CERTIORARI TO THE SUPREME COURT OF APPEALS OF WEST VIRGINIA.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart
MR. JUSTICE CLARK delivered the opinion of the Court.
The petitioners in these consolidated cases are serving life sentences imposed under West Virginia's habitual criminal statute. This Act provides for a mandatory life sentence upon the third conviction "of a crime punishable by confinement in a penitentiary."*fn1 The increased penalty is to be invoked by an information filed by the prosecuting attorney "immediately upon conviction and before sentence."*fn2 Alleging that this Act had been applied without advance notice and to only a minority of those subject to its provisions, in violation respectively of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the petitioners filed separate petitions for writs of habeas corpus in the Supreme Court of Appeals of West Virginia. Both of their petitions were denied without opinion. Unlike Chewning v. Cunningham, ante, p. 443, here each of the petitioners was represented by counsel at the time he was sentenced. Finding the cases representative of the many recidivist cases that have been docketed in this Court the past few Terms, we granted certiorari. 365 U.S. 810. We now affirm the judgment in each case.
William Oyler, the petitioner in No. 56, was convicted of murder in the second degree on February 5, 1953, which offense carried a penalty of from 5 to 18 years' imprisonment. Sentence was deferred, and on February 11 his motion for a new trial was overruled. On that same date
the Prosecuting Attorney requested and was granted leave to file an information in writing alleging that Oyler was the same person who had suffered three prior convictions in Pennsylvania which were punishable by confinement in a penitentiary. After being cautioned as to the effect of such information, Oyler, accompanied by his counsel, acknowledged in open court that he was the person named in the information. The court then determined that the defendant had thrice been convicted of crimes punishable by confinement in a penitentiary and sentenced him to life imprisonment. In so doing the court indicated that the life sentence was mandatory under the statute and recommended that Oyler be paroled as soon as he was eligible. In 1960 Oyler filed a habeas corpus application in the Supreme Court of Appeals alleging a denial of due process under the Fourteenth Amendment in that he had not been given advance notice of his prosecution as a recidivist which prevented him from showing the inapplicability of the habitual criminal law. The statute was alleged to be inapplicable because he had never been sentenced to imprisonment in a penitentiary although he had been convicted of crimes subjecting him to the possibility of such sentence.*fn3 He also attacked his sentence on the equal protection ground previously set forth.
In 1957 Paul Crabtree, the petitioner in No. 57, pleaded guilty to forging a $35 check, which offense carried a penalty of from 2 to 10 years' imprisonment. Sentence was deferred, and a week later the Prosecuting Attorney informed the court that Crabtree had suffered two previous felony convictions, one in the State of Washington and one in West Virginia. The trial judge, after cautioning Crabtree of the effect of the information and
his rights under it, inquired if he was in fact the accused person. Crabtree, who had been represented by counsel throughout, admitted in open court that he was such person. Upon this admission and the accused's further statement that he had nothing more to say, the court proceeded to sentence him to life imprisonment. In 1960 Crabtree sought habeas corpus relief in the Supreme Court of Appeals claiming denial of due process because of the absence of notice which prevented him from showing he had never been convicted in Walla Walla County, Washington, as had been alleged in the information.*fn4 Like Oyler, he also raised the equal protection ground.
Petitioners recognize that the constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge;*fn5 however, they contend that in West Virginia such penalties are being invoked in an unconstitutional manner. It is petitioners' position that procedural due process under the Fourteenth Amendment requires notice of the habitual criminal accusation before the trial on the third
offense or at least in time to afford a reasonable opportunity to meet the recidivist charge.
Even though an habitual criminal charge does not state a separate offense, the determination of whether one is an habitual criminal is "essentially independent" of the determination of guilt on the underlying substantive offense. Chandler v. Fretag, 348 U.S. 3, 8 (1954). Thus, although the habitual criminal issue may be combined with the trial of the felony charge, "it is a distinct issue, and it may appropriately be the subject of separate determination." Graham v. West Virginia, 224 U.S. 616, 625 (1912). If West Virginia chooses to handle the matter as two separate proceedings, due process does not require advance notice that the trial on the substantive offense will be followed by an habitual criminal proceeding.*fn6 See Graham v. West Virginia, supra.
Nevertheless, a defendant must receive reasonable notice and an opportunity to be heard relative to the recidivist charge even if due process does not require that notice be given prior to the trial on the substantive offense. Such requirements are implicit within our decisions in Chewning v. Cunningham, supra; Reynolds v. Cochran, 365 U.S. 525 (1961); Chandler v. Fretag, supra. Although these cases were specifically concerned with the right to assistance of counsel, it would have been an idle accomplishment to say that due process requires counsel but not the right to reasonable notice and opportunity to be heard.
As interpreted by its highest court, West Virginia's recidivist statute does not require the State to notify the
defendant prior to trial on the substantive offense that information of his prior convictions will be presented in the event he is found guilty.*fn7 Thus notice of the State's invocation of the statute is first brought home to the accused when, after conviction on the substantive offense but before sentencing, the information is read to him in open court as was done here. At this point petitioners were required to plead to the information. The statute expressly provides for a jury trial on the issue of identity if the accused either denies he is the person named in the information or just remains silent.*fn8
But the petitioners, who were represented by counsel, neither denied they were the persons named nor remained silent. Nor did they object or seek a continuance on the ground that they had not received adequate notice and needed more time to determine how to respond with respect to the issue of their identity. Rather, both petitioners rendered further inquiry along this line unnecessary by their acknowledgments in open court that they were the same persons who had previously been convicted. In such circumstances the petitioners are in no position now to assert that they were not given a fair opportunity to respond to the allegations as to their identity.
They assert, however, that they would have raised other defenses if they had been given adequate notice of the recidivist charges. It is, of course, true that identity is not the only issue presented in a recidivist proceeding, for, as pointed out by Mr. Justice Hughes (later Chief Justice) when this Court first reviewed West Virginia's habitual criminal law, this statute contemplates valid convictions which ...