153 W. Va. 76 | W. Va. | 1969
Lead Opinion
Petitioner, Hoyt Edward Riffle, filed his application in this Court on the 12th day of February, 1969, for a writ of habeas corpus alleging that: he was arrested at Park-ersburg in Wood County in March, 1963, and charged with the offense of breaking and entering; he was indicted at the April, 1963, term of the Circuit Court of Wood County and thereafter, also in April, 1963, upon the advice of counsel he entered a plea of guilty to that charge; he was sentenced to a term of one to ten years in the state penitentiary which sentence was suspended and on May 18, 1963, petitioner was placed on probation for a period of five years; on February 26, 1965, he was charged with a violation of probation, his probation was revoked and the order further provides that “the defendant is required to serve said sentence heretofore imposed upon him.”; and, petitioner was thereupon committed to prison where he remains. This Court granted a writ returnable April 22, 1969, and appointed counsel to represent petitioner before this Court.
Counsel filed a supplement to the petition prepared by the petitioner in which it is further alleged that petitioner, subsequent to his confinement, escaped therefrom on May 28, 1965; was recaptured on May 31, 1965; and, on September 24, 1965, was sentenced to fifteen months on his plea of guilty to the charge of escape, such sentence to run consecutively to the one to ten-year sentence. On September 1, 1967, petitioner was released on parole and on July 12, 1968, his parole was revoked and petitioner
Pursuant to the writ the respondent, Frank B. King, Warden, appeared and answered admitting the material allegations of the petition but denying that the petitioner is illegally restrained. Subsequent to the answer the Attorney General moved to substitute Joe Davis Thorn for the respondent King, Thorn having recently succeeded King as Warden, which motion was granted by the Court.
The controlling issue in this case is one of first impression in this Court and has not been passed upon by the Supreme Court of the United States. However, contending to the contrary, counsel for the petitioner asserts that the decision of the Supreme Court of the U. S. in Mempa v. Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L. ed. 2d 336, and the very recent decisions of this Court in State ex rel. Strickland v. Melton, etc., 152 W. Va. 500, 165 S. E.2d 90; State ex rel. Willie Render v. Wood, 152 W. Va. 484, 165 S. E.2d 102 and State ex rel. Phillips v. Wood, 152 W. Va. 568, 165 S. E.2d 105, hereafter referred to as Mempa, Strickland, Render or Phillips, are controlling and that by virtue of the decisions and reasoning in those cases the defendant must be released not only from his one to ten-year sentence for breaking and entering in Wood County but also from the fifteen-month sentence imposed as a result of his conviction for escape in the Circuit Court of Randolph County.
In the Mempa case, the defendant was indicted for a felony in the State of Washington, had counsel at the time of his arraignment and entered a plea of guilty. The trial judge, as he had the authority to do under the laws of the State of Washington, withheld sentencing of the prisoner and instead placed him upon probation. Thereafter the prisoner was accused of violating his probation and a hearing was held. The prisoner was not representéd by counsel at the hearing and at the end of
In the opinion in Strickland is this statement: “Probation is not a sentence for a crime but instead is an act
We are firmly of the view that the due process clauses of the Constitutions of the United States and of this State guarantee to one indicted for a felony counsel at every stage of his trial, at least from the date of his arraignment until final judgment is entered. The Courts of this State have diligently and carefully preserved the rights
It is the view of this Court that the probation of the petitioner was validly revoked within the five-year period after it was granted and therefore that he is still under sentence of one to ten years for breaking and entering in Wood County and at the expiration of that sentence must begin serving the fifteen-month sentence for escape imposed by the Circuit Court of Randolph County.
It is true that this Court has held in State ex rel. McGilton v. Adams, 143 W. Va. 325, 102 S. E.2d 145, that a prisoner incarcerated under a void judgment and sentence who escapes from custody is not guilty of a crime, however, in view of our decision that the petitioner’s confinement at the time of his escape was lawful, it follows that his conviction and sentence for the escape, which is otherwise not challenged, is likewise lawful.
Let the factual record relating to the petitioner be again stated in succinct form upon the question of whether his constitutional rights have been violated: this man was arrested in March, 1963, in Wood County and in April of that year was indicted for breaking and entering; in that same month the Judge of the Circuit Court of Wood County appointed an attorney to represent him and later upon advice of that attorney he entered a plea of guilty and was sentenced to the statutory' term of one to ten years imprisonment; after an investigation by a probation officer of that court the sentence was suspended
“ (1) Drinking intoxicants to such an excess that his behavior became unacceptable;
“ (2) Failing to remain gainfully and steadily employed;
“ (3) Failing to submit monthly supervision reports;
“ (4) Violated special instructions from his parole officer in that he did fail to abide by a 9:00 p.m. curfew;
“ (5) Violated special instructions from his parole officer in that he did frequent places where alcoholic beverages were either sold, used or dispensed;
“ (6) Consorting with one Elsie Bonnett, to whom he was not married.”
