Rhodes v. Leverette

• Decision Date: 22 November 1977
• Docket Number: No. 13962,13962
• Citation: 239 S.E.2d 136,160 W.Va. 781
• Parties: Lawrence M. RHODES v. Bobby J. LEVERETTE, Warden, West Virginia Penitentiary.
• Court: West Virginia Supreme Court

Page 136

239 S.E.2d 136

160 W.Va. 781

Lawrence M. RHODES v. Bobby J. LEVERETTE, Warden, West Virginia Penitentiary.

No. 13962.

Supreme Court of Appeals of West Virginia.

Nov. 22, 1977.

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.

2. An indigent criminal defendant who desires to appeal his conviction has a right, under Article III, Sections 10 and 17 of the West Virginia Constitution, to the effective assistance of court-appointed counsel on his appeal.

3. An unconditional discharge from confinement upon the issuance of a writ of habeas corpus does not ordinarily operate to bar further prosecution under principles of double jeopardy.

4. "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." Syllabus Point 2, Carter v. Bordenkircher, W.Va., 226 S.E.2d 711 (1976).

5. Extraordinary dereliction on the part of the State sufficient to warrant unconditional release in a habeas corpus proceeding, where the relator's constitutional rights to an appeal have been violated, will largely depend on the facts of the individual case.

6. Factors to be considered in determining whether there has been extraordinary dereliction are: the clarity and diligence with which the relator has moved to assert his right of appeal; the length of time that has been served on the underlying sentence measured against the time remaining to be served; whether prior writs have been filed or granted involving the right of appeal; and the related question of whether resentencing has occurred in order to extend the appeal period. While extraordinary dereliction on the part of the State does not require a showing of malice or ill will, certainly if such is shown it would be a significant factor.

7. While the State is constitutionally obliged to appoint effective counsel to assist an indigent criminal defendant in his appeal, once this has been done there rests on the indigent criminal defendant some responsibility to make known to the court his counsel's inaction.

8. 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.

Robert V. Berthold, Jr., Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., John L. MacCorkle, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

In this habeas corpus proceeding we are asked to grant the writ and discharge the relator from further confinement on the ground that he was denied effective assistance of counsel on appeal.

In 1972, relator was found guilty by a jury of the crime of armed robbery. He had obtained approximately $10,000 at gunpoint by forcing a coal company paymaster and his family from their home to the company office where the money was obtained from a safe.

There is no dispute that after the trial, relator instructed his attorney to take an appeal. Approximately nine and one-half months later, when the appeal had not been taken, relator filed an application for a writ of habeas corpus, which this Court granted on April 30, 1973, returnable to Logan County. That court held a hearing on the writ on May 24, 1973, and the State confessed error as no trial transcript had been prepared.

The circuit court resentenced relator in order to extend the appeal period and reappointed his trial counsel to perfect the appeal. Relator was also given credit on the new sentence for the time previously served on the original sentence. Thereafter, on July 11, 1973, the trial transcript was filed in the circuit clerk's office, but still no appeal was prosecuted.

On June 22, 1977, relator filed in this Court another application for writ of habeas corpus. The writ was issued returnable to this Court on September 13, 1977, at which time the case was fully argued and submitted.

An indigent criminal defendant in this State has a right to appeal his conviction. West Virginia Constitution, Article III, Sections 10 and 17; Linger v. Jennings, 143 W.Va. 57, 62-63, 99 S.E.2d 740, 744 (1957). He is also constitutionally entitled to a copy of the trial court record, including the transcript of the testimony, at no cost to him. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The Griffin Court held that under the Due Process and Equal Protection Clauses of the Federal Constitution, a state cannot require an indigent defendant to pay for a transcript of trial proceedings. This Court, in State ex rel. Johnson v. McKenzie, W.Va., 226 S.E.2d 721 (1976), extended this concept, holding that the denial of a trial court record to a non-indigent defendant who desires an appeal violates due process.

A companion right, springing from the fact that an appeal is rather meaningless unless the indigent defendant has access to counsel, is that an indigent must be furnished court-appointed counsel to assist him on appeal. In the initial development of this doctrine, the United States Supreme Court considered the Due Process and Equal Protection Clauses to be the constitutional bases for such right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963). In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court appears to have recognized the Sixth Amendment right to counsel as a further constitutional foundation. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), indicates that the primary constitutional ground for the right of an indigent defendant to counsel on appeal is the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution.

Inherent in the concept of the right to counsel is that counsel be effective, and within this concept is the requirement that appointed counsel support his client's appeal to the best of his ability. ¹ Anders v. California, supra.

This Court recognized in State ex rel. Bradley v. Johnson,152 W.Va. 655, 166 S.E.2d 137 (1969), that an indigent defendant is entitled to effective assistance of counsel on appeal. The right to appointed counsel in the case of indigency comes within the equal protection guarantee of Article III, Section 17 of the West Virginia Constitution. In State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 852, 188 S.E.2d 769, 770 (1972), a criminal defendant's counsel failed to file a timely appeal after being requested to do so by the defendant, and this Court concluded:

" . . . a convicted defendant can not be denied his right to appeal, either by the trial judge or by one outside the judicial system. Such denial constitutes a violation of the due process clauses of the state and federal constitutions and the judgment imposing sentence is void and unenforceable."

From the foregoing principles, it is clear that this Court is committed to the concept that effective assistance of counsel on appeal is guaranteed through the Due Process Clause of the West Virginia Constitution, Article III, Section 10.

It is not disputed that relator has been twice denied his right to appeal. In the first instance the denial occurred because the State failed to furnish a trial transcript before the appeal period expired. The present violation centers on the failure of court-appointed counsel to perfect an appeal within the appeal period allowed following resentencing.

The issue that now must be addressed is the form of relief which should be awarded. We are considering the writ of habeas corpus ad subjiciendum. When issued, this writ commands one who detains another to bring such person before the court. Where the term "habeas corpus" is used alone, it is understood to mean the writ of habeas corpus ad subjiciendum. Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).

Much has been written about the origins of this writ and for those interested in its evolution, reference is made to Click v. Click, supra ; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); and Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). ²

In addition to its common law roots, the writ of habeas corpus acquired constitutional dimensions in the sense that its privilege cannot be suspended by the Federal government except in certain extreme cases. United States Constitution, Article I, § 9, cl. 2. ³ In this State the privilege of the writ is even more absolute as "the privilege of the writ of habeas corpus shall not be suspended." West Virginia Constitution, Article III, Section 4. Finally, under W.Va.Code, 53-4A-1, et seq., certain procedural modifications have been made in regard to the courts' jurisdiction of the writ. ⁴

The United States Supreme Court has made it clear that the writ of habeas corpus, because of its broad availability to challenge confinement contrary to the Constitution, cannot be limited to a particular form of remedial relief. Preiser v. Rodriguez, supra ; ⁵ Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

We begin with the proposition that an unconditional discharge from confinement upon the issuance of a writ of habeas corpus does not ordinarily operate to bar further ...