No. 28399 State of West Virginia ex rel. Donald R.
Farmer, Jr. v. George Trent, Warden
Albright, J., concurring in part and dissenting in part:
I concur in the judgment of the majority that the
denial below of the Appellant's application for a writ of habeas corpus should
be affirmed, but not for all the reasons assigned by the opinion of the Court.
The refusal of the Appellant to testify or allow his counsel to testify to the
underlying circumstances deprived the trial court of any factual basis upon
which to act. Moreover, the totality of the circumstances, as revealed by the
resulting truncated record and the considerable delay between the time the contested
guilty plea was entered and the petition for this writ was filed, persuades
me that the majority is correct in affirming the judgment of the lower court
on this application.
I respectfully dissent from the conclusion that this
Court should alter its position, enunciated forcefully in Rule 11, W. Va. R.
Crim. P., that the trial court must independently ascertain that a plea of guilty
is both voluntarily and knowingly made simply because the Supreme Court of the
United States has now lowered its expectations in that regard. I respectfully
suggest that the Constitution of this State mandates faithful adherence of Rule
11, even if the supreme law of the land no longer does.
For like reason, I also dissent from Syllabus Point 2
of the majority's opinion. I believe it invites disregard for the spirit and letter
of Rule 11 and the principles of fairness and justice which underlie both Rule
11 and the substantive provisions of our West Virginia Bill of Rights, the provisions
of which mirror the protections intended to be preserved by the hallowed Bill
of Rights attached to the Constitution of the United States as a condition of
I am authorized to state that Justice Starcher joins in this concurring and dissenting opinion.