Pettus v. Peyton , 207 Va. 906 ( 1967 )

Eggleston, C. J.,

delivered the opinion of the court.

At the December, 1957 term of the Circuit Court of Mecklenburg county two indictments were found against Daniel Pettus and four others. One indictment charged them with felonious escape. The other charged that they, “In and upon one W. F. Harris, feloniously did make an assault, and the said W. F. Harris, in bodily fear, feloniously did put, and one shotgun of the value of One Hundred ($100) Dollars, being the property of the Commonwealth of Virginia, in lawful possession and custody of the said W. F. Harris, from the person and against the will of the said W. F. Harris, then and there, on the day and year aforesaid, in the county aforesaid, feloniously and violently did steal, take and carry away, against the peace and dignity of the Commonwealth.”

Jesse R. Overstreet, Jr., a local attorney, was appointed to represent Pettus on the charges preferred in the two indictments. On Over-street’s recommendation Pettus pleaded guilty to both indictments. Upon consideration of the plea and after hearing the evidence, the trial court entered an order sentencing Pettus to serve two years in the penitentiary on the escape indictment, and another order sentencing him to serve eight years on the other indictment. This latter order recites that the defendant “stands indicted of a felony, to wit: Larceny and Assault;” that upon being “duly arraigned and after being advised by his counsel [he] pleaded guilty to the indictment, which plea was tendered by the accused in person;” that “the court being of the opinion that the accused fully understood the nature and effect of his plea, proceeded to hear and determine the case without the intervention of a jury provided by law, and having heard the evidence doth find the accused guilty of a felony (larceny and assault) as charged in the indictment, and ascertain his punishment to be confinement in the penitentiary of this Commonwealth for the term of eight (8) years.”

On April 10, 1964, Pettus filed in the Supreme Court of Appeals a petition for a writ of habeas corpus attacking the judgment of conviction entered on the second indictment, on the grounds among others, that the indictment was void because it charged two offenses, “larceny and assault”, in a single count; that the order finding him guilty of such charges was void, and that he was denied the effective assistance of counsel at the trial.

The respondent filed an answer to the petition and, pursuant to Code, § 8-598, as amended, we entered an order remanding the case to the Circuit Court of Mecklenburg county for an plenary hearing on the allegations set forth in the petition. Falcon Hodges, a member of the Mecklenburg county bar, was appointed to represent the petitioner in the habeas corpus proceeding. After hearing the evidence the court entered an order denying and dismissing the petition for a writ of habeas corpus. We granted the petitioner a writ of error to review the latter order.

While the petitioner made several assignments of error, he says in his brief that they involve the single underlying contention that at the criminal trial he was denied the effective assistance of counsel guaranteed to him under the State and Federal Constitutions. He argues that the assistance was ineffective because, he says, his court-appointed counsel failed to note and object to these fatal defects in the proceeding, that: (1) he was charged in a single count in the indictment with two separate offenses, robbery and larceny; (2) he was indicted and convicted of “larceny and assault” when there is no such offense; and (3) the evidence introduced at the trial was insufficient to convict him of armed robbery.

There is no conflict in the evidence. On November 15, 1957, Pettus, a convict, was assigned to work on a public road in Mecklen-burg county. He and other prisoners were guarded by W. F. Harris who had a shotgun in his possession. In some manner not clearly shown, Pettus got possession of the gun from the guard, and he and his four companions disarmed the guard and escaped from custody. Shortly thereafter they were apprehended and later indicted.

Overstreet, who had been appointed to represent Pettus on the charges preferred in the two indictments, conferred with the Commonwealth’s attorney with respect to what recommendation the latter would make to the court should Pettus plead guilty to the indictments. It was agreed between them that if Pettus would plead guilty the Commonwealth’s attorney would recommend that he be sentenced to two years on the escape indictment and eight years on the robbery indictment, the terms to run consecutively.

Overstreet went to see Pettus at the camp where he was being confined and told him of the nature of the charges which had been made against him — that in one indictment he was charged with felonious escape and in the other “with armed robbery.” He told him of his right to be tried by a jury or by the court. He further told Pettus of the agreement which he had with the Commonwealth’s attorney with respect to the recommendation which the Commonwealth’s attorney would make to the court for the punishment which he (Pettus) would receive should he plead guilty to the two indictments. Overstreet said that Pettus agreed to this arrangement.

