State ex rel. Strickland v. Melton, No. 12773

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation165 S.E.2d 90,152 W.Va. 500
PartiesSTATE ex rel. Sterling Doy STRICKLAND v. G. Kemp MELTON, Sheriff of Kanawha County, West Virginia.
Decision Date13 December 1968
Docket NumberNo. 12773

Page 90

165 S.E.2d 90
152 W.Va. 500
STATE ex rel. Sterling Doy STRICKLAND
v.
G. Kemp MELTON, Sheriff of Kanawha County, West Virginia.
No. 12773.
Supreme Court of Appeals of West Virginia.
Submitted Oct. 29, 1968.
Decided Dec. 10, 1968.
Dissenting in Part and Concurring in Part Dec. 13, 1968.

Page 91

Syllabus by the Court

1. The constitutional right of a defendant in a criminal case to the assistance of counsel may be waived by such defendant at any time, before, at, or after the trial of the case.

2. Probation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime.

3. When the record is silent on the question of the presence of counsel in a criminal case it can not be presumed that the defendant was afforded the assistance of counsel or that he waived that right.

[152 W.Va. 501] 4. Revocation of probation and the imposition after such revocation of a sentence of confinement in the penitentiary at a hearing at which a criminal defendant was without the assistance of counsel are void in the absence of a waiver by such defendant of his right to the assistance of counsel; and the enforcement of such revocation and sentence will be prevented in a habeas corpus proceeding.

5. A probationer who at all times during the period of his valid probation has been available for the service of process of the court which granted such probation and set aside the sentence of imprisonment for the offense of which he was convicted may not again be sentenced for such offense after the expiration of his probationary period.

6. '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, 149 W.Va. 112 (138 S.E.2d 851).

7. '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, 148 W.Va. 802 (137 S.E.2d 418).

Weaver & Daugherty, George A. Daugherty, Charleston, for relator.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Morton I. Taber, Asst. Attys. Gen., Charleston, for respondent.

Page 92

HAYMOND, Judge:

In this original habeas corpus proceeding instituted in this Court the petitioner, Sterling Doy Strickland, seeks a writ to require the defendant, G. Kemp Melton, Sheriff of Kanawha County, West Virginia, to release him from the jail of Kanawha County, West Virginia, where he is confined in the custody of the defendant awaiting execution of two concurrent sentences of confinement in the penitentiary[152 W.Va. 502] of this State imposed by the Intermediate Court of Kanawha County.

This Court, on October 15, 1968, issued a writ returnable October 22, 1968, and on October 29, 1968 this proceeding was submitted for decision upon the petition and its exhibits, the return and the demurrer of the defendant, and the briefs and the oral arguments of counsel for the respective parties.

The material facts are undisputed and the questions presented for decision are questions of law.

At the Regular January Term 1964 of the Intermediate Court of Kanawha County, West Virginia, the grand jury returned an indictment, No. 101, against the petitioner, who at that time was seventeen years of age, for the crime of forcible rape. On January 24, 1964, the petitioner appeared in that court in person and by counsel and entered a plea of guilty to the indictment. By order entered February 10, 1964, he was delivered to the director of the West Virginia Department of Mental Health for pre-sentence social, physical and mental examination and was committed to the Weston State Hospital, at Weston, West Virginia, for that purpose. On July 2, 1964, he again appeared in court in person and by order of that date, which is silent with respect to whether he was represented by counsel, imposition of sentence was suspended and he was placed on probation for a period of three years subject to certain stated conditions.

While the petitioner was on probation he was again indicted by a grand jury of the Intermediate Court of Kanawha County for the crime of grand larceny. Having pleaded guilty to the indictment the petitioner was brought before the court of May 21, 1965, his probation of July 2, 1964 was revoked and he was sentenced upon his conviction for forcible rape of January 24, 1964 to confinement in the State penitentiary for an indeterminate term of five years to twenty years with credit for the 229 days spent in jail.

