Pettry v. Boles

• Decision Date: 09 November 1967
• Docket Number: Civ. A. No. C-67-63-E.
• Citation: 275 F. Supp. 744
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Gene Tunney PETTRY, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

275 F. Supp. 744

Gene Tunney PETTRY, Petitioner, v. Otto C. BOLES, Warden of the West Virginia State Penitentiary, Respondent.

Civ. A. No. C-67-63-E.

United States District Court N. D. West Virginia.

November 9, 1967.

No appearance, for petitioner.

Morton I. Taber, Asst. Atty. Gen., Charleston, W.Va., for respondent.

MAXWELL, Chief Judge.

The Petitioner, Gene Tunney Pettry, is presently serving an indeterminate sentence of not less than five nor more than eighteen years imposed following his conviction of second degree murder in the Circuit Court of Roane County in 1965. After exhausting the available State remedies, he applied to this Court for federal habeas corpus relief. In his petition he alleges that he was prevented from appealing his conviction before the Circuit Court because of the erroneous advice of trial counsel.

The Petitioner alleges that his attorney advised that, although his chances for reversal on appeal were excellent, he could be subsequently found guilty of first degree murder on retrial and receive a life sentence.

In answer to this Court's show cause order, the Respondent submitted, as Exhibit No. 5, an affidavit from the Petitioner's attorney. This affidavit confirmed the Petitioner's allegation, thereby making it unnecessary to hold a hearing since there is now no factual dispute on this issue.

The questions presented by the pleadings are, first, whether this advice was erroneous and, second, whether the advice operated to deny the Petitioner his right to appeal.

Under West Virginia law, it is well-settled that a conviction of second degree murder bars a later conviction of first degree murder involving the same victim, even though the second degree conviction is later reversed on appeal. State v. McLane, 126 W.Va. 219, 27 S.E. 2d 604 (1943). The court in the McLane case upheld an instruction which informed the jury of the elements of first degree murder, while directing it that second degree murder was the highest offense for which a verdict could be returned. The court, in rationalizing this apparent inconsistency, assumed that under the West Virginia Constitution, Art. 3, Sec. 5, the defendant could not have been tried again for first degree murder.

The United States Supreme Court has not passed on the question of whether the double jeopardy provisions of the Fifth Amendment apply to the states. See Cichos v. Indiana, 385 U.S. 76, 87 S.Ct. 271, 17 L.Ed.2d 175 (1966). However, as a matter of federal law, the court held in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957) that the jury in the first trial had in effect acquitted the defendant of the more serious offense, thereby barring subsequent prosecution for that offense. The court rejected the argument that an appeal would waive the defense of former jeopardy with these words:

Conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy. 355 U.S. at 193-194, 78 S.Ct. at 227.

Additionally, the Court of Appeals for the Fourth Circuit has indicated that it considers portions of the double jeopardy clause of the Fifth Amendment to be applicable to the States. Patton v. State of North Carolina, 381 F.2d 636 (4th Cir., June 14, 1967) at Footnote 20.

Since it appears from the pleadings that the Petitioner was misinformed as to the possible consequence of appealing his conviction, little would be accomplished by attempting to judicially determine what effect this had on his subsequent decision not to take an appeal. There is, in addition, a great deal in the record now before this Court which indicates the general mental instability of the Petitioner at the time of the offense and at the trial. His attorney states in the affidavit earlier referred to that:

I cannot say that Mr. Pettry had all of his faculties at the time he agreed to abide by the verdict of the jury and the sentence of the Court.

In light of the foregoing it is difficult to weigh the effect of the erroneous advice of his counsel on the later decision not to appeal.

It is, however, the determination of this Court that the erroneous advice of the trial counsel played a significant part in the Petitioner's later decision not to appeal. This worked to deprive him of the equal protection of the laws guaranteed by the Fourteenth Amendment.

The Petitioner assuredly was influenced in his decision by the advice given by his counsel. Whether he would have appealed if counsel had correctly advised him of his implied acquittal of first degree murder is a moot question at this point. In all likelihood, he would have appealed if correctly apprised of the situation, since there would have been nothing for him to lose and the possibility of a new trial to gain.