Pettus testified that he knew from his talk with Overstreet that he (Pettus) “was charged with robbery;” that he understood the agreement between Overstreet and the Commonwealth’s attorney, and that pursuant thereto he agreed to plead guilty to the two indictments. He said that it was his own “voluntary decision” to do so, because he knew what he had done and “wanted to go ahead and plead guilty.” He further said that there were no witnesses to be called on his behalf at the trial and he so advised his counsel. Pettus was asked by the trial court, “Did the attorney fail to do anything you requested him to do or anything of that nature?” He replied, “No, sir, he did not.”

The evidence further shows that the agreement between Overstreet and the Commonwealth’s attorney as to the recommended punishment was approved by the court and carried out. A charge of larceny as a separate charge was nol prossed, and Pettus received a term of eight years under the robbery indictment, which was the minimum sentence then prescribed in the statute for robbery by violence or intimidation. Code of 1950, § 18-163.^* He also received a sentence of two years for felonious escape. Code of 1950, §§ 53-291, 53-293.

In this State there is no statutory definition of robbery, although Code of 1950, § 18-163, in effect at the time of the alleged offense, fixes the punishment therefor. Hence, with us, the elements of robbery are the same as at common law. Mason v. Commonwealth, 200 Va. 253, 105 S. E. 2d 149. In that case we adopted the common-law definition of robbery as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” 200 Va. at 254, 105 S. E. 2d at 150. See also, Pierce v. Commonwealth, 205 Va. 528, 532, 138 S. E. 2d 28, 31.

The indictment in the present case is sufficient to charge common-law robbery. It appears from the testimony of both the petitioner and his counsel that the petitioner knew and fully understood that under the indictment he was charged with that offense. It further appears from petitioner’s own testimony that he admitted to his counsel that he was guilty of the charge, that there were no witnesses who could be called in his behalf, and that he desired to plead guilty.

The recorded judgment of the trial court shows that the petitioner pleaded guilty to the indictment “in person” and that the court was satisfied that he “fully understood the nature and effect of his plea.” Moreover, the recorded judgment further recites that after “having heard the evidence” the court found the petitioner “guilty of a felony (larceny and assault) as charged in the indictment.” Since the order found the petitioner guilty “as charged in the indictment,” the description of the charge as “larceny and assault” should be discarded as surplusage. This is especially so since the charge of larceny had been withdrawn or nol prossed. As the court pointed out in its decision denying the writ, the petitioner’s own testimony showed that he “knew he was being tried for robbery rather than larceny.” Thus, the alleged duplicity in the indictment is entirely immaterial.

Smyth v. White, 195 Va. 169, 77 S. E. 2d 454, is pertinent here. In that case we held that where an accused knew that he was being tried for robbery and fully understood the purport of his written plea of guilty, no constitutional right was invaded even if the indictment were defective. See also, Cunningham v. Hayes, 204 Va. 851, 134 S. E. 2d 271.

In refusing to grant the writ of habeas corpus, the lower court expressly found that there was no evidence of lack of effective assistance of counsel at the criminal trial. It pointed out that petitioner’s counsel was a competent attorney, that he fully investigated the case, found out from the petitioner himself and others involved that he had no defense to the charges, explained to him his constitutional rights, and effected with the Commonwealth’s attorney a compromise, with the result that the charge of larceny was withdrawn and the petitioner received the minimum punishment for robbery by violence or intimidation then prescribed by the statute. We fully agree with this conclusion.

The petitioner’s final contention is that the evidence submitted at the criminal trial was insufficient to sustain a conviction of armed robbery. It is well settled that such a contention must be asserted in a direct appeal from, or writ of error to, the original judgment and cannot be made by a collateral attack on that judgment in a habeas corpus proceeding. Smyth v. Bunch, 202 Va. 126, 131, 132, 116 S. E. 2d 33, 37, 38; Willoughby v. Smyth, 194 Va. 267, 272, 72 S.E.2d 636, 639; 39 C. J. S., Habeas Corpus, § 29-j, p. 518.

The judgment is

Affirmed.

* This penalty was reduced by Acts of 1960, ch, 358, p. 433, to five years. Code, § 18.1-91 [Repl. Vol. I960],