dissenting:
I emphatically dissent from the decision of the majority in this habeas corpus proceeding, which discharged the writ previously issued and remanded the prisoner to the custody of the warden of the Medium Security Prison. I dissent for the reason that the ruling of the majority is not only fundamentally unsound and utterly erroneous but is also contrary to the decision of the Supreme Court of the United States in Mempa v. Rhay, 389 U. S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336; the decision of the United States District Court for the Northern District of West Virginia in Hamrick v. Boles, 231 F. Supp. 507, and the recent decisions of this Court in State ex rel. Strickland v. Melton, 152 W. Va. 500, 165 S. E.2d 90; State ex rel. Render v. Wood, 152 W. Va. 484, 165 S. E.2d 102; and State ex rel. Phillips v. Wood, 152 W. Va. 568, 165 S. E.2d 105.
I challenge as completely incorrect and manifestly superficial and ill-considered the statement in the majority opinion that the question involved “is one of first impression in this Court and has not been passed upon by the Supreme Court of the United States.” On the contrary, the question of the right of a criminal defendant to the assistance of counsel at a hearing at which his probation is revoked was expressly considered and determined in the Mempa case and in the Strickland and Phillips cases. In each of those cases the right to the assistance of counsel in a proceeding in which the probation of a criminal defendant was revoked by the court in such proceeding was expressly upheld and the revocation of such probation when the probationer was not represented by counsel was held to be void. I submit that anyone who reads with any degree of discrimination *87or understanding the opinions ■ in 'the foregoing .cases must necessarily conclude that the question of the fight to the assistance' of counsel in a revocation proceeding was specifically considered and resolved. It is true that in .those cases the defendant had not been sentenced when -his probation was revoked but that fact is of. no importance and in none of those cases was the right of the probationer to the assistance of counsel conditioned or made to depend upon whether he had or had not been sentenced.
In the Mempa case the language of Justice Marshall was that “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected” and that “a lawyer must be afforded at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.” I insist that it can not be asserted with any degree of reason or common sense that substantial rights of a criminal defendant are not affected at a hearing to revoke the probation of a criminal defendant whether he has or has not been sentenced but who, in either instance, is free from confinement while his probation is in effect and whose freedom is involved, and that it can not be reasonably contended that the rights of a criminal defendant who has been placed on probation whether sentence has or has not been imposed are not involved or affected so as to entitle him to the assistance of counsel at a hearing at which his probation is revoked. The charge that he has violated his probation may be false and require the assistance of counsel to establish its falsity and to prevent the imposition of a sentence or the serving of a previously imposed sentence, and in either instance, to prevent imprisonment if his probation is not revoked before the expiration of the period of such probation.
The above quoted statements of Justice Marshall, which the majority in this proceeding say may be “ambiguous” were not so considered by the majority in the *88Strickland and Phillips cases in which all the judges of this Court concurred in the holding that the revocation of the probation of the defendants Strickland and Phillips at hearings in criminal proceedings at which they were not represented by counsel was void and the majority in those cases, except Judge Berry, concurred in the following statement in the opinion in the Strickland case, with reference to the consolidated cases of Mempa and Walkl-ing: “The reasoning of the court in the Mempa and Walkling cases indicates clearly that the criminal defendant is entitled to the assistance of counsel at any proceeding at which his probation is revoked.” The majority of this Court in the Phillips case, except Judge Berry, also concurred in the statement in the opinion in that case that “The reason therefor is that the relator did not have counsel at the revocation of probation hearing and there was no showing that he waived such right.”
