State ex rel. Riffle v. Thorn , 153 W. Va. 76 ( 1969 )

Browning, Judge:

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probation for a period of five years; on February 26, 1965, he was charged with a violation of probation, his probation was revoked and the order further provides that “the defendant is required to serve said sentence heretofore imposed upon him.”; and, petitioner was thereupon committed to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 On September 1, 1967, petitioner was released on parole and on July 12, 1968, his parole was revoked and petitioner was remanded to Medium Security Prison. The supplement to the original petition alleges that petitioner “is now a trustee at the W. Va. Department of Public Safety, Company “D” Headquarters, in Beckley, West Virginia.” Exhibits filed with the supplement to the petition include the Court’s orders of May 18, 1963, February 26, 1965, September 24, 1965 and the order revoking petitioner’s parole on July 12, 1968. The order of May 18, 1963, reads in part as follows: “. . . it is, therefore, adjudged and ordered by the Court that the said defendant be confined in the Penitentiary of the State of West Virginia, for a period of not less than one (1) year nor more than ten (10) years, said sentence to begin as of the 7th day of April, 1963, . . .” The order continues “. . . And the Court having maturely considered said report and the defendant’s motion for probation heretofore made at a former day of this term, is of the opinion to and doth sustain said motion. It is, therefore, adjudged and ordered that the said defendant be placed upon probation and good behavior for a period and term of five (5) years from the date of this order, . . .” Thereafter follows the conditions of his probation. The order of February 26, 1965, is as follows: “Hoyt Edward Riffle, who was heretofore convicted in this Court of a felony . . . and was placed upon probation by an order entered on the 18th day of May, 1963, was this day again set to the bar in custody of the Jailor of Wood County. And it appearing to the Court from the report of the Probation Officer of this Court, that the defendant has not been of good behavior and has violated the terms of his probation, it is therefore considered and ordered by the Court that so much of said order of May 18, 1963, placing said defendant on probation be and the same is hereby set aside, and that so much of said order committing defendant to the Penitentiary of this State for a period of not less that (sic) one (1) year nor more than ten (10) years be and the same is, in full force and effect, and it is ordered that'the Defendant is required to serve said sentence heretofore imposed upon him. Said sentence to begin as of this date. Whereupon, prisoner is remanded to jail.”

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 the hearing the judge revoked the probation theretofore granted and sentenced the prisoner to the maximum term provided by law for that offense in the State of Washington. Under the law of the State of Washington a trial judge having criminal jurisdiction is required to impose the maximum sentence provided by law for the offense of which the defendant has been convicted whether the conviction is by jury trial or by plea of guilty. The statute further provides that the judge shall recommend the length of time that he believes the prisoner should serve before being paroled, all of which is, of course, for the guidance of the Board of Probation and Parole of that State. In the Mempa case the Supreme Court of Washington denied the petitioner’s prayer to be released from prison, in habeas corpus but upon writ of certiorari the Supreme Court of the U. S. reversed the judgment. In the opinion by Justice Marshall the court held that an attorney must be afforded a defendant at proceedings at which probation is revoked and a sentence of imprisonment is imposed. Judge Marshall further stated and here I quote him: “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.” It may be that the last quoted statement is ambiguous as seems evident from the opinion in the Strickland case in this Court. It is not the view of a majority of this Court that Judge Marshall stated or meant to state that a lawyer must be afforded a prisoner in a revocation of probation hearing where the prisoner has theretofore been sentenced with his attorney present. We interpret 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.

In the opinion in Strickland is this statement: “Probation is not a sentence for a crime but instead is an act of grace upon the part of the State to a person who has been convicted of a crime.” In Escoe v. Zerbst, 295 U. S. 490, 55 S. Ct. 818, 79 L. Ed. 1566, the Supreme Court of the United States said that “Probation or suspension of sentence comes as an act of grace to one convicted of a crime,” but that revocation of probation without the hearing provided for by federal statute “is invalid for defect of power, . . .” This Court is in agreement with that statement and 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. See also Hamrick v. Boles, 231 F. Supp. 507. Petitioner’s Exhibit No. 2 is a certified copy of the order of the Circuit Court of Wood County of February 26, 1965, revoking the petitioner’s probation. It clearly states that he was “this day again set to the bar in custody of the Jailor” and it having been determined that he had violated the terms of his probation further stated that so much of the court’s order of May 18, 1963 “committing defendant to the Penitentiary of this State for a period of not less than one (1) year nor more than ten (10) years be and the same is, in full force and effect, and it is ordered that the Defendant is required to serve said sentence heretofore imposed upon him.” It is clear beyond doubt from the language of that order that this case, to repeat, is clearly distinguishable from Mempa, Strickland, Render and Phillips and any statement contained in the opinion of any of the cases to the contrary is clearly obiter dictum. There can be no rule of law pronounced in any decision of any court that is not predicated upon the facts of the case adjudicated.

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 of- those accused of crime 'guaranteed by Article 3-,- Section 14, .of.the Constitution of this State among which .is. that they “shall have. the assistance of counsel”.. That- procedure has been followed in this State for 106 years. On the,contrary it would appear.that the Supreme Court of the United. States did not.until the year 1938 invoke the provisions of the Sixth Amendment of the Constitution of the United States to find that a conviction for crime in a. federal court was void wherein the prisoner had not been provided with or had not intelligently waived his right to an attorney. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1129.

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 and on May 18, 1963, he was placed on probation for a period of five years; on February 26, 1965, the petitioner upon written allegation that he had violated the terms of his probation was given the “summary hearing” provided by Code, 62-12-10, as amended, his probation was revoked and as heretofore stated he was required to serve the sentence theretofore imposed; on April 13, 1965, the petitioner was transferred from the State Penitentiary to the Medium Security Prison at Huttonsville, Randolph County; on May 28,1965, he escaped from that institution; he was recaptured May 31, 1965; thereafter he was indicted by a Grand Jury of Randolph County for escaping from that institution whereupon the trial judge appointed a competent attorney to represent the defendant; on September 24, 1965, defendant pleaded guilty and as heretofore stated was sentenced to fifteen months imprisonment, the sentence to begin at the end of the one to ten-year sentence he had been serving when he escaped; on September 1, 1967, the petitioner was released on parole by the W. Va. Board of Probation and Parole from the Medium Security Prison at Huttonsville; and on the 12th day of July, 1968, in the manner provided by statute the petitioner’s parole was revoked for having violated its terms in the following ways:

“ (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.”

Upon the writ of habeas corpus heretofore awarded the prisoner is remanded to custody.

Prisoner remanded.