In a trial in a Virginia court at which he requested but was
denied counsel, petitioner was convicted of having been three times
convicted and sentenced for felonies, and he was sentenced to 10
years' additional imprisonment. The applicable statute provides
that, when it appears that a person convicted of an offense has
been previously sentenced "to a like punishment," he may be tried
on an information that alleges "the existence of records of prior
convictions and the identity of the prisoner named in each," and it
leaves to the trial court's discretion the length of the sentence
which may be imposed for three or more convictions. Under Virginia
law, not only the identity of the prisoner and the existence of the
records, but also the validity of the prior convictions, may be at
issue in such a proceeding.
trial on a charge of being a habitual criminal is
such a serious one, the issues presented under Virginia's statute
are so complex, and the potential prejudice resulting from the
absence of counsel is so great that petitioner's trial and
conviction without counsel violated the Due Process Clause of the
Fourteenth Amendment. Pp. 368 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was sentenced to 10 years in prison under Virginia's
recidivist statute. Va.Code, 1950, § 53-296. This statute provides
that, when it appears that a person convicted of an offense has
been previously sentenced "to
Page 368 U. S. 444
a like punishment," he may be tried on an information that
alleges "the existence of records of prior convictions and the
identity of the prisoner with the person named in each." The
statute goes on to provide that the prisoner may deny the existence
of any such records, or that he is the same person named therein,
If the existence of the records is denied, the court determines
whether they exist. If the court so finds and the prisoner denies
he is the person mentioned in the records or remains silent, a jury
is impaneled to try that issue. If the jury finds he is the same
person and if he has one prior conviction, the court may sentence
him for an additional term not to exceed five years. If he has been
twice sentenced, the court may impose such additional sentence as
it "may deem proper."
Petitioner, then imprisoned in Virginia, was charged with having
been three times convicted of and sentenced for a felony. He was
accordingly tried under the recidivist statute; and he is now
serving the sentence imposed at that trial. He brought this habeas
corpus proceeding in the Virginia courts to challenge the legality
of that sentence. The crux of his complaint was that he was tried
and convicted without having had the benefit and aid of counsel,
though he had requested one. [Footnote 1
] The Law and Equity Court of Richmond denied
relief; and the Supreme Court of Appeals of Virginia refused a writ
of error. While the grounds for the action of the Supreme Court of
Appeals are not disclosed, the Law and Equity Court wrote an
opinion, making clear that it ruled on the federal constitutional
"As to the mandate of the Fourteenth Amendment to the
Constitution of the United States, here relied upon, the converse
has been adjudicated. In Gryger
Page 368 U. S. 445
v. Burke, 334 U. S. 728
, where release
[on] habeas corpus was sought on the ground that petitioner was
without counsel at his recidivist hearing, Mr. Justice Jackson
said, in part, as follows (at p. 334 U. S.
" . . . the State's failure to provide counsel for this
petitioner on his plea to the fourth offender charge did not render
his conviction and sentence invalid."
"This holding was adhered to in Chandler v. Fretag,
348 U. S.
, where it was decided that, while a State is not
required under the Fourteenth Amendment to furnish counsel, it
cannot deny the defendant in a repeater hearing of the right to be
heard by counsel of his own choice."
The Law and Equity Court, while conceding that a proceeding
under the recidivist statute was "criminal" and that, in that
proceeding, the accused was entitled to most of the protections
afforded defendants in criminal trials, concluded that petitioner
was not entitled to have counsel appointed to assist him, since the
proceeding was "only connected with the measure of punishment for
the last-committed crime." Cf. Fitzgerald v. Smyth,
Va. 681, 689-690, 74 S.E.2d 810, 816.
We put to one side Gryger v. Burke, 334 U.
, on which the Virginia court relied. In that
case, identity was the only issue, and the specialized
circumstances seemed to a majority not to require the appointment
of counsel. Under the present recidivist statute, the situation is
quite different. As we have seen, the "existence" of records of
prior convictions of the kind described in the statute is an issue
tendered in Virginia. We said of a like issue in Reynolds v.
