State ex rel. Scott v. Boles

• Citation: 150 W.Va. 453,147 S.E.2d 486
• Decision Date: 15 February 1966
• Docket Number: No. 12522,12522
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. James SCOTT v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 486

147 S.E.2d 486

150 W.Va. 453

STATE ex rel. James SCOTT v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12522.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1966.

Decided Feb. 15, 1966.

Concurring Opinions March 7 and 29, 1966.

Syllabus by the Court

1. Under the statute of this state dealing with habeas corpus proceedings a prima facie case, in order for this Court to issue the writ, may be made by petition showing by an affidavit or other evidence probable cause to believe that a person is detained without lawful authority. However, this does not in any way warrant the release of a petitioner confined in the penitentiary. Such petitioner has the burden of proving by a preponderance of the evidence the allegations contained in his petition or affidavit which would warrant his release.

2. There is a presumption of regularity of court proceedings in courts of competent jurisdiction that remains until the contrary appears, and the burden of proving any irregularity in such court proceedings rests upon the person who alleges such irregularity to show it affirmatively. In a collateral attack on a judgment of a court of competent jurisdiction the burden does not shift to the defendant upon the filing of a petition and affidavit to prove that the judgment is proper in all respects and that the court performed all of its duties required by law.

3. It will be presumed, where the record is silent, that a court of competent jurisdiction performed its duties in all respects as required by law. There is, however, an exception with regard to this presumption relating to the right to the assistance of counsel which is a fundamental constitutional right provided in both the State and Federal Constitutions.

John F. Wood, Jr., Huntington, for relator.

C. Donald Robertson, Atty. Gen., Thomas P. O'Brien, Jr., Asst. Atty. Gen., Charleston, for respondent.

BERRY, Judge:

This proceeding involves a petition for a writ of habeas corpus filed by James Scott, an inmate of the West Virginia State Penitentiary, invoking the original jurisdiction of this Court, in which he alleges that he was not afforded the assistance of counsel in a previous conviction in Lucas County, Ohio, and was not duly cautioned as required by the recidivist statute of this State before an additional sentence was imposed upon him for the previous conviction. The writ was granted on the basis of these allegations returnable January 12, 1966.

The defendant filed a return in which the allegations contained in the petition were answered in detail with duly certified copies of the court orders showing the proceedings, both in this state for the principal offense and the State of Ohio for the previous conviction, and stating that the petitioner was legally confined in the West Virginia represented by counsel at his previous conviction of a court of competent jurisdiction in this State and that a valid commitment for his confinement had been issued under said judgments and that said petitioner was represented by counsel at his previous conviction in the Common Pleas Court of Lucas County, Ohio, as shown by a proper authenticated record of said Court.

On January 12, 1966, the day this proceeding was set for hearing and was submitted, counsel for the petitioner filed a brief in his behalf with an affidavit of the petitioner attached thereto in which he stated that he had not been duly cautioned by the Common Pleas Court of Cabell County before the additional sentence was imposed upon him under the recidivist statute of this State but he admitted having the assistance of counsel at the previous conviction as shown by the records of the court at which he had been previously convicted. However, it is the contention of the petitioner that he is nevertheless entitled to relief in this proceeding because the court order of the Common Pleas Court of Cabell County where he was convicted of the principal offense and sentenced to an additional five years under the recidivist statute is silent with regard to his being duly cautioned by said Court before the sentence was imposed. A certified copy of the court order filed with the defendant's return is silent with regard to the duly cautioning of the petitioner. The cause was submitted to this Court for decision by the parties upon arguments and briefs.

