State ex rel. Whytsell v. Boles

Citation141 S.E.2d 70,149 W.Va. 324
Decision Date16 March 1965
Docket NumberNo. 12422,12422
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Simon WHYTSELL, Jr. v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Syllabus by the Court

1. The denial of the fundamental right of the defendant to the assistance of counsel in a criminal proceeding applies to and invalidates any prior conviction of an offense within the meaning of a recidivist statute, and such conviction and any sentence of imprisonment imposed upon it, being null and void because of such denial, can not justify or support the imposition of any additional punishment under such statute.

2. To justify the imposition, under the recidivist statute of this State, of a sentence in excess of the sentence provided for the principal offense, the previous conviction and sentence must be a valid conviction and sentence; and if such previous conviction and sentence are void they will not constitute the basis for the imposition of the punishment provided by such statute and, in that situation, such statute will be deemed to be wholly inapplicable.

3. '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 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, W.Va.

5. A person imprisoned under a valid sentence imposed for the commission of a principal offense who has fully served the maximum sentence provided for such offense will be released from custody by a writ of habeas corpus.

Otis L. O'Connor, Charleston, for relator.

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

HAYMOND, Judge:

This is an original habeas corpus proceeding instituted in this Court on January 25, 1965, in which the petitioner, Simon Whytsell, Jr., who is presently confined in the penitentiary of this State by virtue of a sentence of life imprisonment as a habitual criminal imposed by the Circuit Court of Calhoun County, West Virginia, by its final judgment entered April 14, 1954, seeks a writ to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from such confinement.

On January 25, 1965, this Court issued a writ returnable February 23, 1965, at which time the defendant produced the petitioner in open court in obedience to the command of the writ and filed his answer, in which he alleged that the petitioner was found guilty of the principal offense charged against him; that an information was filed setting forth two previous felony convictions of the petitioner; that the petitioner acknowledged that he was the same person named in the information and was sentenced to life imprisonment as a recidivist; and that the petitioner was adequately represented by court appointed counsel in the criminal proceeding in the Circuit Court of Calhoun County; and on that day this proceeding was heard and submitted for decision upon the petition and its exhibits, the demurrer and the answer of the defendant, and the written briefs and the oral arguments in behalf of the respective parties.

The petitioner was indicted jointly with Elmer Erwin Riddle by the grand jury of Calhoun County at the April 1953 Term of the circuit court of that county for the crime of grand larceny. On April 14, 1954, the circuit court appointed counsel to represent the petitioner in that proceeding and the petitioner entered his plea of not guilty to the indictment; and upon a separate trial by a jury the jury returned a verdict of guilty as charged in the indictment. At the same time and before the imposition of sentence the prosecuting attorney filed an information which charged that on April 18, 1950 the petitioner was convicted in the Circuit Court of Calhoun County of the offense of uttering a worthless check which was punishable by confinement in the penitentiary of this State and was duly sentenced upon such conviction to confinement in the penitentiary for an indeterminate sentence of not less than one year or more than five years, and that on April 22, 1942, the petitioner was also convicted in the Circuit Court of Calhoun County of the offense of forgery which was punishable by confinement in the penitentiary and was duly sentenced to such confinement for a term of not less than two years or more than ten years. The court then inquired of the petitioner whether he was the same person so convicted and after having been duly cautioned the petitioner acknowledged that he was the same person who had been twice previously convicted and sentenced for the foregoing felonies; and by its final judgment entered April 14, 1954, the petitioner was sentenced to confinement in the penitentiary of this State for the term of his natural life.

Copies of the orders entered by the circuit court in each of the criminal proceedings in which the petitioner was previously convicted and sentenced, filed as exhibits with the petition, are silent with respect to the appointment or the presence of counsel for the petitioner and as to whether he was advised as to his right to the assistance of counsel and whether he intelligently waived such right.

The petitioner has also filed an affidavit in this proceeding, which is not denied, in which he states that he was not represented by counsel at any stage in either proceeding in which he was convicted on April 18, 1950 and on April 22, 1942; that he did not have financial means to hire an attorney to represent him; that he did not know that he could request the court to appoint an attorney to represent him or that he had the right to have an attorney appointed for that purpose; that he did not demand the appointment of an attorney because he did not know that he could have an attorney unless he employed one; that he was never informed by the judge, the prosecuting attorney or any other person that he could request and obtain the appointment of an attorney to represent him; that he never knowingly waived his right to the assistance of counsel; that he would not have done so if he had been adequately informed of his right; that if he could have obtained counsel to represent him by requesting the judge to appoint an attorney to act as his counsel he would have made such request; and that he believes that had he been represented and advised by competent counsel with regard to the charges against him in those proceedings the outcome of those charges would have been substantially altered.

