State v. Sims

Decision Date14 November 1978
Docket NumberNo. 13906,13906
Citation248 S.E.2d 834,162 W.Va. 212
PartiesSTATE of West Virginia v. Paul Emerson SIMS.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. A direct appeal from a criminal conviction based on a guilty plea will lie where an issue is raised as to the voluntariness of the guilty plea or the legality of the sentence.

2. The controlling test as to the voluntariness of a guilty plea, when it is attacked either on a direct appeal or in a habeas corpus proceeding on grounds that fall within those on which counsel might reasonably be expected to advise, is the competency of the advice given by counsel.

3. Before a guilty plea will be set aside based on the fact that the defendant was incompetently advised, it must be shown that (1) counsel did act incompetently; (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial; (3) the guilty plea must have been motivated by this error.

4. W.Va.Code, 61-2-1, alters the scope of the common law felony-murder rule by confining its application to the crimes of arson, rape, robbery or burglary, or the attempt to commit such crimes.

5. W.Va.Code, 61-2-1, was not designed primarily to define the substantive elements of the particular types of first degree murder, but rather was enacted to categorize the common law crimes of murder for the purpose of setting degrees of punishment.

6. W.Va.Code, 61-2-1, enumerates three broad categories of homicide constituting first degree murder: (1) murder by poison, lying in wait, imprisonment, starving; (2) by any wilful, deliberate and premeditated killing; (3) in the commission of, or attempt to commit, arson, rape, robbery or burglary.

7. The crime of felony-murder in this State does not require proof of the elements of malice, premeditation or specific intent to kill. It is deemed sufficient if the homicide occurs accidentally during the commission of, or the attempt to commit, one of the enumerated felonies.

Galbraith, Seibert, Kasserman, Farnsworth, Gillenwater & Glauser, Elba Gillenwater, Jr., Wheeling, O'Brien & Cassidy, Patrick S. Cassidy, Wheeling, for plaintiff-in-error.

Chauncey H. Browning, Atty. Gen., Gregory E. Elliott, Asst. Atty. Gen., Charleston, for defendant-in-error.

MILLER, Justice:

Paul Sims, after pleading guilty to first degree murder, contends that he was coerced into the plea as a result of the trial court's ruling in connection with the felony-murder rule.

The claimed coercion occurred when the trial court ruled preliminarily to the trial that as a matter of law Sims' defense of an accidental discharge of his shotgun during the commission of a burglary would not permit the jury to reduce the crime below first degree murder. We refuse to overturn the guilty plea.

The operative facts are these: Around 2:00 a. m. on January 16, 1976, the defendant Paul Sims, Clay Grimmer and Arthur Burns went to the home of Mr. and Mrs. Oscar Schmidt located in Brooke County, West Virginia. After cutting the telephone wires on the outside of the house, Sims and Burns proceeded onto the front porch of the home. Both men were armed. Sims carried a 20-gauge sawed-off shotgun and Burns had a pistol.

The Schmidts' bedroom adjoined the porch. While Sims remained on the porch adjacent to the windows, his companion Burns broke the windows and stepped through them into the bedroom. Sims pointed his shotgun and a flashlight into the bedroom. Shortly after Burns had entered the bedroom, Walter Schmidt, the son of Oscar Schmidt, entered the bedroom from another portion of the house.

Apparently as a result of this distraction, Oscar Schmidt was able to seize his pistol and fire it at Sims. The bullet struck Sims' right arm, and he claimed this caused an involuntary muscle spasm in his trigger finger which resulted in the discharge of the shotgun, killing Walter Schmidt.

In support of the defendant's theory that the bullet wound caused an involuntary muscle reaction, his attorneys took a deposition from the neurologist who treated him for the injury. Since the doctor was not available for testimony at the trial, the prosecuting and defense attorneys stipulated that his deposition would be read at trial.

Based upon his examination and treatment of the defendant's wound, together with his expert knowledge of the involved nerves and muscles, the doctor concluded it was possible that the bullet wound caused an involuntary muscle reflex resulting in the discharge of the shotgun.

It is to be noted that the State did not agree with the involuntary reflex theory and vigorously cross-examined the doctor, who conceded that the same type of wound might instead have caused the defendant to drop the gun.

The trial court proceeded to rule In limine that even assuming the defendant's theory to be true, it would not present a factual defense to mitigate the first degree murder verdict required under this State's felony-murder rule.

