State ex rel. Smith v. Boles, No. 12485

CourtSupreme Court of West Virginia
Writing for the CourtBERRY; CALHOUN; HAYMOND; BROWNING
Citation146 S.E.2d 585,150 W.Va. 1
PartiesSTATE ex rel. Harold Edward SMITH v. Otto C. BOLES, Warden West Virginia Penitentiary.
Docket NumberNo. 12485
Decision Date12 January 1966

Page 585

146 S.E.2d 585
150 W.Va. 1
STATE ex rel. Harold Edward SMITH
v.
Otto C. BOLES, Warden West Virginia Penitentiary.
No. 12485.
Supreme Court of Appeals of West Virginia.
Submitted July 13, 1965.
Decided July 27, 1965.
Dissenting Opinion Sept. 9, 1965.
Concurring Opinion Jan. 12, 1966.

Page 586

Syllabus by the Court

There is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as [150 W.Va. 2] required by law, with the exception of the fundamental constitutional right of assistance of counsel which is specifically provided for in both the State and Federal Constitutions.

Peter Anania, Jr., Charleston, for relator.

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

BERRY, Judge:

The petitioner, Harold Edward Smith, an inmate of the West Virginia Penitentiary, invoked the original jurisdiction of this Court by filing a petition herein praying for a writ of habeas corpus. The writ was granted returnable July 6, 1965. The defendant filed a demurrer and return and upon motion of counsel for the petitioner, the case was continued to July 13, 1965, at which time it was submitted for decision upon arguments and briefs.

Three felony indictments were returned against the petitioner in Morgan County, West Virginia, in 1954. He was arraigned in the Circuit Court of said county on

Page 587

September 7, 1954, and pleaded not guilty to each indictment. A trial was had on one of the indictments on September 14, 1954, and a verdict of guilty as charged was returned by the jury. On September 15, 1954, the petitioner again appeared before the court with his attorney and was sentenced to the State Penitentiary for an indeterminate term of from one to ten years, and upon information by the prosecuting attorney of a prior conviction in the State of Pennsylvania, which he admitted in open court, an additional five years was added to his sentence under the provisions of the recidivist statute, Code, 61-11-18, as amended.

It is the contention of the petitioner that the information was not filed and that he was not 'duly cautioned', all of [150 W.Va. 3] which is required by the provisions of Code, 61-11-19, as amended. The record is silent as to both of these contentions.

The return to the writ filed by the defendant avers that the petitioner is legally confined in the West Viriginia Penitentiary, pursuant to the judgment rendered by a court of competent jurisdiction; that the judgment is valid on its face; and that a valid commitment was issued under the judgment.

The only exhibits filed by the petitioner and the defendant are certified copies of the orders of the court in connection with the matters involved herein. Four affidavits were attached to the brief filed by counsel for the petitioner after the granting of the continuance requested in this case. These affidavits do not meet the requirements of Code, 53-4-6, and Rule IX, Section 2 of this Court promulgated in 1934, 114 W.Va. Ixxv, with regard to the use of affidavits in habeas corpus and other proceedings in this Court. However, even if the affidavits are considered on the issues, they are not sufficient to warrant the granting of the relief prayed for in this case.

Two of the affidavits are from the petitioner's mother and father and they are practically the same. They merely state that the judge did not caution their son about his plea of guilty or advise him of his constitutional rights; that everything happened so fast and was over before they knew it; also, that they did not understand what happened. The affidavit from his attorney at the trial stated that he didn't recall whether or not the court advised the petitioner of his right to a hearing to determine if he was the individual involved in the prior conviction. He also stated in his affidavit that the prosecutor filed an information alleging that the accused had previously been convicted of a felony in another state. Although the petition only states the conclusion of not being 'duly cautioned', the affidavit of the petitioner does contain certain facts indicating that he was not duly cautioned, such as that he was not told that he would be given an additional sentence of five years before he acknowledged the previous convictions.

