Call v. McKenzie

• Decision Date: 16 December 1975
• Docket Number: No. 13646,13646
• Citation: 159 W.Va. 191,220 S.E.2d 665
• Court: West Virginia Supreme Court
• Parties: Thomas David CALL v. Arthur L. McKENZIE, acting warden, West Virginia Penitentiary.

Page 665

220 S.E.2d 665

159 W.Va. 191

Thomas David CALL v. Arthur L. McKENZIE, acting warden, West Virginia Penitentiary.

No. 13646.

Supreme Court of Appeals of West Virginia.

Dec. 16, 1975.

Syllabus by the Court

1. Upon request, an indigent defendant in a criminal case who enters a guilty plea is entitled to a transcript of all proceedings against him, including the indictment, pre-trial motions, pre-trial hearings, and any other matter of record.

2. A criminal defendant can knowingly and intelligently waive his constitutional rights, and when such knowing and intelligent waiver is conclusively demonstrated on the record, the matter is Res judicata in subsequent actions in Habeas corpus.

3. When a criminal defendant proposes to enter a plea of guilty, the trial judge should interrogate such defendant on the record with regard to his intelligent understanding of the following rights, some of which he will waive by pleading guilty; 1) the right to retain counsel of his choice, and if indigent, the right to court appointed counsel; 2) the right to consult with counsel and have counsel prepare the defense; 3) the right to a public trial by an impartial jury of twelve persons; 4) the right to have the State prove its case beyond a reasonable doubt and the right of the defendant to stand mute during the proceedings; 5) the right to confront and cross-examine his accusers; 6) the right to present witnesses in his own defense and to testify himself in his own defense; 7) the right to appeal the conviction for any errors of law; 8) the right to move to suppress illegally obtained evidence and illegally obtained confessions; and, 9) the right to challenge in the trial court and on appeal all pre-trial proceedings.

4. Where there is a plea bargain by which the defendant pleads guilty in consideration for some benefit conferred by the State, the trial court should spread the terms of the bargain upon the record and interrogate the defendant concerning whether he understands the rights he is waiving by pleading guilty and whether there is any pressure upon him to plead guilty other than the consideration admitted on the record.

5. A trial court should spread upon the record the defendant's education, whether he consulted with friends or relatives about his plea, any history of mental illness or drug use, the extent he consulted with counsel, and all other relevant matters which will demonstrate to an appellate court or a trial court proceeding in Habeas corpus that the defendant's plea was knowingly and intelligently made with due regard to the intelligent waiver of known rights.

Campbell, Love, Woodroe, Gilbert & Kizer, Thomas J. McQuain, Jr., Charleston, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for respondent.

NEELY, Justice:

This writ of Habeas corpus ad subjiciendum was issued to review the question of whether an indigent criminal defendant convicted upon a plea of guilty is entitled on appeal or in a Habeas corpus proceeding to a free transcript of all relevant material of record in his case. The case of State ex rel. Wright v. Boles, 149 W.Va. 371, 141 S.E.2d 76 (1965) is overruled and we hold today that henceforth an indigent criminal defendant shall always be entitled, upon request, to a free transcript of the entire record of his case. Our holding today is prospective only, except with regard to this petitioner.

On September 15, 1975, the petitioner, an indigent, filed a motion by counsel in the Circuit Court of Marshall County for a free transcript of the proceedings in his case which included a request for a '. . . trial transcript and all proceedings therein, indictments, motions, statements, and commitment records.' By order the circuit court denied this motion on the grounds that the petitioner had not alleged a purpose or need in his request. On October 14, 1975, the petitioner applied for and was granted a writ of Habeas corpus in this Court on the grounds that the denial of a free transcript to him is unconstitutional.

In the case of Wright v. Boles, supra, this Court held that an indigent defendant is entitled to a transcript when he is convicted after a plea of not guilty, but not so entitled where the conviction is based upon a plea of guilty and the defendant was represented by counsel, unless there is evidence of deprivations of constitutional rights. The petitioner in the case at bar alleges that he believes there were constitutional infirmities in his plea of guilty, and that he needs a transcript to review the record in order to find those infirmities and to prepare his case on Habeas corpus.

