Blackburn v. State
| Decision Date | 30 March 1982 |
| Docket Number | No. 14497,14497 |
| Citation | 290 S.E.2d 22,170 W.Va. 96 |
| Parties | Irvin BLACKBURN v. STATE of West Virginia. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. A court's refusal to docket an application for appeal from the judgment of an inferior court is not a final judgment having res judicata effect unless the appellate court's rejection of the application for appeal specifically addresses the issues raised by the applicant and finds that the lower court's judgment is plainly right.
2. Where a defendant enters a plea bargain arrangement whereby he agrees not to appeal a conviction on a previous charge to which he has never admitted guilt, but has been convicted by jury verdict, the defendant should not be deemed to have irrevocably waived his right to appeal. However, if the defendant chooses to disregard the agreement and file a timely appeal, the State should not be held to the bargain and, at its option, may seek resentencing on all other convictions involved in the agreement or reinstitute any charges dismissed pursuant to the plea bargain and proceed to trial thereon.
3. Where the accused is charged with being an accessory before the fact to the commission of a felony and the evidence tends to establish that the accused's solicitation of another to commit the principal offense is part of a pattern of criminal conduct devised by the accused and directed toward a particular individual or group of individuals, evidence that the accused procured in the same manner the commission of other crimes against such individual or group of individuals is relevant and admissible to show motive, intent and a common scheme or plan.
4. Warrantless electronic recording of a defendant's conversation with the consent of a participant to the conversation who, unknown to the defendant, is acting in concert with the police does not violate the prohibition against unreasonable searches and seizures contained in article 3, section 6 of our state constitution.
Ward & Cline, John L. Ward and Michael R. Cline, Charleston, Willard D. Lorensen, Morgantown, for plaintiff.
Chauncey H. Browning, Atty. Gen., Victor A. Barone, Deputy Atty. Gen. and Silas B. Taylor, Asst. Atty. Gen., Charleston, for defendant.
The appellant, Irvin Blackburn, appeals from an order entered July 21, 1978, by the Circuit Court of Boone County following a habeas corpus proceeding. The circuit court resentenced the appellant on the basis of criminal convictions obtained against him in May and October of 1975. The appellant challenges his conviction by jury verdict on the charge of accessory before the fact to the crime of arson on the grounds that the trial court erroneously allowed the introduction, over objection, of evidence of collateral crimes and of a tape recorded telephone conversation between the appellant and an informant for the State. The appellant also alleges defects in his conviction by guilty plea on the charges of accessory before the fact to the crime of malicious wounding. We find no error and we affirm the conviction.
The appellant was indicted by the Grand Jury of Boone County in January 1975 on three separate charges: Indictment No. 920 charged him with two counts of being an accessory before the fact to the crime of malicious wounding which occurred in Prince William County, Virginia; Indictment No. 921 charged him with one count of being an accessory before the fact to the crime of attempted murder which occurred in Prince William County, Virginia; Indictment No. 922 charged him with one count of being an accessory before the fact to the crime of first degree arson which was committed in Boone County. These charges arose out of a series of assaults committed upon one Camerson McCallister, a resident of Manassas, Virginia, and the burning of the home of Charles McCallister, father of Camerson McCallister and a resident of Boone County.
The appellant was tried on the arson charge on May 27-30, 1975. He was found guilty by a jury and was sentenced to a term of imprisonment in the state penitentiary of not less than 2 nor more than 20 years. On July 3, 1975, the appellant filed a motion to set aside the verdict and to grant a new trial on the grounds that (1) the trial court erred in admitting, over objection, evidence of collateral crimes, (2) the trial court erred in admitting, over objection, a tape recorded telephone conversation between the appellant and a police informant, (3) the trial court erred in denying the appellant's motion for a mistrial upon the admission of this evidence, and (4) the verdict was contrary to the law and the evidence. The circuit court denied this motion, and on July 25, 1975, the appellant filed an amended notice of intent to appeal the conviction upon the same grounds alleged in the motion to set aside the verdict. On September 18, 1975, the trial court entered an order granting a stay of execution for 60 days in order to permit the appellant to perfect his appeal.
