knowing and intelligent waiver in West Virginia

2019In Syllabus Point 1 of Losh, we held: An omnibus habeas corpus hearing as contemplated in [West Virginia Code § 53-4A-1 to -11] occurs when: (1) an applicant for habeas corpus is represented by counsel or appears pro se having knowingly and intelligently waived his right to counsel; (2) the trial court inquires into all the standard grounds for habeas corpus relief; (3) a knowing and intelligent waiver of those grounds not asserted is made by the applicant upon advice of counsel unless he knowingly and intelligently waived his right to counsel; and, (4) the trial court drafts a comprehensive o

2016Code, 53-4A-1 et seq. (1967) occurs when: (1) an applicant for habeas corpus is represented by counsel or appears pro se having knowingly and intelligently waived his right to counsel; (2) the trial court inquiries into all the standard grounds for habeas corpus relief; (3) a knowing and intelligent waiver of those grounds not asserted is made by the applicant upon advice of counsel unless he knowingly and intelligently waived his right to counsel; and, (4) the trial court drafts a comprehensive order including the findings on the merits of the issues addressed and a notation that the defendan

2013Va.Code § 33-6-31d, and, as such, this Court’s holding in Syllabus point 2 of Bias, 179 W.Va. 125 , 365 S.E.2d 789 , should have been applied exactly as this Court intended therein.

2013Va.Code § 33-6-31d, and, as such, this Court’s holding in Syllabus point 2 of Bias, 179 W.Va. 125 , 365 S.E.2d 789 , should have been applied exactly as this Court intended therein.

1979After setting the issue on the constitutional pedestal, the Court indicated that it was not a fundamental right such that a knowing and intelligent waiver of the right must be shown, and concluded: "Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." [ 425 U.S. at 512-1

1979After setting the issue on the constitutional pedestal, the Court indicated that it was not a fundamental right such that a knowing and intelligent waiver of the right must be shown, and concluded: "Accordingly, although the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." [ 425 U.S. at 512-1

2025In Syllabus Point 2 of Call v. McKenzie, 159 W.

2019Va. 191 , 220 S.E.2d 665 (1975), we found: Where there is a transcript of the colloquy which occurred between the court and the accused before the acceptance of the plea of guilty, and where that transcript conclusively demonstrates that there was a knowing and intelligent waiver of those rights necessarily surrendered as a result of a guilty plea, the issue is res judicata in a subsequent action in habeas corpus and the petition for habeas corpus may be summarily dismissed without an evidentiary hearing.

2000Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938); State v. Rissler, 165 W.Va. 640 , 270 S.E.2d 778 (1980).

2000Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938); State v. Rissler, 165 W.Va. 640 , 270 S.E.2d 778 (1980).

1989West Virginia Code § 48A-2-8 (1989) states that there are two instances in which the guidelines should not be followed: (1) When the child support award proposed to be made pursuant to the guidelines has been disclosed to the parties and each party has made a knowing and intelligent waiver of said amount, and the support obligors have entered into an agreement which provides for the custody and support of the child or children of the parties; or (2) When the child support award proposed to be made pursuant to the guidelines would be contrary to the best interests of the child or children, or c

1989West Virginia Code § 48A-2-8 (1989) states that there are two instances in which the guidelines should not be followed: (1) When the child support award proposed to be made pursuant to the guidelines has been disclosed to the parties and each party has made a knowing and intelligent waiver of said amount, and the support obligors have entered into an agreement which provides for the custody and support of the child or children of the parties; or (2) When the child support award proposed to be made pursuant to the guidelines would be contrary to the best interests of the child or children, or c

2024As this Court has explained, “[o]nce the [litigant] expresses a timely and unequivocal desire to represent himself without the assistance of counsel, it must be ascertained whether the [litigant’s] election to proceed [self-represented] is made knowingly and intelligently.” Id. at 671 , 310 S.E.2d at 188 .

2024As this Court has explained, “[o]nce the [litigant] expresses a timely and unequivocal desire to represent himself without the assistance of counsel, it must be ascertained whether the [litigant’s] election to proceed [self-represented] is made knowingly and intelligently.” Id. at 671 , 310 S.E.2d at 188 .

2020We have previously held that “[a] defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial.” State v. Layton, 189 W.

2019Pt. 2, in part, Gibson v. Dale, 173 W.