On January 3, 1958, the petitioner, at which time he was represented by counsel in the Common Pleas Court of Cabell County, West Virginia, pleaded guilty to an indictment charging him with breaking and entering, after which a written information was filed by the prosecuting attorney alleging that the petitioner had been previously convicted of a felony in the Common Pleas Court of Lucas County, Ohio. The petitioner was thereupon sentenced to confinement in the West Virginia Penitentiary of from one to ten years for the principal offense and an additional sentence of five years for the previous felony conviction in the Common Pleas Court of Lucas County, Ohio. Although the petitioner has not served the maximum sentence provided for the principal offense, it is his contention in this proceeding that the additional sentence of five years imposed upon him should be held void by this Court because it is not affirmatively shown by the order of the Common Pleas Court of Cabell County that he was duly cautioned. Although there is a presumption of regularity in court proceedings and that the court performed its duty in every respect as required by law, the petitioner insists that this presumption has been overcome by the affidavit attached to the brief filed in his behalf on the day of the hearing. No answer or traverse to the return was filed by the petitioner denying the statements in the return. See 39 C.J.S., Habeas Corpus, § 99, and Hurley v. Hurley, 71 W.Va. 269, 76 S.E. 438.

The question involved in this proceeding has been previously answered by this Court on several occasions. A statement that an accused is not duly cautioned is merely a conclusion of law and is not proper pleading nor is it proof if contained in an affidavit. State ex rel. Massey v. Boles, W.Va., 140 S.E.2d 608, (decided March 9, 1965); State ex rel. Smith v. Boles, W.Va., 146 S.E.2d 585, (decided July 27, 1965). It is true that under the statute of this State dealing with habeas corpus proceedings a prima facie case, in order for this Court to issue a writ, may be made by an affidavit or other evidence which may indicate probable cause to believe that a person is detained without lawful authority. Code, 53--4--1. However, this does not in any way warrant the release of a petitioner confined in the penitentiary. Such petitioner has the burden of proving by a preponderance of the evidence the allegations alleged in his petition or affidavit which would warrant his release. 39 C.J.S. Habeas Corpus §§ 99, 100. Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. Section 2 of Rule IX of the Rules of this Court clearly states that affidavits will not be considered except in ex parte hearings and that in effect it is necessary to take depositions in order to have proper proof although such depositions ar labeled or called affidavits. This rule reads as follows:

'Other than on ex parte hearings, affidavits will not be considered by the court unless reasonable notice be given to the opposing party or his counsel of the time and place of the taking of the same, with the right of cross-examination.'

Similarly, Section 6, Article 4, Chapter 53, Code of West Virginia, relating solely to the use of affidavits in habeas corpus cases, provides that they may be read as evidence if taken at the direction of the court on reasonable notice to the other party.

It has been repeatedly held that there is a presumption of regularity of court proceedings in courts of competent jurisdiction which remains until the contrary appears and that the burden of proving any irregularity in such court proceedings rests upon the person who alleges such irregularity to show it affirmatively. In a collateral proceeding such as this proceeding which is an attack on a judgment of a court of competent jurisdiction in another proceeding the burden does not shift to the defendant upon the filing of a petition and affidavit to prove that the judgment is proper in all respects and that the court performed all of its duties required by law. 39 C.J.S. Habeas Corpus § 100. It will be presumed, where the record is silent, that a court of competent jurisdiction performed its duty in all respects as required by law. There is, however, an exception with regard to this presumption relating to the right to the assistance of counsel, which is a fundamental constitutional right provided in both the State and Federal Constitutions and will not be presumed satisfied. State ex rel. Massey v. Boles, Warden, W.Va., 140 S.E.2d 608; State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370; State ex rel. Stumbo v. Boles, 149 W.Va. 174, 139 S.E.2d 259; State ex rel. Browning v. Boles, 149 W.Va. 181, 139 S.E.2d 263.

It should be pointed out that this Court is an appellate court and does not conduct hearings with oral testimony before the court as do trial courts. The constitution of this state does give this Court original jurisdiction in habeas corpus proceedings, in addition to its appellate jurisdiction in such cases. Article VIII, Section 3, Constitution of West Virginia. However, the Constitution also gives the circuit courts original jurisdiction in such cases. Article VIII, Section 12. The circuit courts are trial courts and full hearings can be held with testimony of witnesses given in person before the judges thereof.

The inmates of the penal institutions of this state can institute habeas corpus proceeding in the circuit court or any other trial court created and given such jurisdiction by the legislature in the counties wherein such institutions in which they are detained are located if they so...