Mayle v. Ferguson

• Decision Date: 01 March 1985
• Docket Number: No. 16489,16489
• Citation: 174 W.Va. 430,327 S.E.2d 409
• Court: West Virginia Supreme Court
• Parties: Wilbert MAYLE v. Honorable Alfred FERGUSON, Judge of the Circuit Court of Cabell County, and Jeanie Hall, Court Reporter, Circuit Court of Cabell County.

Page 409

327 S.E.2d 409

174 W.Va. 430

Wilbert MAYLE v. Honorable Alfred FERGUSON, Judge of the Circuit Court of Cabell County, and Jeanie Hall, Court Reporter Circuit Court of Cabell County.

No. 16489.

Supreme Court of Appeals of West Virginia March 1, 1985.

Syllabus by the Court

1. "An indigent criminal defendant has a right to appeal his conviction. He is also constitutionally entitled to a copy of the trial court record, including the transcription of the testimony, without cost to him. West Virginia Constitution, Article III, Sections 10 and 17." Syl. pt. 1, Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977).

2. "The Due Process Clause of the state and federal constitutions requires that a convicted defendant be furnished a trial transcript for which he has made a timely request." Syl. pt. 1, State ex rel. Johnson v. McKenzie, 159 W.Va. 795, 226 S.E.2d 721 (1976).

3. Although subject to the direction and supervision of the circuit judges to whom they are assigned, court reporters, as employees of the Supreme Court of Appeals, whose primary functions consist of recording, transcribing, and certifying records of proceedings for purposes of appellate review, are subject to the ultimate regulation, control, and discipline of the Supreme Court of Appeals.

Jerry Weiner, Columbus, Ohio, for petitioner.

Menis E. Ketchum, Huntington, for respondent Jeanie Hall.

McGRAW, Justice:

The petitioner, Wilbert Mayle, sought to compel, through writ of mandamus, the provision of a transcript of his criminal trial for purposes of appeal. He perfected his notice of appeal following his conviction of first degree murder in early 1983. Despite repeated requests by counsel over the next two years, however, no transcript was provided. Therefore, on January 11, 1985, almost two years after his sentencing, this Court awarded a writ of mandamus compelling provision of the transcript of the petitioner's trial within fifteen days from entry of our order. We further ordered the Administrative Director of the Supreme Court of Appeals to suspend payment of respondent court reporter's salary if she failed to provide the transcript within the time specified until the transcript was provided.

The right to the timely provision of a transcript in a criminal case is both constitutional and statutory. In Syllabus Point 1 of Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977), this Court held that, "An indigent criminal defendant has a right to appeal his conviction. He is also constitutionally entitled to a copy of the trial court record, including the transcript of the testimony, without cost to him. West Virginia Constitution, Article III, Sections 10 and 17." See also Syl. pt. 1, State ex rel. Gary v. Warden, 288 S.E.2d 176 (W.Va.1982); State v. Moore, 273 S.E.2d 821, 831 (W.Va.1980); Syl. pt. 1, State ex rel. Kisner v. Fox, 267 S.E.2d 451 (W.Va.1980); Syl. pt. 1, Varney v. Superintendent, 264 S.E.2d 472 (W.Va.1980); Syl. pt. 1, Call v. McKenzie, 159 W.Va. 191, 220 S.E.2d 665 (1975); Syl., State ex rel. Hamrick v. Coiner, 156 W.Va. 17, 189 S.E.2d 846 (1971), State ex rel. Bradley v. Johnson, 152 W.Va. 655, 661, 166 S.E.2d 137, 141 (1969), overruled on other grounds, State v. Eden, 163 W.Va. 370, 384, 256 S.E.2d 868, 876 (1979); State ex rel. Tune v. Thompson, 151 W.Va. 282, 284, 151 S.E.2d 732, 733 (1966); State ex rel. Thompson v. Boles, 151 W.Va. 203, 204-05, 151 S.E.2d 112, 113-14 (1966); Syl. pts. 1 and 2, State ex rel. Kennedy v. Boles, 150 W.Va. 504, 147 S.E.2d 391 (1966); Syl. pt. 1, State ex rel. Legg v. Boles, 148 W.Va. 354, 135 S.E.2d 257 (1964); Syl., State ex rel. Banach v. Boles, 147 W.Va. 850, 131 S.E.2d 722 (1963); State v. Bosworth, 143 W.Va. 725, 729, 105 S.E.2d 1, 4 (1958); Linger v. Jennings, 143 W.Va. 57, 63, 99 S.E.2d 740, 744 (1957). Although the record in the present action is silent on the issue of indigency, even with respect to a nonindigent defendant, this Court held in Syllabus Point 1 of State ex rel. Johnson v. McKenzie, 159 W.Va. 795, 226 S.E.2d 721 (1976), that, "The Due Process Clause of the state and federal constitutions requires that a convicted defendant be furnished a trial transcript for which he has made a timely request."

The statutory basis for an indigent's right to a transcript in a criminal case is found in West Virginia Code § 51-7-7 (1981 Replacement Vol.), which provides, in pertinent part, that, "In any case wherein an indigent person has filed a notice of intent to seek an appeal ... the court ... shall ... direct the court reporter to furnish a transcript of the testimony and proceedings of the trial ... to the convicted person...." In State ex rel. Banach v. Boles, 147 W.Va. at 856, 131 S.E.2d at 727, this Court held that this statute "supplements, and perhaps exceeds, the rights ... guaranteed by the Fourteenth Amendment to the Constitution of the United States and Sections 10 and 17 of Article III of the Constitution of this State ...." Furthermore, another statute, West Virginia Code § 58-5-4 (Supp.1984), places a one year limitation on the time for transcript preparation. See State ex rel. Johnson v. McKenzie, 159 W.Va. at 803-04, 226 S.E.2d at 726; see also Rhodes v. Leverette, 160 W.Va. at 786, 239 S.E.2d at 140; Syl. pt. 2, State ex rel. Thompson v. Boles, supra.

The key to the timely provision of a transcript in a criminal proceeding is the court reporter. Under West Virginia Code § 51-7-1 (1981 Replacement Vol.), an antique statute which predates the Judicial Reorganization Amendment of 1974 by over fifty years in its current version, the circuit courts were responsible for the appointment and regulation of court reporters. Under the Judicial Reorganization Amendment of 1974, however, ultimate supervisory control over all state courts, and consequently over all state judicial officers and employees, including court reporters, rests with the Supreme Court of Appeals under West Virginia Constitution art. VIII, § 3, which provides that, "The court shall have general supervisory control over all intermediate appellate courts, circuit courts and magistrate courts.... The officers and employees of the supreme court of appeals ... shall be appointed and may be removed by the court. Their duties and compensation shall be prescribed by the court." Under this constitutional provision, court reporters are "employees" of the Supreme Court of Appeals. Therefore, although subject to the direction and supervision of the circuit judges to whom they are assigned, court reporters, as employees of the Supreme Court of Appeals, whose primary functions consist of recording, transcribing, and certifying records of proceedings for purposes of appellate review, are subject to the ultimate regulation, control, and discipline of the Supreme Court of Appeals.

Dilatory court reporters present a serious threat to the administration of the criminal justice system. As this Court stated in State ex rel. Johnson v. McKenzie, 159 W.Va. at 803-04, 226 S.E.2d at 726:

The right of a defendant to a transcript is not adequately satisfied merely by furnishing the transcript at a time convenient to the court reporter. A convicted defendant is entitled not only to...