[150 W.Va. 4] Although the order is silent with regard to the filing of the information by the prosecuting attorney, it is presumed that a public official will perform his duties as required by law. Adkins v. State Compensation Director, W.Va., 142 S.E.2d 466, 469; Liberty Coal Co. et. al. v. Bassett, 108 W.Va. 293, 150 S.E. 745. Then, too, the affidavit of the petitioner's attorney at the time of his original trial, submitted for consideration, states that the information was filed. Therefore, the contention of the petitioner that the additional sentence of five years is invalid on this ground is not well taken.

There is a presumption of regularity of court proceedings that remains until the contrary appears, and the burden is on the person who alleges such irregularity to show it affirmatively; and where an order of a court of record is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that such court performed its duty in every respect as required by law, with the exception of the fundamental constitutional

Page 588

right of assistance of counsel which is specifically provided for in both the State and Federal Constitutions. 15 R.C.L., Judgements, Section 373; State ex rel. Massey v. Boles, Warden, 149 W.Va. 292, 140 S.E.2d 608; State ex rel. Ashworth v. Boles, 148 W.Va. 13, 132 S.E.2d 634; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159.

This case is governed by the Massey case cited above in which the same issue was raised; and it was held that where the record was silent with regard to duly cautioning an accused when an information was filed alleging prior convictions, it would be presumed that the court performed its duty required by the recidivist statute. Code, 61-11-19, as amended. This presumption cannot be rebutted by conclusions in the pleadings or otherwise. 39 C.J.S. Habeas Corpus § 80, page 627; State ex rel. Massey v. Boles, Warden, supra; 7 M.J., Evidence, Section 179; Clay v. Walkup, 144 W.Va. 249, 107 S.E.2d 498.

It is the petitioner's contention that he has overcome the presumption of regularity of court proceedings by virtue [150 W.Va. 5] of the four affidavits attached to the brief heretofore referred to and he cites the cases of State ex rel. Beckett v. Boles, Warden, 149 W.Va. 112, 138 S.E.2d 851 and State ex rel. McClure v. Boles, Warden, W.Va., 142 S.E.2d 773 (decided June 22, 1965), to support this contention. This position is not well taken because, as heretofore stated, the affidavits fall short of the proof required to overcome affirmatively the strong presumption of regularity and requirements for consideration in such cases. Gibson v. Thorn, 122 W.Va. 716, 12 s.E.2d 535; State ex rel. Powers v. Boles, 194 W.Va. 6, 138 S.E.2d 159; 39 C.J.S. Habeas Corpus § 100, page 680; Code, 53-4-6, as amended, and Rule IX, Section 2 of this Court. In both the Beckett and McClure cases it was affirmatively shown by transcripts of the original trial that the petitioner had not been 'duly cautioned' as mandatorily required by the statute, Code, 61-11-19, as amended, before the additional sentence was imposed.

The recent case of Hocker v. Boles, Warden, 4 Cir., 346 F.2d 285, (decided May 31, 1965), also relied on by the petitioner to support his contention with regard to not being duly cautioned, is quite different from the case at bar. In that case a hearing was held in the Federal District Court and from the evidence introduced at the hearing it affirmatively appeared that the petitioner had not been 'duly cautioned' by the trial court as required by the recidivist statute. Code, 61-11-19, as amended.

The petitioner must prove by a preponderance of the evidence that he was not 'duly cautioned', in order to rebut the presumption in such cases. 39 C.J.S. Habeas Corpus § 100, page 674; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. This he has failed to do in the case at bar.

For the reasons stated herein, the petitioner is not entitled to release from confinement as alleged in his petition and he is therefore remanded to the custody of the defendant.

Prisoner remanded.

[150 W.Va. 6] CALHOUN, Judge (dissenting).

Very respectfully I dissent from the Court's holding embodied in the majority opinion.

