guilty, and the judgment sentencing him to confinement in the penitentiary, disclose that the petitioner appeared in the custody of the sheriff but they are silent with respect to any appointment of counsel for the petitioner or that he was represented by counsel. While the petitioner was confined in the penitentiary under the foregoing sentence he was assigned to the medium security prison at Huttonsville, in Randolph County, West Virginia, and on October 27, 1963, he escaped from that prison. He was captured and on January 21, 1964, he was indicted for the crime of escaping from prison and for the crime of grand larceny of an automobile while at large after his escape; and on January 24, 1964, upon his plea of guilty to each of those offenses, he was sentenced to further confinement in the penitentiary for the commission of each of those offenses. The judgment order, sentencing the petitioner to confinement in the penitentiary for a period of fifteen months for the crime of escaping from prison, recites that the court advised the petitioner of his right to counsel, asked him if he desired to have counsel appointed by the court, and that the defendant stated that he waived his right to the assistance of counsel. The judgment order, sentencing the petitioner to confinement in the penitentiary for an indeterminate term of not less than one year or more than ten years for the offense of grand larceny, shows that the defendant was represented by counsel at the time he entered his plea of guilty to that offense.
The petitioner contends that the sentence for an indeterminate term of one year to ten years for the offense of breaking and entering, imposed by the Circuit Court of Logan County, is unconstitutional, null and void for the reason that the petitioner, an indigent person who was not able financially to employ counsel, was denied the assistance of counsel to defend him against that offense, in violation of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, and that the sentences imposed by the Circuit Court of Randolph County of fifteen months for the offense of escaping from prison and an indeterminate term of one year to ten years for the offense of grand larceny are also unconstitutional, null and void for the reason that in the proceeding in which those sentences were rendered the petitioner was not provided with the assistance of effective counsel to defend him against those offenses.
It sufficiently appears that in the criminal proceeding, in which the petitioner was sentenced to an indeterminate term of one year to ten years for the crime of breaking and entering by the Circuit Court of Logan County, the petitioner was denied the assistance of counsel to defend him against that offense. A judgment of imprisonment rendered in a criminal proceeding in which the accused is denied the assistance of counsel is a void judgment and its enforcement will be prevented in a habeas corpus proceeding. State ex rel. May v. Boles, W.Va. 139 S.E.2d 177; State ex rel. Calloway v. Boles, W.Va., 140 S.E.2d...
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