Prisoner remanded.
Dissenting Opinion
dissenting:
Being of the opinion that one is entitled to the assistance of counsel at a hearing held to the effect the revocation of his probation, regardless of whether sentence was imposed prior to the grant of probation, I am unable to agree with the opinion of the Court. Therefore, I respectfully dissent.
While I agree that the granting of probation is a matter of grace, as noted in the opinion of the Court and in State ex rel. Strickland v. Melton, 152 W. Va. 500, 165 S. E.2d 90, the revocation thereof is a criminal proceeding where substantial rights of the defendant may be affected and must be accomplished in a constitutional manner. How can it be otherwise? When probation is to be revoked the defendant must be brought before the court where he must be afforded a prompt summary hearing. Code, 1931, 62-12-10, as amended. That statute provides that if it appears to the court, after hearing, that the defendant has violated any condition of his probation such probation may be revoked and he may be imprisoned.
The majority readily acknowledges that “the revocation of probation of the petitioner would have been absolutely invalid if the trial court had not given the petitioner the ‘summary hearing’ provided by Code, 62-12-10, as amended.” What could be the purpose of affording the defendant a hearing if it were not contemplated that he would be given an opportunity to defend against the charge that he had violated his probation? Such hearing would be a futile exercise in procedure and could serve no useful purpose. Can it be denied that at this hearing a substantial right of the defendant may be affected? If the judge finds that he violated his probation he may go to prison; otherwise he may continue on probation and
In Hamrick v. Boles, 231 F. Supp. 507, it was held that in view of the hearing requirement in Code, 1931, 62-12-10, as amended, the denial of such hearing deprived the accused of the equal protection of state law, a right guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. This, I believe, shows conclusively that such hearing is intended to be a meaningful proceeding at which the defendant may prove that he did not violate his probation or where he may be able to show extenuating circumstances which might mitigate the charges against him. Here, as in any other criminal proceeding, he is entitled to the assistance of counsel.
In Mempa Mr. Justice Marshall said, “a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.” The majority interprets that language as meaning that “when probation is revoked and the defendant is for the first time sentenced to the penitentiary that he must have a lawyer whatever the label that is placed upon the hearing.” I disagree with that interpretation. In my opinion, the above quoted statement of Justice Marshall, being in the disjunctive, clearly means that a lawyer must be afforded the defendant at a revocation of probation hearing, whether or not the defendant is to be then sentenced. As heretofore noted, can it be denied that his substantial rights may be affected? Is it not sufficient that such hearing may result in imprisonment for the defendant or his ultimate freedom? Is this not one of those circumstances in which a host of cases, state and federal, have held that the defendant is entitled to counsel?
Dissenting Opinion
dissenting:
I emphatically dissent from the decision of the majority in this habeas corpus proceeding, which discharged the writ previously issued and remanded the prisoner to the custody of the warden of the Medium Security Prison. I dissent for the reason that the ruling of the majority is not only fundamentally unsound and utterly erroneous but is also contrary to the decision of the Supreme Court of the United States in Mempa v. Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336; the decision of the United States District Court for the Northern District of West Virginia in Hamrick v. Boles, 231 F. Supp. 507, and the recent decisions of this Court in State ex rel. Strickland v. Melton, 152 W. Va. 500, 165 S. E.2d 90; State ex rel. Render v. Wood, 152 W. Va. 484, 165 S. E.2d 102; and State ex rel. Phillips v. Wood, 152 W. Va. 568, 165 S. E.2d 105.
I challenge as completely incorrect and manifestly superficial and ill-considered the statement in the majority opinion that the question involved “is one of first impression in this Court and has not been passed upon by the Supreme Court of the United States.” On the contrary, the question of the right of a criminal defendant to the assistance of counsel at a hearing at which his probation is revoked was expressly considered and determined in the Mempa case and in the Strickland and Phillips cases. In each of those cases the right to the assistance of counsel in a proceeding in which the probation of a criminal defendant was revoked by the court in such proceeding was expressly upheld and the revocation of such probation when the probationer was not represented by counsel was held to be void. I submit that anyone who reads with any degree of discrimination
In the Mempa case the language of Justice Marshall was that “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected” and that “a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.” I insist that it can not be asserted with any degree of reason or common sense that substantial rights of a criminal defendant are not affected at a hearing to revoke the probation of a criminal defendant whether he has or has not been sentenced but who, in either instance, is free from confinement while his probation is in effect and whose freedom is involved, and that it can not be reasonably contended that the rights of a criminal defendant who has been placed on probation whether sentence has or has not been imposed are not involved or affected so as to entitle him to the assistance of counsel at a hearing at which his probation is revoked. The charge that he has violated his probation may be false and require the assistance of counsel to establish its falsity and to prevent the imposition of a sentence or the serving of a previously imposed sentence, and in either instance, to prevent imprisonment if his probation is not revoked before the expiration of the period of such probation.