I believe that the prisoner has made a prima facie case in his habeas corpus petition which is supported by his oath; and that the Court has erred in remanding the prisoner without affording him an opportunity to prove his case, if additional proof is deemed necessary. 'Assuming that the allegations of a petition for a writ state a case that will entitle the petitioner to a discharge, if proved, the court cannot refuse to hear competent and relevant evidence upon the issues raised by the pleadings.'

Page 589

25 Am.Jur., Habeas Corpus, Section 151, pages 247-48.

A habeas corpus proceeding is a civil proceeding. It is commonly used in this state to test the legality of one's restraint as a consequence of criminal proceedings, to determine the right to custody of minor children or to test the legality of a restraint imposed upon one as a consequence of lunacy proceedings. Habeas corpus proceedings, by R.C.P. 81(a)(5), are excluded from the operation of the Rules of Civil Procedure; but I believe that such proceedings otherwise, generally speaking, are governed by the usual principles applicable to pleading and proof...

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16 practice notes
  • State ex rel. Strickland v. Melton, No. 12773
    • United States
    • Supreme Court of West Virginia
    • December 13, 1968
    ...of counsel or that he waived that right. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; State ex rel. Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585; State ex rel. Bullett v. Boles, 149 W.Va. 700, 143 S.E.2d 133; State ex rel. Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; Stat......
  • State ex rel. Scott v. Boles, No. 12522
    • United States
    • Supreme Court of West Virginia
    • February 15, 1966
    ...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 f......
  • Crawford v. Coiner, No. 12755
    • United States
    • Supreme Court of West Virginia
    • October 29, 1968
    ...of counsel which is specifically provided for in both the State and Federal Constitutions.' Syllabus, State ex rel. Smith v. Boles, 150 W.Va. 1, (146 S.E.2d C. Donald Robertson, Atty. Gen., Leo Catsonis, James G. Anderson III, Charleston, for plaintiff in error. Alfred E. Ferguson, Huntingt......
  • Holcomb v. Ballard, No. 12–0396.
    • United States
    • Supreme Court of West Virginia
    • October 17, 2013
    ...prosecution and not to be extended to embrace cases not falling clearly within the statutory provisions.” State ex rel. Smith v. Boles, 150 W.Va. 1, 8, 146 S.E.2d 585, 590 (1965) (Calhoun, J., dissenting). There is no language in W. Va.Code § 61–11–19 that permits the alternative dispositio......
  • Request a trial to view additional results
16 cases
  • State ex rel. Strickland v. Melton, No. 12773
    • United States
    • Supreme Court of West Virginia
    • December 13, 1968
    ...of counsel or that he waived that right. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; State ex rel. Smith v. Boles, 150 W.Va. 1, 146 S.E.2d 585; State ex rel. Bullett v. Boles, 149 W.Va. 700, 143 S.E.2d 133; State ex rel. Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; Stat......
  • State ex rel. Scott v. Boles, No. 12522
    • United States
    • Supreme Court of West Virginia
    • February 15, 1966
    ...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 f......
  • Crawford v. Coiner, No. 12755
    • United States
    • Supreme Court of West Virginia
    • October 29, 1968
    ...of counsel which is specifically provided for in both the State and Federal Constitutions.' Syllabus, State ex rel. Smith v. Boles, 150 W.Va. 1, (146 S.E.2d C. Donald Robertson, Atty. Gen., Leo Catsonis, James G. Anderson III, Charleston, for plaintiff in error. Alfred E. Ferguson, Huntingt......
  • Holcomb v. Ballard, No. 12–0396.
    • United States
    • Supreme Court of West Virginia
    • October 17, 2013
    ...prosecution and not to be extended to embrace cases not falling clearly within the statutory provisions.” State ex rel. Smith v. Boles, 150 W.Va. 1, 8, 146 S.E.2d 585, 590 (1965) (Calhoun, J., dissenting). There is no language in W. Va.Code § 61–11–19 that permits the alternative dispositio......
  • Request a trial to view additional results

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