State ex rel. Wright v. Boles
| Decision Date | 01 February 1966 |
| Docket Number | No. 12535,12535 |
| Citation | 146 S.E.2d 524,150 W.Va. 381 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. James Stanley WRIGHT 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 a statute.' Point 1, Syllabus, State ex rel. Whytsell v. Boles, W.Va. .
2. Where prior felony convictions upon which a life sentence is imposed under the habitual criminal act are declared void but the conviction for the principal offense is valid, the sentence for such valid conviction, to be enforceable, must be readily ascertainable from the statute itself; and in the event that no sentence remains, the term of which is readily ascertainable from the statute, the prisoner will be discharged from custody.
Frank Thomas Graff, Jr., Charleston, for relator.
C. Donald Robertson, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.
CAPLAN, President:
In this original habeas corpus proceeding instituted in this Court the petitioner, James Stanley Wright, who is presently confined in the penitentiary of this State by virtue of a sentence of life imprisonment as a recidivist imposed by the Circuit Court of Mason County, West Virginia, by its final judgment rendered May 13, 1950, seeks to prevent the enforcement of said life sentence. He further alleges that since he has served the minimum sentence that could be imposed under the statute for armed robbery, he is entitled to be released from custody.
On December 6, 1965, this Court awarded a writ returnable January 12, 1966, and appointed counsel to represent the petitioner in this proceeding. Upon the return day this matter was heard and submitted for decision upon the petition and its exhibits, upon the return of the defendant and its exhibits, upon stipulation of counsel, upon the brief of the petitioner and upon oral argument of counsel for the petitioner and defendant.
The petitioner, on May 1, 1950, was indicted by the grand jury of the Circuit Court of Mason County, West Virginia, for the crime of armed robbery. Counsel was appointed to represent the petitioner and he subsequently entered a plea of not guilty. Upon trial therefor the jury returned a verdict of guilty as charged in the indictment. Thereupon the prosecuting attorney filed an information wherein it was charged that the petitioner twice before had been convicted of felonies, to-wit: in the Circuit Court of Mason County, West Virginia, on May 5, 1927, where he entered a plea of guilty to the theft of a horse, for which he was sentenced to two years in the penitentiary; and in the Circuit Court of Marshall County, West Virginia, in June, 1932 for the crime of escape, for which he was sentenced to the penitentiary for the term of one year.
Upon admission by the petitioner that he was the same person named in the information, the court, in accordance with the provisions of Code, 1931, 61-11-18 and 19, as amended, sentenced the petitioner to life imprisonment in the penitentiary.
It is the contention of the petitioner that in the proceedings wherein he was convicted of two prior felonies he did not have counsel, was not informed of his right to the assistance of counsel and did not waive his right to counsel. He says, therefore, that such convictions are void and can not be used as a basis for the imposition of a life sentence under the recidivist statute. The respondent does not refute this contention and in fact admits that the records relative to the two prior convictions are silent on the matter of assistance of counsel.
It is well established that a state conviction can not stand when founded on a guilty plea by a defendant unaware of his right to counsel or on a record silent as to the matter of the assistance of counsel. State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177; State ex rel. Pettery v. Boles, W.Va., 141 S.E.2d 80; State ex rel. Walls v. Boles, W.Va., 142 S.E.2d 767. Also firmly established is the proposition related in Point 1 of the syllabus in State ex rel. Whytsell v. Boles, W.Va. 141 S.E.2d 70, as follows: '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...
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...imprisoned pursuant to such a sentence may be discharged from such imprisonment by a proceeding in habeas corpus. State ex rel. Wright v. Boles, 150 W.Va. 381, 146 S.E.2d 524; State ex rel. Nicholson v. Boles, 148 W.Va. 229, 134 S.E.2d 576; 21 Am.Jur.2d, Criminal Law Section 534, page 516; ......
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