I

Initially, we recognize that this is a direct appeal from a sentence imposed on a guilty plea and that in the second syllabus of State ex rel. Wright v. Boles, 149 W.Va. 371, 141 S.E.2d 76 (1965), we stated "An appeal ordinarily does not lie in a criminal case from a judgment of conviction rendered upon a plea of guilty."

Notwithstanding this general rule, this Court has entertained direct appeals in criminal convictions based on a guilty plea. See, e. g., State v. Barnett, W.Va., 240 S.E.2d 540 (1977); State v. Cunningham, W.Va., 236 S.E.2d 459 (1977); State v. Stone, 101 W.Va. 53, 131 S.E. 872 (1926); State v. Hill, 81 W.Va. 676, 95 S.E. 21 (1918).

In none of the foregoing cases has there been any attempt to formulate a rule as to when a direct appeal would be appropriate. However, it is clear that in each of these cases there was a claim made relating to the voluntariness of the guilty plea. In other jurisdictions it has been rather uniformly recognized that there are limited grounds which will warrant the direct appeal of a criminal conviction based on a guilty plea. The Pennsylvania court has expressed this principle in Commonwealth v. Bunch, 466 Pa. 22, 351 A.2d 284 (1976):

"We have in the past repeatedly held that the only grounds for appeal following a guilty plea which has resulted in a judgment of murder in the second degree are the voluntariness of the plea and the legality of the sentence (including in the latter category the jurisdiction of the sentencing court)." (Pa. 351 A.2d at 286)

See, e. g., McKinnon v. State, 526 P.2d 18 (Alaska 1974); State v. Lerner, 113 Ariz. 284, 551 P.2d 553 (1976) (by implication); People v. Laudermilk, 67 Cal.2d 272, 61 Cal.Rptr. 644, 431 P.2d 228 (1967), Cert. denied, 393 U.S. 861, 89 S.Ct. 139, 21 L.Ed.2d 128; People v. Rondeau, 8 Ill.App.3d 286, 291 N.E.2d 666 (1972); Henderson v. State, 198 Kan. 655, 426 P.2d 92 (1967) (by implication); State v. Torres, 281 So.2d 451 (La.1973); English v. State, 16 Md.App. 439, 298 A.2d 464 (1973); People v. Francabandera, 33 N.Y.2d 429, 354 N.Y.S.2d 609, 310 N.E.2d 292 (1974); State v. Saylors, 70 Wash.2d 7, 422 P.2d 477 (1966).

We conclude that a direct appeal from a criminal conviction based on a guilty plea will lie where an issue is raised as to the voluntariness of the guilty plea or the legality of the sentence. However, there remains the question of the scope of review available.

There is an obvious parallelism between a direct appeal attacking the voluntariness of a guilty plea and utilizing a writ of habeas corpus to attack the guilty plea. In Call v. McKenzie, W.Va., 220 S.E.2d 665 (1975), we discussed to some degree the scope of review available in habeas corpus where a guilty plea had been made. There, we relied upon the Brady Trilogy, where the United States Supreme Court held that where a guilty plea is sought to be set aside in habeas corpus on the basis that it was induced by an unconstitutional confession, the controlling test is the competency of the advice given by the defendant's counsel. 1 Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

In Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), this standard was extended to cover other legal or factual defenses which may exist and upon which counsel may be expected to reflect and advise the defendant. Tollett stated the standard of competency for counsel as follows:

"A guilty plea, voluntarily and intelligently entered, may not be vacated because the defendant was not advised of every conceivable constitutional plea in abatement he might have to the charge, no matter how peripheral such a plea might be to the normal focus of counsel's inquiry. And just as it is not sufficient for the criminal defendant seeking to set aside such a plea to show that his counsel in retrospect may not have correctly appraised the constitutional significance of certain historical facts, McMann, supra, it is likewise not sufficient that he show that if counsel had pursued a certain factual inquiry such a pursuit would have uncovered a possible constitutional infirmity in the proceedings." (411 U.S. at 267, 93 S.Ct. at 1608, 36 L.Ed.2d at 243)

Accordingly, the controlling test as to the validity of a guilty plea, when it is attacked in a habeas corpus proceeding on grounds that fall within those on which counsel might reasonably be expected to advise, is the competency of the advice given by counsel.

Arising from this rule are several requirements which must be met in order for the habeas corpus attack to be successful in this area. First, it must be shown that counsel did act incompetently under the Tollett standard. Second, the incompetency must relate to a matter which would substantially affect the fact-finding process if the case had proceeded to...

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