Later during the same day that probation was revoked the petitioner was sentenced to serve an indeterminate term [152 W.Va. 503] of one year to ten years upon his grand larceny conviction which sentence was to run concurrently with the sentence imposed earlier that day upon the petitioner upon his conviction for forcible rape with credit for the time of his confinement in jail.

The record of both proceedings on May 21, 1965 is silent with respect to representation of the petitioner by counsel.

Three years later, on April 20, 1968, the petitioner instituted a habeas corpus proceeding in the Circuit Court of Kanawha County, West Virginia. In his original petition he alleged that he was denied the assistance of counsel on July 2, 1964 when he was placed on probation; that he was denied the assistance of counsel at the hearing at which his probation was revoked on May 21, 1965; and that his plea of guilty to the charge of rape was involuntary. He also filed a supplemental petition in the habeas corpus proceeding, in which he alleged that in entering his plea of guilty to the indictment for rape he was required to bargain for justice and denied his right to a trial by jury in violation of due process of law. The circuit court awarded the writ and on May 27, 1968, the proceeding was heard. The circuit court made no detailed finding of facts or conclusions of law as required by Section 7(c), Article 4A, Chapter 53, Code, 1931, as amended,

Page 93

but made a general finding that the petitioner's detention was unlawful and by order provided that the intermediate court take further action in a constitutionally permissible manner within sixty days or discharge him from his confinement. No appeal was taken from the final order of the circuit court entered May 29, 1968.

On August 22, 1968, after overruling the petitioner's motion for immediate discharge and his objection to any re-sentencing, the intermediate court set aside the original sentence imposed upon him on May 21, 1965 and re-sentenced him to an indeterminate term of five years to twenty years in the penitentiary of this State and provided that such sentence should run concurrently with the sentence imposed by that court for the crime of grand larceny imposed [152 W.Va. 504] upon the petitioner on May 21, 1965. No appeal was taken from the judgment which re-sentenced the petitioner to confinement in the penitentiary upon the indictment for forcible rape but instead of an appeal the petitioner instituted this original proceeding in this Court.

The petitioner seeks relief in this proceeding on substantially these grounds: (1) He was denied the assistance of counsel when his probation was revoked and he was sentenced to confinement in the penitentiary of this State on May 21, 1965; (2) the judgment of the circuit court in the habeas corpus proceeding that the petitioner was illegally restrained of his liberty constituted res judicata and entitled him to release from confinement; and (3) the intermediate court was without authority to re-sentence him to confinement in the penitentiary after the expiration of his three year period of probation and that such re-sentence is void. He also contends that the sentence is void because he was required to bargain for justice in violation of due process of law when he entered his plea of guilty to the indictment for the crime of forcible rape.

On the contrary the defendant Melton, Sheriff, asserts, in substance, that as the revocation of the probation of the petitioner on May 21, 1965 occurred during the three year period of such probation the action of the intermediate court in re-sentencing the petitioner was valid and that if such action was not valid the petitioner should be remanded for a new probation revocation hearing at which he would be entitled to the assistance of counsel and upon revocation of his probation at such hearing the intermediate court could re-sentence him in the manner provided by the applicable statute governing the crime of rape.

Although in his original petition in the habeas corpus proceeding in the Circuit Court of Kanawha County the petitioner attacked the validity of the probation granted him on July 2, 1964 because he did not then have the assistance of counsel, he has waived that right in this proceeding. This he may do at any time. The constitutional right of a defendant in a criminal case to the assistance of [152 W.Va. 505] counsel may be waived by such defendant at any time, before, at or after the trial of the case. In Wells v. Stallings, 253 F.Supp. 748, a habeas corpus proceeding in the United States District Court for the Eastern District of North Carolina, the opinion contains this language: 'Unquestionably, rights secured to criminal defendants by the United States Constitution can be waived. The waiver can apply to rights that attach Before, at, and After the trial proper.' See State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177; State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159; Caldwell v. Hunter, 163 F.2d 181, 10th cir., certiorari denied, 333 U.S. 847, 68 S.Ct. 649, 92 L.Ed. 1130. Any right which the petitioner may have had to the assistance of counsel when he was placed on probation has been waived and the validity of such probation is not impaired or affected by reason of the absence of counsel at the time the probation was...