As the writer of the majority opinion in the Strickland case, I felt and still feel that the majority of this Court in that case then entertained the view that a criminal defendant is entitled to the assistance of counsel at any hearing at which his probation is revoked whether he has or has not been sentenced at the time of such revocation. I prepared the opinion in that case in that belief. That such was the holding of the Court in the Strickland case is made clear in the opinion filed by Judge Berry, in which he dissented in part and concurred in part. In the dissenting portion of his opinion he said: “I dissent from the statement contained in the majority opinion that: ‘The reasoning of the court in the Mempa and Walkling cases indicates clearly that the criminal defendant is entitled to the assistance of counsel at any proceeding at which his probation is revoked.’ Apparently, the majority opinion rests the disposition of this case on this statement which will govern all future cases where the criminal defendant did not have the assistance of counsel at the time his probation was revoked regardless of whether sentence had been previously imposed and the criminal *89trial completed or where the imposition of sentence had been suspended until after the revocation of probation.” The same comment applies to Judge Berry’s opinion in the Phillips case which is based on the same ground. Judge Berry’s dissenting view as expressed above, and which shows that he considered the holding of the majority in the Strickland and Phillips cases to apply to any hearing at which the probation of a criminal defendant is revoked whether before or after imposition of sentence, was expressly rejected by the majority by a four to one vote in the Strickland case and in the Phillips case. Now the majority, consisting of two judges who concurred in the opinion in the Strickland and Phillips cases and Judge Berry who joins with them, completely changes its view and holding in the Strickland, Render and Phillips cases, adopts the previously rejected view stated in the above dissent, and asserts that the question is one of first impression and has not been decided by this Court or by the Supreme Court of the United States and that the case at bar “is clearly distinguishable from Mempa, Strickland, Render and Phillips and any statement contained in the opinion of any of the cases to the contrary is clearly obiter dictumIn that connection, it seems that some judges, when confronted with holdings with which they are not disposed to agree, summon to their aid the time-worn but utterly ambiguous and elusive Latin phrase known as “obiter dictum.” I can not concur in or sanction such an extraordinary change of view and I utterly disagree with and reject as palpably incorrect and erroneous all such assertions.
I am unable to observe any valid difference or distinction between the revocation of probation before or after imposition of sentence, for there is none; and any such purported distinction is utterly unwarranted. As all of us know the trial court may and it does grant probation, after conviction and after sentence has been imposed as well as before sentence is imposed. In either instance when probation is granted the probationer is released *90from confinement and he remains free- from such confinement as long as his probation exists and, if it-is not revoked before its expiration, he does not serve .the sentence previously imposed or any sentence that.might be but has not been imposed at the time probation was granted. In either instance, when probation is revoked, his freedom from confinement is taken from him and he serves the sentence previously imposed or he is committed to serve the sentence that will forthwith be imposed when his probation is revoked. As far as freedom from confinement is concerned, the result is the same and there is no reason for a difference or distinction between a revocation before or after sentence has been imposed. The same grounds for revoking probation are present in each instance, and to say that his substantial rights are not equally involved or affected does not make sense to me and, I should think, it does not make sense to any other reasonable person. That the substantial rights of the probationer are involved when his probation is revoked after sentence has been imposed was envisioned by the court in the Mempa case when, speaking by Justice Marshall, it used this language, which, almost strange to say, is quoted, but alas is ignored completely in the majority opinion: “appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” If the “substantial rights” of the petitioner in the case at bar were not affected by the revocation of his probation by the trial court in the main criminal proceeding and by his subsequent imprisonment to serve his sentence, I can think of no situation in which such rights of any criminal defendant can be affected. The mere existence óf a situation of that nature compels the positive assertion that the substantial rights of the probationer are affected and, if determined in the absence of counsel, are, indeed, violated. It is manifest that he then needs the assistance of counsel to prevent the possible improper revocation of his probation just as much as he needs such assistance when sentence is im*91posed or when sentence is suspended, whether he does or does not have a valid defense against the offense for which he has been or may 'be sentenced. It is crystal clear that at any revocation hearing in a criminal proceeding, as here, it is necessary, to satisfy the requirement of due process, that the probationer be represented by counsel. How can an imaginary distinction between revocation of probation before or after sentence is imposed, conjured up by the majority, possibly be justified or sustained? Clearly the answer is that it can not be.
Among the numerous fallacies in the majority opinion is the conclusion that inasmuch as the granting of probation is an act of grace, as admittedly and clearly it is, the revocation of probation is likewise an act of grace. Nothing could be more far fetched or illogical or further from the truth. It would be just as ridiculous to conclude that revocation of probation is an act of grace because the grant of probation is an act of grace as it would be to conclude that revocation of a full pardon is an act of grace because the grant of the pardon is an act of grace, or to conclude that revocation by the donor of a completed gift is an act of grace because the gift itself is such an act; for, of course, a pardon once granted can not be revoked and a valid completed gift can not be revoked by the donor without the consent of the donee.
