Pratt v. Holland, 16656

• Decision Date: 17 December 1985
• Docket Number: No. 16656,16656
• Court: West Virginia Supreme Court
• Parties: Raymond PRATT v. Manfred HOLLAND, Warden, West Virginia Penitentiary.

Page 236

338 S.E.2d 236

175 W.Va. 756

Raymond PRATT v. Manfred HOLLAND, Warden, West Virginia Penitentiary.

No. 16656.

Supreme Court of Appeals of West Virginia.

Dec. 17, 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 transcript of the testimony, without cost to him. West Virginia Constitution, Article III, Sections 10 and 17." Syllabus Point 1, Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977).

2. "The constitutional right to appeal cannot be destroyed by counsel's inaction or by a criminal defendant's delay in bringing such to the attention of the court, but such delay on the part of the defendant may affect the relief granted." Syllabus Point 8, Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977).

Vic Barone, Charleston, for appellant.

Atty. Gen.'s Office, Charleston, for appellee.

PER CURIAM.

This is an original proceeding in habeas corpus in which the relator asks that he be discharged from further confinement on the ground that he has been denied the right to a meaningful appeal.

The relator was convicted of the armed robbery of a Fairmont grocery store in the Circuit Court of Marion County in April of 1976. On May 24, 1976, he was sentenced to life imprisonment. A notice of intent to appeal and request for transcript were filed with the circuit court on June 11, 1976. The court granted the motion for a free transcript on October 26, 1976. On December 29, 1976, the time for appeal was extended because the relator had not received his transcript. The major portion of the transcript was furnished to the relator on April 14, 1977. That transcript was complete except for the suppression hearing at relator's trial. Relator's counsel filed a motion for resentencing in March of 1978 but the record contains no order that the relator was in fact resentenced. On July 21, 1978, the remainder of the transcript was furnished to the relator. For reasons that do not appear in the sparse record before us, no appeal was taken after the transcript was received.

On March 4, 1982, relator's new counsel ¹ filed an application for a writ of habeas corpus in the Circuit Court of Marion County alleging that the relator had effectively been denied his right to a meaningful appeal and asserting that the life sentence imposed upon him was improper. By order dated April 12, 1982, the writ was granted in part and denied in part. The circuit court found that the relator had been denied his right to a meaningful appeal but apparently also found that there had been no extraordinary dereliction on the part of the state; therefore, the circuit court denied the relator's request for discharge from confinement. The relator was resentenced in order to extend the appeal period. W.Va.Code 53-4A-7(c) [1967]. Relator's counsel then made an oral motion for reduction of sentence and the court ordered a pre-sentence investigation. The court resentenced the relator on November 15, 1983 to life imprisonment with the intention of the court that the relator be eligible for parole after serving a minimum of ten years. The relator was given credit on the new sentence for the time previously served on the original sentence.

On March 28, 1984, the relator filed a pro se application for a writ of mandamus in the circuit court requesting copies of various documents relating to his trial and conviction. In a letter dated April 5, 1984, the circuit court informed the relator that "the necessary preliminary steps" had been taken to appoint appellate counsel for him and that he should notify the court about whether he still wanted a lawyer to prosecute his appeal. The relator informed the court that he did want a lawyer to represent him and that the relevant documents could be sent to the person appointed. In a letter dated April 26, 1984, the circuit court appointed counsel for the relator. On December 1, 1984, the appeal period was again extended in order that counsel could perfect an appeal. ²

On December 3, 1984, the relator filed in this Court an application for a writ of habeas corpus. The writ was issued returnable to this Court on April 24, 1985. Thereafter, upon joint motion of the parties, the case was continued to September 11, 1985.

Clearly, the relator is entitled to appeal his conviction and receive a copy of the trial court transcript. As we stated in Syllabus Point 1 of Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977):

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.

He is also entitled to court-appointed counsel, because as we recognized in Rhodes, an appeal is meaningless unless the indigent defendant has access to counsel. This case does not revolve around the failure of the state to provide relator with a copy of his transcript. It is undisputed that the relator received the major portion of his transcript in 1977 and received the rest of it in July of 1978. Although the relator was denied the right to appeal during the first appeal period he was subsequently provided with a transcript and resentenced to extend the time to appeal. There is nothing in the record to indicate why relator's court-appointed trial counsel did not pursue an appeal after they first filed for an extension of time in which to do so and after they filed the motion for resentencing in March of 1978. Neither is there anything in the record to suggest why there was an approximate four-year delay between the motion for resentencing and the filing of the habeas corpus application by new counsel in 1982.

The relator contends that he is...