Carter v. Bordenkircher

Decision Date20 July 1976
Docket NumberNo. 13642,13642
Citation159 W.Va. 717,226 S.E.2d 711
PartiesRobert C. CARTER v. Donald BORDENKIRCHER, Warden, West Virginia Penitentiary.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. 'In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case will be regarded as harmless error.' Syllabus point 19, State v. Thomas, W.Va., 203 S.E.2d 445 (1974).

2. In determining appropriate relief in habeas corpus for ineffective assistance of counsel in not prosecuting a timely appeal, the court should consider whether there is a probability of actual injury as a result of such denial, or alternatively whether the injury is entirely speculative or theoretical, and where the denial of a timely appeal was probably harmless, except in the case of extraordinary dereliction on the part of the State the appropriate remedy is not discharge but such remedial steps as will permit the effective prosecution of an appeal.

3. In all future cases, whenever counsel is appointed in the trial court for an indigent under W.Va.Code, § 62--3--1 (1975) counsel should be informed that he will also be responsible by separate appointment for the appeal if one should be required, and immediately upon the conviction of the defendant and the disposition of post-trial motions, the same counsel should be reappointed to prosecute the appeal unless the trial court for good cause determines that other counsel should be appointed.

Marshall & St. Clair, E. G. Marshall, Huntington, for Carter.

Chauncey H. Browning, Jr., Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for Bordenkircher.

NEELY, Justice:

This appeal from a partial denial of habeas corpus relief in the Circuit Court of Cabell County presents two questions with regard to effective assistance of counsel, the first arising at the trial stage and the second arising upon appeal. While on the facts presented we find no ineffective assistance at the trial stage, we do find ineffective assistance at the appellate stage. Although we find a technical denial of constitutional rights in that petitioner did not receive a timely appeal, the effect of such denial is so speculative as to entitle the petitioner to no greater relief than resentencing, and therefore the judgment of the circuit court is affirmed.

A

In January 1973 petitioner, Robert C. Carter, was indicted for armed robbery in the Common Pleas Court of Cabell County, and because Mr. Carter was indigent, Mr. Hiram G. Williamson, a member of the Cabell County Bar, was appointed to represent the petitioner. The record demonstrates that Mr. Williamson was an experienced criminal lawyer who had conducted more than two hundred criminal trials during his distinguished career. On March 28, 1973, before petitioner was asked to plead to the indictment, Mr. Williamson made a verbal motion to the Common Pleas Court of Cabell County that he be permitted to withdraw from the case. As part of his motion, Mr. Williamson said:

'I believe that in the defense of this case, in presenting certain witnesses in his (Robert C. Carter's) behalf, I would be a party to the subornation of perjury, and I refuse to be under that cloud.'

Mr. Williamson argued to the court as follows:

'I believe from my experience that I can evaluate a criminal case, having tried more than two hundred, maybe three hundred, of them, and in this particular case I have advised this defendant for his own best interests the direction in which he should go. He flatly refuses to accept my advise (sic), and I feel from my evaluation of this case, there is an insurmountable obstacle to acquittal. I believe also that there could be under this indictment, from the evidence as I have reviewed it, prospective testimony, that there could be only one verdict, and that would be guilty as charged under the indictment. There could be no lesser finding.

'And I believe further from my talks with this defendant and my attitude of which he is well aware that he has lost confidence in me, and I believe from his attitude he feels that probably I could not represent him. However, I am not making my motion upon that ground. I feel that I cannot conscientiously, in view of my knowledge of this case, try this case for this defendant.'

The Common Pleas Court of Cabell County denied Mr. Williamson's motion to withdraw and Mr. Williamson then conducted the defense of the petitioner in a skillful and articulate manner. This Court has reviewed the entire transcript of the trial and finds that Mr. Williamson's advice to his client was well justified. The petitioner is a young, male Caucasian who allegedly participated in the robbery of a McDonald's hamburger stand in Huntington West Virginia. No fewer than five eyewitnesses, one of whom was allegedly a co-conspirator in the robbery, identified Mr. Carter. The eyewitnesses were of the same race as the defendant, had ample opportunity to observe the defendant who was unmasked and undisguised at the time of the crime, and the witnesses had no apparent reason to be untruthful. The defendant steadfastly maintained that he was not present at the scene of the robbery and, in support of that contention introduced testimony of his uncle, who confessed to being among the robbers himself, but testified that his nephew, the petitioner, was not present and did not participate.