Since this Court has determined that the Petitioner has been unconstitutionally deprived of his right to appeal¹ the judgment imposed upon him by the Circuit Court of Roane County, the one question which remains is the manner in which this wrong can be most expeditiously rectified.

Unlike the Supreme Court of Appeals of Virginia² the West Virginia Supreme Court of Appeals has consistently refused to permit late appeals. See e. g. State v. Legg, W.Va., 151 S.E.2d 215 (1966); State ex rel. Davis v. Boles, W. Va., 151 S.E.2d 110 (1966); State ex rel. Thompson v. Boles, W.Va., 151 S.E.2d 112 (1966); and State ex rel. Cephas v. Boles, 149 W.Va. 537, 142 S.E.2d 463 (1965). The failure of a criminal defendant to comply with the provisions of West Virginia Code, 1931, Section 58-5-4, as amended,³ constitutes a jurisdictional defect which precludes the Supreme Court of Appeals from considering the merits of the appeal.

The holding in the Legg case was that the filing of a motion for a new trial, the obtaining of a stay in order to appeal along with several other steps, taken with the intent to perfect an appeal, were not "substantial compliance" with West Virginia Code, Section 58-5-4.⁴ The holdings in the other three cases which dealt with the question of late appeals are not especially relevant to the question now before this Court, since each of these decisions seems to be based on a factual finding that the petitioner himself was responsible for the failure to perfect the appeal within the statutory time periods.

The issue which the Petitioner in the instant case presents to this Court is the denial of his appeal because of certain acts and omissions on the part of his state court trial counsel. This is a very different question from whether a court will entertain a late appeal.

Time limits for the filing of an appeal are necessary and proper to ensure that a given case is brought to a relatively speedy termination. "The law's delay" of which Shakespeare complained would indeed be onerous if the losing party in either a civil or criminal action could store up his appeal rights and then attempt to enforce them whenever the time seemed most opportune. No judgment would ever be final if this were permitted. Since there is a time when all litigation must end, it seems reasonable to draw the line at the moment when the statutory period for filing an appeal expires.

It should perhaps be noted by way of comparison that the time limits for filing a criminal appeal in the federal courts are even more stringent than those of the West Virginia courts. Rule 37(a) (2) of the Federal Rules of Criminal Procedure requires a defendant to file his notice of appeal within 10 days from the date of the entry of the judgment or order appealed from.

There are, however, several factors in federal practice which militate against the harshness of the 10 day time period. First, Rule 32(a) (2) of the Rules requires the court, in a case where the defendant has gone to trial on a plea of not guilty, to advise the defendant of his appeal rights after imposing sentence.⁵

Second, and more importantly, the federal post conviction review statute⁶ affords a means of easy and quick redress in cases where the defendant has been deprived of his appeal because of the negligence or carelessness of the attorney representing him.

A motion is made under Section 2255 to vacate the sentence imposed because of the unconstitutional denial of the defendant's right to appeal. If the allegation is found to be true, then the court may vacate and immediately reimpose the original sentence, thereby "recreating" the defendant's appeal rights. After the reimposition of the sentence, the defendant would have 10 days in which to file his notice of appeal. Dillane v. United States, 121 U.S.App.D.C. 354, 350 F. 2d 732, 733 (1965).

This approach has been criticized by some writers and courts because of its "unsettling effect upon the stability of judicial determinations."⁷ See e. g., Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).

The argument overlooks the practicality of this solution to the problem of fashioning a remedy to correct the situation created by an unconstitutional denial of an appeal. If a federal court could not vacate and then reimpose the sentence in cases such as these, the only alternative would be to order a new trial. And, whatever the difficulties involved in reviewing a vintage case on appeal, they are small indeed when compared to the problems confronting counsel who would undertake to re-try a case after the passage of several years. The court files and the transcript of the trial testimony are immediately accessible in the federal system for a period of at least 10 years⁸ so there is little practical difficulty in preparing the record for appeal barring, of course, such unforeseeable problems as the death of the reporter or the accidental loss of the court file.⁹

Also, there is an additional reason for utilizing the remedy afforded by Section 2255 in cases where there has been an...