Cochran, 365 U. S. 525
365 U. S.
". . . if petitioner had been allowed the assistance of his
counsel when he first asked for it, we cannot know that counsel
could not have found defects in the 1934 conviction that would have
precluded its admission in a multiple-offender
Page 368 U. S. 446
In that case we, also pointed out that the issue of "identity"
may at times present difficult local law issues, as, for
"whether the second-offender statute may be applied to
reimprison a person who has completely satisfied the sentence
imposed upon his second conviction and has been discharged from
p. 365 U. S.
In Reynolds v. Cochran, supra,
the accused had his own
lawyer, and only asked for a continuance. But the holding in the
case applies equally to an accused faced with an information under
Virginia's recidivist statute and who has no lawyer. It is "The
nature of the charge" (Tomkins v. Missouri, 323 U.
, 323 U. S. 488
that underlines the need for counsel. In trials of this kind, the
labyrinth of the law is, or may be, too intricate for the layman to
pp. 323 U. S.
-489; Williams v. Kaiser, 323 U.
, 323 U. S. 474
Virginia has held that the validity of any of the prior
convictions, used to bring the multiple-offender statute into play,
may be inquired into. See, e.g., Wesley v. Commonwealth,
190 Va. 268, 272-274, 56 S.E.2d 362, 364. These may involve
judgments of conviction in any state or federal court in the
Nation. Counsel, whom we appointed to represent petitioner here,
has shown the wide variety of problems that may be tendered. In
Virginia, a trial under this statute may present questions such as
whether the courts rendering the prior judgments had jurisdiction
over the offenses and over the defendant and whether these offenses
were punishable by a penitentiary sentence. Wesley v.
190 Va., at 273, 56 S.E.2d, at 364. In
Virginia, a sentence in excess of the one the court rendering it
had power to impose is "void for the excess only." See Royster
195 Va. 228, 235, 77 S.E.2d 855, 858-859. In
Virginia, a court, in considering whether the prior convictions
afforded a proper basis on which to invoke the recidivist statute,
has considered whether, in a prior trial,
Page 368 U. S. 447
the defendant was represented by counsel and whether it was a
fair and impartial trial. Willoughby v. Smyth,
267, 271, 72 S.E.2d 636, 639. In Virginia, a prior conviction that
is on appeal may not be the proper basis for a recidivist charge.
White v. Commonwealth,
79 Va. 611. And there appears to be
a question whether two prior convictions rendered the same day or
at the same term could both be used in a Virginia multiple-offender
prosecution. Commonwealth v. Welsh,
4 Va. 57. See Dye
135 W.Va. 90, 102-103, 62 S.E.2d
Double jeopardy and ex post facto
application of a law
are also questions which, as indicated in Reynolds v. Cochran,
p. 365 U. S. 529
may well be considered by an imaginative lawyer who looks
critically at the layer of prior convictions on which the
recidivist charge rests. We intimate no opinion on whether any of
the problems mentioned would arise on petitioner's trial, nor, if
so, whether any would have merit. We only conclude that a trial on
a charge of being a habitual criminal is such a serious one
(Chandler v. Fretag, 348 U. S. 3
issues presented under Virginia's statute so complex, and the
potential prejudice resulting from the absence of counsel so great,
that the rule we have followed concerning the appointment of
counsel in other types of criminal trials [Footnote 2
] is equally applicable here.
[For opinion of MR. JUSTICE HARLAN, concurring in the result,
Nos. 56 and 57, Oyler v. Boles
Crabtree v. Boles, post,
p. 368 U. S.
He apparently did not appeal from the conviction. Fitzgerald
194 Va. 681, 74 S.E.2d 810, however, allows the
deprivation of a constitutional right to be raised by habeas
Williams v. Kaiser, supra; Tomkins v. Missouri, supra;
Townsend v. Burke, 334 U. S. 736
Hudson v. North Carolina, 363 U.
; McNeal v. Culver, 365 U.