State Ex Rel. Cox v. Boles , 146 W. Va. 392 ( 1961 )

HAYMOND, PRESIDENT:

In this original habeas corpus proceeding instituted in this Court on May 8, 1961, the petitioner, Franklin Acy Cox, seeks a writ to compel the defendant, Otto C. Boles, Warden of West Virginia State Penitentiary at Moundsville, West Virginia, to release the petitioner, who is now confined in the penitentiary, from a sentence of five years imposed by the Circuit Court of Wyoming County on February 18, 1959, in addition to a sentence for an indeterminate period of from one year to ten years at that time also imposed by that court, upon an indictment for a felony to which the petitioner entered a plea of guilty.

To the petition for the writ, with which a copy of the indictment and a copy of the judgment imposing sentence were filed as exhibits, the defendant filed his return and his demurrer on May 23, 1961, and at that time this proceeding was submitted for decision upon the record and the written briefs of the attorneys for the respective parties.

On February 16, 1959, the grand jury of Wyoming County returned an indictment against the petitioner which charged that the petitioner did break and enter a certain storehouse belonging to Winding G-ulf Coals, a corporation, and did steal, take and carry away certain specified goods and chattels of that company of the value of $800.00, against the peace and dignity of the State.

On February 18,1959, as appears from the judgment entered by the circuit court, the petitioner, being present with his attorney, after consulting with his attorney and after the indictment for the felony of breaking and entering had been read to him by the court, entered a plea of guilty to the indictment. The court accepted the plea of the petitioner and sentenced him to confinement in the penitentiary of this State for an indeterminate period of one year to ten years upon the indictment for the principal offense. The judgment then provides: “It further appearing to the court that you were convicted and sentenced to the West Virginia penitentiary from this court on August 20, 1956, the court hereby find you guilty of having committed a second felony, you are therefore sentenced to serve an additional 5 years in said institution. You will be credited with the time spent in jail which is 2 days.”

By a written stipulation, between the attorney for the petitioner heretofore appointed by this Court to represent him in this proceeding and an assistant attorney general who represents the State, it was agreed that copies of the indictment against the petitioner for the principal offense returned February 16, 1959, of the orders of the court appointing an attorney to represent him upon the trial of that indictment, of the final judgment rendered February 18, 1959, of the commitment of the petitioner, and of the certified transcript of the proceedings in court on February 18, 1959, immediately preceding the imposition of sentence by the judgment entered by the court on that date, should be introduced and considered as evidence in this proceeding, and that no information was filed by the prosecuting attorney of Wyoming County during the trial of the petitioner upon the indictment against him for the offense of breaking and entering a storehouse and stealing certain goods and chattels belonging to its owner.

The petitioner contends that the judgment entered by the Circuit Court of Wyoming County on February 18, 1959, to the extent that it sentences him to an additional five year term of imprisonment under Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, known as the habitual criminal statute of this State, is void because no information was filed by the prosecuting attorney which set forth the record of his prior conviction and sentence and identified the petitioner as the person who had been so convicted and sentenced, and because the petitioner was not duly cautioned in connection with his acknowledgment that he was the same person who had been so convicted and sentenced, both of which requirements are prescribed by Section 19 of the statute.

It is well settled by the decisions of this Court that the jurisdiction of a trial court <to sentence to further confinement in the penitentiary a person who is convicted of an offense and is subject to confinement in the penitentiary for such offense depends upon and is derived from Sections 18 and 19, Article 11, Chapter 61, Code, 1931, as amended, which were in effect when the sentence to additional confinement for a period of five years was imposed by the court. Shears v. Adams, 145 W. Va. 250, 114 S. E. 2d 585; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; Bye v. Skeen, 135 W. Va. 90, 62 S. E. 2d 681, 24 A.L.R. 2d 1234. This Court has also held that the provisions of Section 19 of the statute are mandatory and must be complied with fully for the imposition of a valid sentence of further confinement under the statute. State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892; State ex rel. Housden v. Adams, 143 W. Va. 601, 103 S. E. 2d 873; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740.

The judgment of the circuit court by which the petitioner was sentenced to be confined in the penitentiary for an indeterminate period of one year to ten years and an additional term of five years because of his prior conviction and sentence for a felony is silent with respect to the proceedings had at the time of the entry of the judgment. When the record of a court of general jurisdiction is merely silent with respect to a matter affecting its jurisdiction the presumption that it satisfied and complied with all jurisdictional requirements for the entry of a valid judgment will be accorded prevailing force and effect; and a judgment imposing a sentence of imprisonment, which is valid on its face and is not contradicted by any showing in the record, is not subject to attack in a habeas corpus proceeding. Shears v. Adams, 145 W. Va. 250, 114 S. E. 2d 585; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; State ex rel. Lovejoy v. Skeen, 138 W. Va. 901, 78 S. E. 2d 456, certiorari denied, 349 U. S. 940, 75 S. Ct. 786, 99 L. Ed. 1268.

It affirmatively appears, however, from the record in this proceeding and the stipulation in writing between the attorney for the petitioner and an assistant attorney general that no information concerning the prior conviction and sentence of the petitioner was ever filed by the prosecuting attorney and that the petitioner, before he acknowledged his identity as the person who had been previously convicted and sentenced, was not duly cautioned by the court. These two mandatory requirements of the statute were not complied with in connection with the imposition of the additional five year period of confinement; and for that reason the circuit court was without jurisdiction to impose that additional confinement upon the petitioner and that portion of the sentence imposed by the judgment entered February 18, 1959, is void and of no force and effect. State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740; State ex rel. Medley v. Skeen, 138 W. Va. 409, 76 S. E. 2d 146; Dye v. Sheen, 135 W. Va. 90, 62 S. E. 2d 681, 24 A.L.R. 2d 1234; Ex parte Evans, 42 W. Va. 242, 24 S. E. 888; Ex parte Mooney, 26 W. Va. 36, 53 Am. St. Rep. 59. In State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892, this Court held in point 2 of the syllabus that: “In the absence of a written information filed with the court, setting forth the previous conviction and sentence, or convictions and sentences, an additional sentence imposed, under the provisions of Code 61-11-18, as amended by Chapter 26, Acts of the Legislature, Regular Session 1939, as amended by Chapter 31, Acts of the Legislature, Regular Session, 1943, is void. ”

The judgment which sentenced the petitioner to an additional confinement of five years, being in excess of the imprisonment for an indeterminate period of one year to ten years, the maximum sentence of imprisonment which the circuit court had jurisdiction to pronounce upon the plea of guilty entered by the petitioner to the indictment against him for breaking and entering, is a void judgment to the extent that it exceeds the maximum sentence of one year to ten years. A judgment which is wholly void, or is void in part, is subject to collateral attack in a habeas corpus proceeding. State ex rel. Yokum v. Adams, 145 W. Va. 450, 114 S. E. 2d 892; State ex rel. Browning v. Tucker, 142 W. Va. 830, 98 S. E. 2d 740, and the numerous authorities cited in the opinion in that case.

The sentence of confinement for the additional period of five years, being void, can not be enforced. The relief from that portion of the sentence imposed upon the petitioner, as prayed for by him, is granted, and the petitioner, after completely serving the valid portion of his sentence, must be released. At this time, however, he has not served the valid portion of his indeterminate sentence of one year to ten years. For this reason a writ which would presently release him from confinement is denied and the petitioner is remanded to the custody of the defendant until he has completely served- the valid portion of his sentence of confinement in the penitentiary of this State.

Writ discharged, petitioner remanded to custody.