I

An indigent defendant is entitled to the same rights as a defendant with the means to purchase a stenographic transcript. It is a denial of equal protection of the laws to provide a defendant of sufficient means the opportunity to purchase a transcript of his case for the purpose of discovering constitutional infirmities, which may exist, while at the same time effectively denying that opportunity to an indigent defendant. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955). The case of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) holds that a criminal defendant is entitled to certain constitutional safeguards in entering a plea of guilty, including an affirmative showing that the plea was intelligent and voluntary. These safeguards are meaningless, however, without a remedy when such rights have been unconstitutionally denied. A remedy is most easily provided when a reviewing court can determine from the record whether the defendant was informed of those rights and voluntarily waived them.

II

We have long been concerned with the increasing number of collateral attacks upon valid guilty pleas through Habeas corpus proceedings. While a defendant is entitled to due process of law, he is not entitled to appeal upon appeal, attack upon attack, and Habeas corpus upon Habeas corpus. There must be some end to litigation, and the proper way to effect this salutary result is to do everything right the first time. ¹

There are a number of questions which a circuit court should routinely ask a defendant who enters a plea of guilty to determine the voluntariness of his plea. In general, however, circuit courts do not engage in sufficient dialogue with the defendant to enable either an appellate court, or a federal or state trial court proceeding in Habeas corpus, to determine whether the defendant knowingly and intelligently pleaded guilty with a full understanding of the rights he waived as a result of his plea. Any summary proceeding, particularly one accomplished on the written guilty plea form authorized by W.Va.Code, 62--3--1a (1965), invites later collateral attack, and unfortunately the attack may still be raised after the Quid pro quo of permitting a plea to a lesser offense, offering a lighter sentence, or forebearing to prosecute under the habitual offender statute, has already been granted by the State and cannot be withdrawn. ² There is no deterrent to frivolous allegations of violations of constitutional rights after the defendant has received the full benefit of a plea bargain. At that point a defendant's negotiating position is similar to the one described by President Kennedy as portraying the attitude of the Russians: 'What's mine is mine and what's yours is negotiable!' Accordingly it is far better policy for the trial judge to engage in substantial dialogue on the record with the defendant to bring out any circumstances which might lead to constitutional infirmities at the time of taking the plea.

Where there is a transcript of the colloquy which occurred between the court and the accused before the acceptance of the plea of guilty, and where that transcript conclusively demonstrates that there was a knowing and intelligent waiver of those rights necessarily surrendered as a result of a guilty plea, the issue is Res judicata in a subsequent action in Habeas corpus and the petition for Habeas corpus may be summarily dismissed without an evidentiary hearing.

A defendant may knowingly and intelligently waive constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965); State v. Blosser, W.Va., 207 S.E.2d 186 (1974); and State ex rel. Grob v. Blair, W.Va., 214 S.E.2d 330 (1975). Once having done so he cannot be heard to complain thereafter. Brady trilogy: Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and See Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). ³ The most common issues in Habeas corpus cases are whether there were, indeed, knowing and intelligent waivers, whether there were facts outside the record which improperly caused the defendant to enter his plea, and whether defendant's counsel was indeed competent. These major issues can all be finally resolved in the careful taking of the original plea.

A trial court should determine whether the defendant is the same person as the individual charged in the indictment, that the defendant has received a copy of the indictment returned against him, and that the defendant understands the nature and meaning of the criminal charges made against him in that indictment. In this regard it is not sufficient for the trial court to explain to the individual his rights in legal terminology alone, but rather the court should translate formal charges which include words of art such as 'caption,' 'asportation,' 'felonious,' 'malice,' etc., into language which a layman defendant can understand. In addition, it is preferable that questions calling for 'yes' or 'no' answers be avoided. The court should interrogate the...