Williams v. Coiner, 11184.
| Decision Date | 06 March 1968 |
| Docket Number | No. 11184.,11184. |
| Citation | 392 F.2d 210 |
| Parties | Ted WILLIAMS, Appellant, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Successor to Otto C. Boles, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George K. Walker, Richmond, Va. (Court-assigned counsel) Hunton, Williams, Gay, Powell & Gibson, Richmond, Va., on brief, for appellant.
Thomas B. Yost, Asst. Atty. Gen. of West Virginia , for appellee.
Before SOBELOFF and BUTZNER, Circuit Judges, and MERHIGE, District Judge.
Appealing the denial of his petition for a writ of habeas corpus, Williams, a West Virginia prisoner since 1936, raises two seemingly meritorious claims. He alleges that he is currently serving a life sentence on an unconstitutional recidivist charge premised in part upon two earlier felony convictions obtained when he was without benefit of counsel. Williams also alleges that because of his indigence he was deprived the right to appeal his 1936 conviction.
The threshold question is whether Williams is now serving a life sentence for armed robbery, as the District Court found, or for recidivism, as the prisoner maintains. In 1935, the Grand Jury of Nicholas County, West Virginia, charged Williams with taking $34 in an armed robbery. In the indictment, preceding the robbery allegation, the Grand Jury specifically presented that the defendant had "twice been sentenced to confinement in the State Penitentiary." Pleading not guilty to the substantive offense of armed robbery, Williams admitted to the court that he had previously served terms of two and five years, in 1928 and 1930, respectively, upon pleas of guilty to charges of breaking and entering. Faced only with the issue of Williams's guilt or innocence of the holdup, the jury found him "guilty of armed robbery as charged in the within indictment." The court then took under advisement the problem of sentencing Williams.
At the time of sentencing, the state armed robbery statute permitted any sentence not less than the minimum confinement of ten years in the state penitentiary. W.Va.Code § 5927 (1932) now W.Va.Code § 61-2-12 (1966). On the other hand, West Virginia's recidivist statute required a life sentence for anyone who had twice before served penitentiary terms and was again found guilty of a felony. W.Va.Code § 6131 (1932) now W.Va.Code § 61-11-18 (1966). The law required that such earlier prison terms be alleged in an indictment and be either admitted by the defendant or found true by the jury.
The trial court, to whom Williams had admitted his earlier imprisonments in the penitentiary, sentenced the defendant to a life term. The court cited no statutory authority for the sentence and did not articulate whether he was sentencing Williams for armed robbery alone or for recidivism. With regard to the sentence, the court said only: "It is therefore considered by the court that the defendant Ted Williams be confined and imprisoned in the penitentiary of the State of West Virginia for and during his natural life * * *."
Inexplicably, the state courts and the federal District Court found that Williams was sentenced solely for armed robbery, thereby obviating the necessity of inquiring into the validity of the two prior convictions which were alleged in the indictment and upon which a recidivist sentence could have been predicated. The District Court announced no reason for its finding. In the record which is before us and which was before the District Court there is no indication that this armed robbery was particularly heinous or involved circumstances justifying so harsh a punishment. Moreover, as we read West Virginia's law, the trial judge was under a duty to impose a life sentence for recidivism. See State ex rel. Wright v. Boles, 150 W.Va. 381, 146 S.E.2d 524 (1966); see also Anderson v. McClintic, 115 W.Va. 329, 175 S.E. 857 (1934). Consequently, we conclude, as a matter of law, that Williams is currently serving a recidivist sentence based in part upon his convictions in 1928 and 1930, and that the finding of the District Court is clearly erroneous.
Manifestly, the West Virginia habitual offender statute, under which petitioner was sentenced, contemplates constitutionally valid underlying convictions. Graham v. State of West Virginia, 224 U.S. 616, 625, 32 S.Ct. 583, 56 L.Ed. 917 (1912). Nothing less will do. As the Supreme Court recently stated, Burgett v. State of Texas, 389 U.S. 109, 115, 87 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967) (emphasis added). If Williams can establish the invalidity of either or both of his prior convictions, then obviously the recidivist sentence will also fall, Tucker v. Peyton, 357 F.2d 115, 116 (4th Cir. 1966); United States ex rel. Savini v. Jackson, 250 F.2d 349, 355 (2nd Cir. 1957).
Williams's contention, uncontradicted to this point,1 is that he was unrepresented by counsel at his 1928 and 1930 convictions and was not informed on those occasions that he had a right to the assistance of either retained or appointed counsel. Federal and state habeas corpus adjudications make it abundantly clear that if a petitioner was not informed of his right to counsel at one or more of the convictions underlying a recidivist sentence, or if the records of those convictions are silent as to counsel, then the habitual offender conviction is null and void. United States ex rel. Easterling v. Wilkins, 303 F.2d 883 (2d Cir. 1962); United States ex rel. Savini v. Jackson, supra; State ex rel. Johnson v. Boles, 151 W.Va. ___, 151 S.E.2d...
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