The above quoted statements of Justice Marshall, which the majority in this proceeding say may be “ambiguous” were not so considered by the majority in the
As the writer of the majority opinion in the Strickland case, I felt and still feel that the majority of this Court in that case then entertained the view that a criminal defendant is entitled to the assistance of counsel at any hearing at which his probation is revoked whether he has or has not been sentenced at the time of such revocation. I prepared the opinion in that case in that belief. That such was the holding of the Court in the Strickland case is made clear in the opinion filed by Judge Berry, in which he dissented in part and concurred in part. In the dissenting portion of his opinion he said: “I dissent from the statement contained in the majority opinion that: ‘The reasoning of the court in the Mempa and Walkling cases indicates clearly that the criminal defendant is entitled to the assistance of counsel at any proceeding at which his probation is revoked.’ Apparently, the majority opinion rests the disposition of this case on this statement which will govern all future cases where the criminal defendant did not have the assistance of counsel at the time his probation was revoked regardless of whether sentence had been previously imposed and the criminal
I am unable to observe any valid difference or distinction between the revocation of probation before or after imposition of sentence, for there is none; and any such purported distinction is utterly unwarranted. As all of us know the trial court may and it does grant probation, after conviction and after sentence has been imposed as well as before sentence is imposed. In either instance when probation is granted the probationer is released
Among the numerous fallacies in the majority opinion is the conclusion that inasmuch as the granting of probation is an act of grace, as admittedly and clearly it is, the revocation of probation is likewise an act of grace. Nothing could be more far fetched or illogical or further from the truth. It would be just as ridiculous to conclude that revocation of probation is an act of grace because the grant of probation is an act of grace as it would be to conclude that revocation of a full pardon is an act of grace because the grant of the pardon is an act of grace, or to conclude that revocation by the donor of a completed gift is an act of grace because the gift itself is such an act; for, of course, a pardon once granted can not be revoked and a valid completed gift can not be revoked by the donor without the consent of the donee.
That the revocation of probation is not an act of grace, and does not occur as a matter of right, but may be effected only because of violation of the conditions upon which probation was granted, whether sentence has been imposed, or has been suspended, is clear from the statutory requirement that the probationer shall be brought before the court or the judge which placed him on probation for a prompt and summary hearing to determine whether probation should be revoked for violation of any conditions of the probation. Section 10, Article 12, Chapter 62, Code, 1931, as amended.
Moreover, probation can not be revoked without a hearing provided by statute. Escoe v. Zerbst, 295 U. S. 490,
I repeat: The Supreme Court of the United States in the Mempa case and this Court in the Strickland, Render and Phillips cases have held and recognized, as a requirement of due process, that a probationer be afforded the assistance of counsel at a proceeding at which his probation is revoked whether at the time of such revocation he has or has not been sentenced to confinement. This conclusion is also in complete accord and harmony with the many recent decisions in cases in which the Supreme Court of the United States has required the assistance of counsel for the accused at almost every conceivable stage of a criminal proceeding and has uniformly held that the absence of representation by counsel without the express waiver of that right by the accused is violative of due process and invalidates any judgment which adversely affects his substantial rights. The majority opinion cites no decision of the Supreme Court of the United States in which that court restricts or limits its holding in the Mempa case to revocation of probation at a hearing at which sentence is imposed for the first time and at which the defendant is not represented by counsel, and research by me has failed to find any such decision of that court. That fact lends strength to the contention that the majority in the case at bar should not have engaged in the creation of an unreal and fanciful distinction between a revocation hearing after sentence and such hearing before sentence is imposed. Instead the majority should- have followed the decisions in the Mempa case
For the reasons stated I would release the prisoner, bad actor though he is, from the sentence imposed upon each indictment, and discharge him forthwith from the custody of the defendant, not because of any condonation of his criminal conduct but because of the constitutional requirement that he be afforded due process of law which has not been satisfied in this case.
I am authorized to state that Judge Caplan concurs in the views expressed in this dissenting opinion.