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46 practice notes
  • Findley v. State Farm Mut. Auto. Ins. Co., No. 30842.
    • United States
    • Supreme Court of West Virginia
    • December 6, 2002
    ...of [a] statute of the State by its highest court ... must be accepted as conclusive[.]"); State ex rel. Strickland v. Melton, 152 W.Va. 500, 513, 165 S.E.2d 90, 98 (1968) (refusing to adopt federal court's construction of West Virginia statute, recognizing that "this Court is not bound by a......
  • Hughes v. Gwinn, No. 15060
    • United States
    • Supreme Court of West Virginia
    • March 17, 1982
    ...act of grace upon the part of the State to a person who has been convicted of a crime." Syl. pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968). Petitioner contends that her probation revocation is constitutionally infirm because she was not provided counsel duri......
  • State v. Mobley, No. 6-337571
    • United States
    • Superior Court of Connecticut
    • August 28, 1993
    ...but punishment); Vanderburg v. State, 681 S.W.2d 713, 719 (Tex.App.1984) (probation is contractual); State ex rel. Strickland v. Melton, 152 W.Va. 500, 505, 165 S.E.2d 90 (1968); State v. Foley, 142 Wis.2d 331, 342, 417 N.W.2d 920 (1987) (not a sentence but part of sentencing process); hold......
  • State v. Varlas, No. 19-0005
    • United States
    • Supreme Court of West Virginia
    • June 16, 2020
    ...of a crime." State v. Jones , 216 W.Va. 666, 669, 610 S.E.2d 1, 4 (2004) (quoting Syl. pt. 2, State ex rel. Strickland v. Melton , 152 W.Va. 500, 165 S.E.2d 90 (1968) ). It has been said that "probation has no correlation to the underlying criminal sentence[.]" State v. Tanner , 229 W.Va. 1......
  • Request a trial to view additional results
46 cases
  • Findley v. State Farm Mut. Auto. Ins. Co., No. 30842.
    • United States
    • Supreme Court of West Virginia
    • December 6, 2002
    ...of [a] statute of the State by its highest court ... must be accepted as conclusive[.]"); State ex rel. Strickland v. Melton, 152 W.Va. 500, 513, 165 S.E.2d 90, 98 (1968) (refusing to adopt federal court's construction of West Virginia statute, recognizing that "this Court is not bound by a......
  • Hughes v. Gwinn, No. 15060
    • United States
    • Supreme Court of West Virginia
    • March 17, 1982
    ...act of grace upon the part of the State to a person who has been convicted of a crime." Syl. pt. 2, State ex rel. Strickland v. Melton, 152 W.Va. 500, 165 S.E.2d 90 (1968). Petitioner contends that her probation revocation is constitutionally infirm because she was not provided counsel duri......
  • State v. Mobley, No. 6-337571
    • United States
    • Superior Court of Connecticut
    • August 28, 1993
    ...but punishment); Vanderburg v. State, 681 S.W.2d 713, 719 (Tex.App.1984) (probation is contractual); State ex rel. Strickland v. Melton, 152 W.Va. 500, 505, 165 S.E.2d 90 (1968); State v. Foley, 142 Wis.2d 331, 342, 417 N.W.2d 920 (1987) (not a sentence but part of sentencing process); hold......
  • State v. Varlas, No. 19-0005
    • United States
    • Supreme Court of West Virginia
    • June 16, 2020
    ...of a crime." State v. Jones , 216 W.Va. 666, 669, 610 S.E.2d 1, 4 (2004) (quoting Syl. pt. 2, State ex rel. Strickland v. Melton , 152 W.Va. 500, 165 S.E.2d 90 (1968) ). It has been said that "probation has no correlation to the underlying criminal sentence[.]" State v. Tanner , 229 W.Va. 1......
  • Request a trial to view additional results

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