2000In syllabus point one of Harris , this Court addressed the standards enunciated by Highland and held that a deviation from such requirements may be justified under certain limited circumstances: The test for determining whether a departure from State v. Highland, 174 W.Va. 525 , 327 S.E.2d 703 (1985), and W.Va.Code, 49-5-16(b) (1982), is permitted is two-fold: (1) Was the particular circumstance (the basis for the proposed departure) adequately taken into consideration at the time the plea agreement was accepted by the circuit court; and (2) If it was, were the plea and the plea agreement a kn

2000In syllabus point one of Harris , this Court addressed the standards enunciated by Highland and held that a deviation from such requirements may be justified under certain limited circumstances: The test for determining whether a departure from State v. Highland, 174 W.Va. 525 , 327 S.E.2d 703 (1985), and W.Va.Code, 49-5-16(b) (1982), is permitted is two-fold: (1) Was the particular circumstance (the basis for the proposed departure) adequately taken into consideration at the time the plea agreement was accepted by the circuit court; and (2) If it was, were the plea and the plea agreement a kn

2000This Court reasoned in Harris : [t]his sequential inquiry will properly focus the efforts of defense counsel and the prosecution upon the key issue raised on the appeal of an order denying a hearing under Highland : Has a defendant by his plea agreement knowingly and voluntarily waived his right to have the court determine at a later time whether to modify his sentence? 195 W.Va. at 49 , 464 S.E.2d at 369 .

2000This Court reasoned in Harris : [t]his sequential inquiry will properly focus the efforts of defense counsel and the prosecution upon the key issue raised on the appeal of an order denying a hearing under Highland : Has a defendant by his plea agreement knowingly and voluntarily waived his right to have the court determine at a later time whether to modify his sentence? 195 W.Va. at 49 , 464 S.E.2d at 369 .

2000Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938); State v. Rissler, 165 W.Va. 640 , 270 S.E.2d 778 (1980).

2000Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938); State v. Rissler, 165 W.Va. 640 , 270 S.E.2d 778 (1980).

1999Thus, any deviation from this constitutional requirement must be accomplished through a knowing and intelligent waiver. [1] This Court has consistently adhered to the view that "[c]ertain constitutional rights are so inherently personal and so tied to fundamental concepts of justice that their surrender by anyone other than the accused acting voluntarily, knowingly, and intelligently would call into question the fairness of a criminal trial." Syl. pt. 5, State v. Neuman, 179 W.Va. 580 , 371 S.E.2d 77 (1988).

1999Thus, any deviation from this constitutional requirement must be accomplished through a knowing and intelligent waiver. [1] This Court has consistently adhered to the view that "[c]ertain constitutional rights are so inherently personal and so tied to fundamental concepts of justice that their surrender by anyone other than the accused acting voluntarily, knowingly, and intelligently would call into question the fairness of a criminal trial." Syl. pt. 5, State v. Neuman, 179 W.Va. 580 , 371 S.E.2d 77 (1988).

1999I do not necessarily dispute the contention that "the fact that the jury at common law was composed of 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance `except to mystics.'" Williams v. Florida, 399 U.S. 78, 102-3 , 90 S.Ct. 1893, 1907 , 26 L.Ed.2d 446 (1970) (holding that it is constitutionally permissible for a state to use jury of six in criminal cases) (citation omitted).

1999I do not necessarily dispute the contention that "the fact that the jury at common law was composed of 12 is a historical accident, unnecessary to effect the purposes of the jury system and wholly without significance `except to mystics.'" Williams v. Florida, 399 U.S. 78, 102-3 , 90 S.Ct. 1893, 1907 , 26 L.Ed.2d 446 (1970) (holding that it is constitutionally permissible for a state to use jury of six in criminal cases) (citation omitted).

1997In the instant case, the trial judge stated (just before the bench trial began) that he had found that Mr. Redden had made a knowing and intelligent waiver of his right to a jury trial. 4 However, because the trial court did not make, specific factual findings going to the knowing, intelligent and voluntary nature of the appellant’s jury trial waiver, we will uphold the trial court’s determination “only if a reasonable review of the evidence clearly supports [the trial court’s determination.]” Farley, 192 W.Va. at 254 , 452 S.E.2d at 56-57 .

1997In the instant case, the trial judge stated (just before the bench trial began) that he had found that Mr. Redden had made a knowing and intelligent waiver of his right to a jury trial. 4 However, because the trial court did not make, specific factual findings going to the knowing, intelligent and voluntary nature of the appellant’s jury trial waiver, we will uphold the trial court’s determination “only if a reasonable review of the evidence clearly supports [the trial court’s determination.]” Farley, 192 W.Va. at 254 , 452 S.E.2d at 56-57 .

1996It must be achieved, however, by the defendant himself in the form of a knowing and intelligent waiver." State v. Hamilton, supra at 726 , 403 S.E.2d at 743 .

1996It must be achieved, however, by the defendant himself in the form of a knowing and intelligent waiver.” State v. Hamilton, supra at 726 , 403 S.E.2d at 743 .