Bolick v. State, 47563

• Decision Date: 19 October 1972
• Docket Number: No. 47563,No. 3,47563,3
• Citation: 127 Ga.App. 542,194 S.E.2d 302
• Parties: Wiley BOLICK v. The STATE
• Court: Georgia Court of Appeals

Page 302

194 S.E.2d 302

127 Ga.App. 542

Wiley BOLICK v. The STATE.

No. 47563.

Court of Appeals of Georgia, Division No. 3.

Oct. 19, 1972.

Rehearing Denied Nov. 15, 1972.

Wiley Bolick, pro se., and Carl P. Savage, Jr., Montezuma, for appellant.

Claude N. Morriss, Dist. Atty., Americus, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

'Jailhouse lawyer' may be a pejorative term applied by some with derision but not by judges who know these penitentiary paracletes present frequently imaginative and innovative ideas. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, was the result of a prisoner's product. Incarceration may provide the needed hours of idleness for contemplation which would be confirmation of the views expressed by famed New York City Attorney Morris Ernst who wrote in 58 Am. Bar Assn. Journal 165 (Feb. 1972) that 'It is now apparent from vast studies that man's mind leaps higher and better when relaxed. I am persuaded that man if least inventive when he is waiting for a mess of telephone calls or watching a clock. Most of us get our good ideas falling asleep, waking up, lolling in a hot bath, driving a car along a known route or sitting on a toilet.'

Such prefatory views arise from the ingenious legalisms expounded in the enumerations of error and written brief prepared here by a fellow inmate of the accused. This followed the declination of his court appointed attorney to pursue an appeal after defendant had been convicted and given the statutory minimum sentence of one year for the crime of escaping from the Macon County Public Works Camp where he was serving a sentence imposed from another jurisdiction for burglary. His defense was his sworn testimony of lack of wilfulness in that he did not intend to escape but walked through an unlocked kitchen door with the purpose of going to the residence of a friendly guard to ask his intervention to arrange a removal from a large dormitory occupied by 30 convicts to a smaller section having 10 prisoners or to another place of detention. ¹ His excuse for his behavior was fear of other prisoners arising from their threats. In rebuttal to such alleged lack of criminal intent the State proved that when apprehended 1 1/2 miles away some 3 to 4 hours after departure from durance vile he was wearing the warden's pants and shirt, without removal of the name tag, coupled with testimony from a fellow prisoner concerning defendant's discussions with him about escape plans.

Appellant's advocate urges four grounds of error, three being (a) insufficient time to appointed counsel for trial preparation (b) not furnishing adequate and effective counsel for the trial and (c) failure to provide 'counsel for this appeal and other necessary legal aids needed by the indigent and pauperis prisoner to guarantee his constitutional rights.'

The remaining enumeration of error deserves to be quoted in full: 'The State in this above case placed the responsibility for security squarely on this indigent inmate, where security is the sole responsibility of a State and the agents thereof, and by doing so has created and caused civil damages, irreparable damages, on this indigent prisoner by their negligence and/or malfeasance in maintaining security at the level that would be required by law, as it is clearly recorded that there was no force and no arms and/or weapons, and no damage to any state or private property, and the records show that no crime was committed not even a misdemeanor, other than the escape charge, by this indigent; the court erred by not considering the above stated and dismissing the charge of escape, where there was no escape, just a home sick indigent desiring and wandering into freedom which is so precious a heritage of all Americans, to seek without force what we all desire, cherish and demand, certainly cannot be a crime to pursue the guarantees that the Constitution was based on as a whole freedom for all men. It is sincerely believed that to dangle this morsel of freedom before the indigent and not expect him to have the American desire is squarely a violation of the 8th Amendment of the Constitution of the United States, cruel and unusual punishment, inflicted in a torturous way, by punishing for having an American desire for freedom and seeking in a peaceful way what is guaranteed to all in this beloved free land of the United States of America.

1. Appointed trial counsel himself raised the question of insufficient time for preparation, which he based upon this being his fifth court-appointed assignment during the term. In support of his motion the attorney argued this lack of time prevented him from interviewing the fellow prisoner subpoenaed by him at his client's direction whom he did not use after learning he was adverse but who was put on the stand by the State for rebuttal. Since he had brought this adverse witness into court at the direction of his client, it is clear the accused brought about his own undoing and not lack of time for preparation. Furthermore, as the trkal judge noted, the designation of counsel had been made six days in advance and the simplicity of the case did not warrant a postponement. This being a matter of discretion which was manifestly not abused, this contention is without merit. 'Mere shortness of time, however, does not ipso facto show a denial of the rights of an accused. Something more is required.' Carnes v. State, 115 Ga.App. 387, 388, 154 S.E.2d 781, 784, cert. denied, 389 U.S. 928, 88 S.Ct. 287, 19 L.Ed.2d 279. See also Smith v. State, 126 Ga.App. 547, 191 S.E.2d 304 and citations therein.

2. The complaint of court-appointed counsel being inadequate and ineffective is contradicted completely by the transcript of the trial. It shows defense counsel skillfully presenting every available objection with the trial judge scrupulously protecting the rights of the accused. In fact, the district attorney's handling was clearly aimed to make a fair and unbiased trial certain for the accused. It should be noted that appointed counsel was from the county in which the trial was held and the jury's verdict of the minimum sentence plus a recommendation for misdemeanor constituted a vindication of the attorney's efforts in behalf of his client. 'Where counsel, representing a defendant in a criminal case, is a member of the bar in good standing, and, in representing his client in the trial of his case, gives his complete loyalty to his client, serves him in good faith to the best of his ability, and his service is of such a character as to preserve the essential integrity of the proceedings in a court of justice, the requirements of due process within the Fourteenth Amendment of the Federal Constitution and Art. 1, Sec. 1, par. 3 of the Constitution of Georgia are met.' Hill v. Balkcom, 213 Ga. 58(1), 96 S.E.2d 589. See also Hart v. State, 227 Ga. 171, 176, 179 S.E.2d 346 and Heard v. State, 126 Ga.App. 62, 189 S.E.2d 895.

3. This court does not consider the constitutional requirements to require an appeal in every criminal case. 'A sentence is not necessarily void where counsel for one convicted of crime declines to appeal his case though requested by his client to do so.' Balkcom, Warden v. Roberts, 221 Ga. 339(1), 144 S.E.2d 524. As was said by our Supreme Court in that case at page 343, 144 S.E.2d at page 526 '(W)e are unwilling to substitute our judgment for that of his counsel who heard the evidence against him and observed the conduct of his trial.' Moreover, it should be noted defendant received the minimum of one year rather than a greater sentence permissible by statute up to five years. Code Ann. § 26-2501. If there were a second trial a harsher sentence might well be the result and has been ruled permissible as not constituting double jeopardy. Salisbury v. Grimes, 223 Ga. 776, 158 S.E.2d 412; Salisbury v. Grimes, 5 Cir., 406 F.2d 50; Rozier v. State, 126 Ga.App. 336, 190 S.E.2d 627. See also North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

4. Although we consider innovative the contention that accused was subjected to cruel and inhumane punishment in violation of the Eighth Amendment by imprisonment resulting from his having been unable to withstand the temptation of the unlocked kitchen door and because no force was used in his...