The petitioner contends that the sentence of life imprisonment is unconstitutional, null and void for the reason that he was denied the assistance of counsel to defend him against the offenses for which he was previously convicted in each of the two former criminal proceedings against him in the Circuit Court of Calhoun County.

In the recent cases of State ex rel. Powers v. Boles, W.Va., 138 S.E.2d 159; State ex rel. May v. Boles, W.Va., 139 S.E.2d 177; State ex rel. Hicklin v. Boles, W.Va., 139 S.E.2d 182; State ex rel. Stumbo v. Boles, W.Va., 139 S.E.2d 259; State ex rel. Browning v. Boles, W.Va., 139 S.E.2d 263; State ex rel. Arbraugh v. Boles, W.Va., 139 S.E.2d 370; State ex rel. Calloway v. Boles, W.Va., 140 S.E.2d 463; State ex rel. Jackson v. Boles, W.Va., 140 S.E.2d 619; State ex rel. Calloway v. Boles, W.Va., 140 S.E.2d 624; and State ex rel. Wadkins v. Boles, W.Va., 140 S.E.2d 620, following the decisions of the Supreme Court of the United States in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733; Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357; and Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; and the decisions of the United States Courts of Appeals in United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 2d Cir., certiorari denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048; and Jones v. Cunningham, 319 F.2d 1, 4th Cir., this Court has held that the right to the assistance of counsel is a fundamental right, essential to a fair trial, that the safeguard of counsel provided by the Sixth Amendment to the Constitution of the United States is made obligatory upon the states under the due process clause of the Fourteenth Amendment, that such right will not be presumed to have been waived by the entry of a plea of guilty by the accused where the record is silent as to such waiver, by the failure of the accused to request counsel, or by reason of a record silent on the matter of the assistance of counsel; and that though a person accused of a crime may waive his right to the assistance of counsel such waiver must be made intelligently and understandingly. At the time the petitioner was charged with the commission of the crimes for which he was convicted in the former proceedings in the Circuit Court of Calhoun County in 1950 and in 1942, he was entitled to the assistance of counsel and, with respect to the record in those proceedings, there is no indication that the petitioner was represented by counsel or that he intelligently waived that right; or that the defendant offered anything to show that the petitioner was in fact represented by counsel or that he intelligently waived his right to the...

To continue reading

Request your trial
32 cases
  • Wanstreet v. Bordenkircher
    • United States
    • West Virginia Supreme Court
    • 10 Marzo 1981
    ... ... held to require a strict construction in favor of the prisoner." State ex rel. Ringer v. Boles, 151 W.Va. 864, 871, 157 S.E.2d 554, 558 (1967) ... Boles, 149 W.Va. 532, 142 S.E.2d 374 (1965); State ex rel. Whytsell v. Boles, 149 W.Va. 324, 141 S.E.2d 70 (1965). We have also held that a ... ...
  • State ex rel. Smith v. Boles
    • United States
    • West Virginia Supreme Court
    • 12 Enero 1966
    ... ... State ex rel. Bullett v. Boles, W.Va., 143 S.E.2d 133; State ex rel. Massey v. Boles, 149 W.Va. 292, 140 S.E.2d 608; States ex rel. Pettery v. Boles, 149 W.Va. 379, 141 S.E.2d 80; State ex rel. Whytsell v. Boles, 149 W.Va. 324, 141 S.E.2d 70; State ex rel. Arbraugh v. Boles, 149 W.Va. 193, 139 S.E.2d 370; State ex rel. Browning v. Boles, 148 W.Va. 181, 139 S.E.2d 263; State ex rel. Stumbo v. Boles, 149 W.Va. 174, 139 S.E.2d 259; State ex rel. Hicklin v. Boles, 149 W.Va. 163, 139 S.E.2d 182; State ... ...
  • Cuppett v. Duckworth
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 8 Octubre 1993
    ...149 W.Va. 359, 141 S.E.2d 81 (1965); State ex rel. Cobb v. Boles, 149 W.Va. 377, 141 S.E.2d 59 (1965); State ex rel. Blankenship v. Boles, 149 W.Va. 324, 141 S.E.2d 68 (1965); State ex rel. Pettery v. Boles, 149 W.Va. 379, 141 S.E.2d 80 (1965); State ex rel. Whytsell v. Boles, 149 W.Va. 324......
  • State ex rel. Widmyer v. Boles
    • United States
    • West Virginia Supreme Court
    • 12 Octubre 1965
    ... ... State ex rel. Whytsell v. Boles, W.Va., 141 S.E.2d ... 70, and the many cases cited in the opinion in that case ...         At the time the petitioner was charged with the commission of the crime for which he was convicted and sentenced in the Circuit Court of Morgan County on September 7, 1937, he was entitled ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT