dissenting:
Being of the opinion that one is entitled to the assistance of counsel at a hearing held to the effect the revocation of his probation, regardless of whether sentence was imposed prior to the grant of probation, I am unable to agree with the opinion of the Court. Therefore, I respectfully dissent.
While I agree that the granting of probation is a matter of grace, as noted in the opinion of the Court and in State ex rel. Strickland v. Melton, 152 W. Va. 500, 165 S. E.2d 90, the revocation thereof is a criminal proceeding where substantial rights of the defendant may be affected and must be accomplished in a constitutional manner. How can it be otherwise? When probation is to be revoked the defendant must be brought before the court where he must be afforded a prompt summary hearing. Code, 1931, 62-12-10, as amended. That statute provides that if it appears to the court, after hearing, that the defendant has violated any condition of his probation such probation may be revoked and he may be imprisoned.
The majority readily acknowledges that “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.” What could be the purpose of affording the defendant a hearing if it were not contemplated that he would be given an opportunity to defend against the charge that he had violated his probation? Such hearing would be a futile exercise in procedure and could serve no useful purpose. Can it be denied that at this hearing a substantial right of the defendant may be affected? If the judge finds that he violated his probation he may go to prison; otherwise he may continue on probation and *85remain physically free. It is not for us to say in what manner counsel could help this defendant. Suffice to say that “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal may be affected.” Mempa v. Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336.
In Hamrick v. Boles, 231 F. Supp. 507, it was held that in view of the hearing requirement in Code, 1931, 62-12-10, as amended, the denial of such hearing deprived the accused of the equal protection of state law, a right guaranteed to him by the Fourteenth Amendment to the Constitution of the United States. This, I believe, shows conclusively that such hearing is intended to be a meaningful proceeding at which the defendant may prove that he did not violate his probation or where he may be able to show extenuating circumstances which might mitigate the charges against him. Here, as in any other criminal proceeding, he is entitled to the assistance of counsel.
In Mempa Mr. Justice Marshall said, “a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.” The majority interprets 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.” I disagree with that interpretation. In my opinion, the above quoted statement of Justice Marshall, being in the disjunctive, clearly means that a lawyer must be afforded the defendant at a revocation of probation hearing, whether or not the defendant is to be then sentenced. As heretofore noted, can it be denied that his substantial rights may be affected? Is it not sufficient that such hearing may result in imprisonment for the defendant or his ultimate freedom? Is this not one of those circumstances in which a host of cases, state and federal, have held that the defendant is entitled to counsel?
*86Inasmuch as the petitioner was not afforded the assistance of counsel at his revocation of probation hearing, he was deprived of substantial constitutional rights. I would award the writ and discharge the prisoner. Judge Haymond concurs in the views expressed in this dissenting opinion.