This Court concludes that if there were ever a case in the criminal law which justified an attorney in advising his client to enter into a plea bargain, this was assuredly the case. From our reading of the record there were apparently no pretrial errors with regard to illegal search and seizure, illegal line-up procedure, or other traditional defects which would ultimately result in the suppression of evidence and release of the petitioner. In discharging his duties as appointed counsel, Mr. Williamson faithfully acquitted himself by encouraging the petitioner to make a plea bargain, as it was not unreasonable for Mr. Williamson to infer that the defendant's placing of arguably perjured testimony on the stand would ultimately result in a harsher sentence under West Virginia's armed robbery statute, W.Va.Code, § 61--2--12 (1961), which vests broad discretion in the trial judge to impose a determinate sentence in the penitentiary of ten years to life.

There may have been other ways of handling this particular case; the Court does not find that Mr. Williamson's method of proceeding was the only possible method, but we do find that Mr. Williamson demonstrated more than 'the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law' as mandated in State v. Thomas, W.Va., 203 S.E.2d 445 (1974).

Petitioner asserts that his disagreement with counsel with regard to the manner of conducting petitioner's defense undermined the attorney-client relationship and prejudiced the petitioner in the trial of his case. While in a world of limitless resources and under-employed legal talent a more perfect result would have been achieved by granting Mr. Williamson's motion to withdraw from the case, this Court finds that under the West Virginia law with regard to appointment of counsel for indigents the common pleas court did not abuse its discretion in requiring Mr. Williamson to try the case. Furthermore, from a review of the entire record we find as a matter of fact that any possible error in this regard was harmless beyond a reasonable doubt.

The petitioner alleges he had at one time worked for the McDonald's hamburger stand which was robbed, although the assistant manager testified that he had never seen the petitioner before. The petitioner argues in support of his allegations of ineffective assistance of counsel that Mr. Williamson should have subpoenaed petitioner's work records from McDonald's in order to undermine the credibility of the manager's testimony by demonstrating that petitioner had worked at the hamburger stand.

At the habeas corpus hearing it was demonstrated that the petitioner did, in fact, work for approximately three months at the McDonald stand which was robbed; however, the Court finds that Mr. Williamson's failure to anticipate every possible avenue of impeachment of the prosecution's witnesses on cross-examination did not amount to ineffective assistance of counsel. By virtue of the overwhelming weight of other evidence this Court cannot conclude that there would have been a different result had Mr. Williamson anticipated the testimony in question.

The petitioner alleges that the prosecuting attorney made a specific point in his concluding argument that Robert Carter's testimony was absurd because of the allegation that he had worked at McDonald's. The prosecuting attorney said to the jury:

'One other thing, and this to me is the most preposterous thing in the entire defense.

If Donald (sic) Carter worked at McDonald's, why in the world didn't he prove it? He was a witness. Why didn't he prove it? I don't know why, and even the more preposterous part of it is: what in the world would have been the reason that his former boss would have sat there and said, 'I never saw the guy in my life?' What's in it for Murphy to say this? It's a bold face lie. Murphy's still employed in a responsible position with the Ashland Fire Department. He's an honest man. He obviously had to pass some kind of examination for responsibility in his former life and, you know, personal honesty, in order to hold a position like that. Why would he have sat there and said, 'I...

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  • State v. Davis
    • United States
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    ...S.E.2d 327 (1977); Syl. pt. 1, State ex rel. Wine v. Bordenkircher, 160 W.Va. 27, 230 S.E.2d 747 (1976); Syl. pt. 1, Carter v. Bordenkircher, 159 W.Va. 717, 226 S.E.2d 711 (1976). ...
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