344 So.2d 818 (Ala.Crim.App. 1977), 6 Div. 372, Mayola v. State

Docket Nº:6 Div. 372.
Citation:344 So.2d 818
Opinion Judge:BOWEN, Judge.
Party Name:Michael Anthony MAYOLA v. STATE.
Attorney:Howard A. Mandell for Mandell & Boyd, Montgomery, for appellant. William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.
Case Date:March 08, 1977
Court:Alabama Court of Criminal Appeals
 
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Page 818

344 So.2d 818 (Ala.Crim.App. 1977)

Michael Anthony MAYOLA

v.

STATE.

6 Div. 372.

Court of Criminal Appeals of Alabama.

March 8, 1977

Rehearing Denied March 29, 1977.

Page 819

Howard A. Mandell for Mandell & Boyd, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State.

BOWEN, Judge.

In November of 1962, Michael Anthony Mayola, the appellant, was convicted of the first-degree murder of an eleven year old child. He was sentence to life imprisonment. No appeal was taken from that conviction for which the maximum penalty was death.

On April 3, 1973, the appellant filed a pro se petition for writ of error coram nobis, which he subsequently amended, and which, as amended, was heard and denied. This denial was appealed and this court in Mayola v. State, 57 Ala.App. 137, 326 So.2d 665 (1976) affirmed the ruling of the lower court.

Mayola subsequently filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Alabama. On April 2, 1976, this petition was denied because the appellant had failed to exhaust his state remedies regarding his claims of (a) the introduction of inadmissible evidence, (b) improper jury selection, and (c) prejudicial pretrial publicity.

On April 12, 1976, the appellant filed a second petition for writ of error coram nobis with the Circuit Court of Blount County. In this second petition, the appellant allegedly and admittedly sought to present those issues to which the state remedy had not been exhausted under the federal court order. After a full hearing on the merits of that petition, it was denied. This appeal is taken from the lower court's order denying the appellant's second petition for a writ of coram nobis. As an indigent, the appellant was afforded counsel on the hearing of each coram nobis petition, a free transcript in each case and counsel on each appeal.

Four issues are presented for review. The appellant urges that the following failures of the lower court were error: The failure of the lower court (1) to furnish the appellant with a copy of his trial transcript,

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(2) to grant the appellant's request for a change of venue based on pretrial publicity, (3) to grant his petition for writ of error coram nobis because illegally obtained evidence was admitted at trial, and (4) because the appellant alleges he was not represented by counsel at his arraignment.

The facts of the crime surrounding the kidnapping and murder of the deceased youth are repulsive and shocking. However, they are not material for purposes of this appeal. Therefore, the relevant facts and testimony will be discussed as material to each issue.

I

The appellant asserts that the lower court erred in denying his request for a copy of his original trial transcript without a showing that (1) the transcript was no longer available and (2) that the state was in no way responsible for its unavailability.

From the testimony given in this second coram nobis hearing it affirmatively appears that, contrary to the appellant's assertions, he was informed by his trial attorneys of his right to appeal and that he knowingly and intelligently waived this right. The appellant has given no credible reason for his delay in raising any issue surrounding his convicton and in appealing his case.

Under Alabama law (Act 525, approved September 16, 1963, Acts of 1963, page 1129; see Code 1940, Recompiled 1958, Title 15, § 380(14) et seq.) a court cannot order a free transcript until an appeal has been taken. There is no provision under the law of this state for furnishing a transcript of the evidence of a conviction, which has never been appealed, on a...

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