State ex rel. Widmyer v. Boles, No. 12475

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 144 S.E.2d 322,150 W.Va. 109
• Docket Number: No. 12475
• Decision Date: 12 October 1965
• Parties: STATE ex rel. Edwin George WIDMYER v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 322

144 S.E.2d 322 150 W.Va. 109 STATE ex rel. Edwin George WIDMYER
v.
Otto C. BOLES, Warden, West Virginia Penitentiary. No. 12475. Supreme Court of Appeals of West Virginia. Submitted Sept. 1, 1965.
Decided Oct. 12, 1965.

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Syllabus by the Court

1. The right of the defendant in a criminal proceeding to the assistance of counsel is a fundamental right, the waiver of which will not be presumed by the failure of the accused to request counsel, by the entry of a guilty plea or by reason of a record silent concerning the matter of counsel and the conviction of a defendant in the absence of counsel or of an affirmative

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showing of an intelligent waiver of such right is void.

[150 W.Va. 110] 2. The denial of the fundamental right of a 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 imprisonment under such statute.

3. 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 imprisonment provided by such statute and, in that situation, such statute will be deemed to be wholly inapplicable.

4. 'A judgment which is wholly void, or is void in part, is subject to collaterial 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].

5. A petitioner in a habeas corpus proceeding, upon whom imprisonment for an invalid additional period has been improperly imposed under the recidivist statute of this State, may be relieved of the void portion of the imprisonment but will not be discharged from serving the maximum term provided by statute for the principal offense and any valid additional sentence for any prior felony conviction.

Charles M. Love, III, Charleston, for relator.

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

HAYMOND, Judge.

In this original habeas corpus proceeding instituted in this Court May 27, 1965, the petitioner, Edwin George [150 W.Va. 111] Widmyer, 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 Morgan County, West Virginia, by its final judgment rendered January 17, 1955, seeks a writ to prevent the enforcement of the sentence of life imprisonment and to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from such confinement.

On June 7, 1965, this Court awarded a writ returnable September 1, 1965 and appointed an attorney to represent the petitioner. Upon the return day of the writ this proceeding was heard and submitted for decision upon the petition and its exhibit, the return of the defendant and its exhibits, and the written brief and oral argument in behalf of the petitioner. No written brief was filed in behalf of the defendant, who produced the body of the petitioner as commanded by the writ and filed his return. Copies of the indictment for the principal offense and of the order of the Circuit Court of Morgan County entered September 7, 1937, sentencing the petitioner to confinement in the penitentiary of this State for an indeterminate period of two years to ten years, and of the order entered January 17, 1955, sentencing the petitioner to confinement in the penitentiary for life, were filed as exhibits with the return of the defendant.

From the return and its exhibits it appears that the petitioner was indicted by the grand jury of the Circuit Court of Morgan County at the January Term, 1955, for the crime of grand larceny; that on January 17, 1955, the petitioner, being represented by counsel, was arraigned and entered his plea of guilty to such indictment; that the prosecuting attorney of Morgan County filed an information which charged that the petitioner was indicted for a felony

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at the September Term, 1937, of the Circuit Court of Morgan County, and on the 7th day of September, 1937, entered a plea of guilty to such indictment and was sentenced to serve an indeterminate sentence of two years to ten years in the penitentiary of this State; that the petitioner was indicted for a felony at the January Term, 1947, of the [150 W.Va. 112] Circuit Court of Morgan County, to which he entered a plea of not guilty and upon the trial by a jury the petitioner was convicted and sentenced to be confined in the penitentiary of this State for a period of ten years and an additional period of five years was imposed by reason of his prior conviction for a felony in September 1937; that 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 that by its final judgment rendered...