That the revocation of probation is not an act of grace, and does not occur as a matter of right, but may be effected only because of violation of the conditions upon which probation was granted, whether sentence has been imposed, or has been suspended, is clear from the statutory requirement that the probationer shall be brought before the court or the judge which placed him on probation for a prompt and summary hearing to determine whether probation should be revoked for violation of any conditions of the probation. Section 10, Article 12, Chapter 62, Code, 1931, as amended.
Moreover, probation can not be revoked without a hearing provided by statute. Escoe v. Zerbst, 295 U. S. 490, *9255 S. Ct. 818, 79 L. Ed. 1566; Hamrick v. Boles, 231 F. Supp. 507. This is expressly conceded in the majority opinion. If a revocation of probation is an act of grace there would be no excuse or reason for the statutory requirement of a hearing for the purpose of revoking probation. In the Hamrick case, cited and discussed in the Strickland case and also cited in the majority opinion in the case at bar, the United States District Court said: “Ordinarily, it would be proper to order release, conditioned upon the State’s providing the petitioner with the hearing which was denied him. Since the probation revocation order and the commitment must be declared void ab initio, the petitioner has remained in the position of a probationer, and, his probationary period having expired, and since no final charge or probation violation was filed and no warrant was issued therefor during the probation period, he is entitled to his freedom from confinement, and even from supervision.” If the petitioner is entitled to a hearing provided by statute, which the majority concedes, the hearing, to be effective or of any benefit to the probationer, must conform to the requirement of due process and due process requires that at a hearing at which the probationer is deprived of his then freedom from imprisonment by the revocation of his probation, he must have the assistance of counsel. This conclusion necessarily follows and is crystal clear to me, and it is equally clear that a revocation hearing at which the probationer is without the assistance of counsel is of no benefit to him and that for the court in which he was convicted and sentenced to- conduct even a summary hearing at which the probationer is not represented by counsel is as much a violation of due process as it is to deny him a hearing or to overlook the absence of counsel, when an accused pleads guilty or is sentenced in any criminal proceeding. It will not do to excuse the assistance of counsel upon the pretext that the accused has no adequate defense. An accused generally has no defense when he enters a plea of guilty or when sentence is imposed at any stage of a criminal proceeding; but in *93each- of those situations- due process requires that the defendant he afforded the assistance of counsel. Also, it will not do to say that the revocation of probation of the probationer without the assistance of counsel should not be held to be null and void because the probationer, as here, has been convicted and sentenced, is clearly guilty of the offense with which he was charged, and is a vicious and habitual criminal who should be punished, as all or any of these factors can not excuse the. failure of the trial court to afford the petitioner the requirement of due process in the revocation of his probation.
I repeat: The Supreme Court of the United States in the Mempa case and this Court in the Strickland, Render and Phillips cases have held and recognized, as a requirement of due process, that a probationer be afforded the assistance of counsel at a proceeding at which his probation is revoked whether at the time of such revocation he has or has not been sentenced to confinement. This conclusion is also in complete accord and harmony with the many recent decisions in cases in which the Supreme Court of the United States has required the assistance of counsel for the accused at almost every conceivable stage of a criminal proceeding and has uniformly held that the absence of representation by counsel without the express waiver of that right by the accused is violative of due process and invalidates any judgment which adversely affects his substantial rights. The majority opinion cites no decision of the Supreme Court of the United States in which that court restricts or limits its holding in the Mempa case to revocation of probation at a hearing at which sentence is imposed for the first time and at which the defendant is not represented by counsel, and research by me has failed to find any such decision of that court. That fact lends strength to the contention that the majority in the case at bar should not have engaged in the creation of an unreal and fanciful distinction between a revocation hearing after sentence and such hearing before sentence is imposed. Instead the majority should- have followed the decisions in the Mempa case *94and the Strickland, Render and Phillips cases, in each of which the holding and the reasoning of this Court were clearly intended to apply to any hearing at which probation of a criminal defendant is revoked, whether, at the time, sentence had or had not been previously imposed.
For the reasons stated I would release the prisoner, bad actor though he is, from the sentence imposed upon each indictment, and discharge him forthwith from the custody of the defendant, not because of any condonation of his criminal conduct but because of the constitutional requirement that he be afforded due process of law which has not been satisfied in this case.
I am authorized to state that Judge Caplan concurs in the views expressed in this dissenting opinion.