On October 27, 1975, trial began on the charges of malicious wounding. Before the case was submitted to the jury, however, the appellant entered into a plea bargain agreement with the prosecution. Under the terms of the agreement, which was accepted by the trial court on October 29, 1975, the appellant agreed to plead guilty to the malicious wounding charges and to withdraw his pending appeal from his conviction of the arson charge. The prosecution in turn agreed to nolle the indictment charging the appellant with being an accessory before the fact to the crime of attempted murder. On November 5, 1975, the circuit court entered an order of conviction on the malicious wounding charges and sentenced the appellant to imprisonment for a term of not less than 2 nor more than 10 years.
On January 16, 1976, the appellant filed a petition for a writ of habeas corpus with this Court on several of the grounds raised in this appeal. The appellant requested discharge from all criminal liability on the malicious wounding charges and a new trial on the arson charge. On February 9, 1976, this Court issued a rule to show cause, returnable March 1, 1976, before the Circuit Court of Boone County. On March 5, 1976, after a full hearing, that court entered a memorandum opinion and order resolving all issues raised by the appellant in favor of the State and denying habeas corpus relief. The appellant requested a transcript of the proceedings for purposes of appeal and was resentenced on both convictions. On October 29, 1976, the appellant filed with this Court a petition for an appeal from the circuit court's order, alleging that the lower court erred in its findings and conclusions. On November 15, 1976, this Court refused the writ of error prayed for.
On October 12, 1977, the appellant filed with this Court a pro se application for a writ of habeas corpus on the ground that the circuit court had failed to provide him with a transcript of the proceedings of his convictions upon which to file for post-conviction relief. This Court refused to grant the petition on November 14, 1977. On November 30, 1977, the appellant filed a second pro se application for a writ of habeas corpus on the same ground. A rule to show cause, returnable January 5, 1978, before the Circuit Court of Boone County, was issued "on arson indictment and record only." By order entered January 27, 1978, the circuit court ordered a transcript of the proceedings printed and appointed counsel to represent the appellant for the purpose of appealing his conviction on the arson charge. On April 5, 1978, the transcript was transcribed and printed. On July 24, 1978, the circuit court issued an order directing the warden of the penitentiary to produce the appellant in court on July 19, 1978, for proceedings on the appellant's petition for habeas corpus relief. On July 21, 1978, the circuit court entered an order resentencing the appellant on both charges and denying his request for a stay of execution. On August 4, 1978, the appellant filed a notice of intent to appeal the court's judgment. After receiving from this Court an extension of time within which to prepare an appeal, the appellant filed a petition for a writ of error on April 12, 1979.
Initially we note that although this action is styled by the parties as an appeal from a denial of habeas corpus relief, it is more properly a direct appeal from the appellant's original conviction on the arson charge. The petition for habeas corpus which instigated these proceedings was grounded solely on the failure of the trial court to provide the appellant with a transcript of the criminal proceedings against him. There is no pleading, petition or other document in the record accompanying this appeal which raises the substantive claims put forth by the appellant here. Nor do we have before us a record of the habeas corpus proceedings conducted by the circuit court on July 19, 1978. All the record shows is that the appellant requested habeas corpus relief on the ground that he had not been provided with a transcript upon which to seek post-conviction relief, that the circuit court ordered a transcript to be made and that the appellant was subsequently denied habeas corpus relief and resentenced. In the absence of anything in the record to the contrary, we must assume that the appellant was resentenced in order to afford him an opportunity to prepare and file a direct appeal from his conviction. Consequently we will treat this action as a direct appeal of the original conviction rather than an appeal from a denial of collateral relief.
Secondly, the rule to show cause which this Court issued pursuant to the appellant's application for habeas corpus relief was specifically limited to the arson record and conviction only. No relief was granted with respect to the appellant's conviction on the malicious wounding charges. Consequently all issues raised by the appellant and by the State with respect to alleged...
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