State ex rel. Bratcher v. Cooke
| Decision Date | 16 May 1972 |
| Docket Number | No. 13160,13160 |
| Citation | 188 S.E.2d 769,155 W.Va. 850 |
| Parties | STATE ex rel. Clifford BRATCHER v. Ed COOKE, Sheriff, Boone County, et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
One convicted of a crime is entitled to the right to appeal that conviction and where he is denied his right to appeal such denial constitutes a violation of the due process clauses of the state and federal constitutions and renders any sentence imposed by reason of the conviction void and unenforceable.
E. Gail Falk, Legal Aid Society of Charleston, Charleston, for relator.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Willard A. Sullivan, Asst. Attys. Gen., Charleston, for respondents.
In this original proceeding in habeas corpus the petitioner, Clifford Bratcher, seeks release from the custody of respondent Ed Cooke, Sheriff of Boone County, on the ground that he was denied the right to appeal his conviction by reason of the incompetence of his counsel. In the alternative the petitioner prays that he be granted a new trial or that his original sentence be vacated and a new sentence be imposed so that his right to appeal may be revived.
Upon the aforesaid petition this Court, on December 6, 1971, granted a writ returnable January 18, 1972. On the latter date the case was continued generally. It came on for hearing on April 18, 1972, and, upon the petition and return and upon the briefs of counsel, was submitted for decision.
Giving rise to this habeas corpus proceeding is the following factual situation. On October 27, 1970 the petitioner was convicted by a jury of grand larceny in the Circuit Court of Boone County. Judgment was entered on November 6, 1970 and he was sentenced to incarceration in the state penitentiary. Thereafter the petitioner advised his counsel of his desire to appeal the judgment to the Supreme Court of Appeals of West Virginia and said counsel notified the court of his intention to appeal. Counsel for the petitioner subsequently obtained several stays of execution of the sentence, the purpose of which was to apply for an appeal. Finally, on September 28, 1971, said counsel filed a petition for a writ of error and supersedeas in this Court which petition was promptly refused for the reason that it was filed after the eight-month period following the judgment of conviction. See Code, 1931, 58--5--4, as amended.
The petitioner alleges, and it is undenied, that he and his wife persisted in their efforts to get his counsel to file a timely petition for appeal. In an affidavit, which is a part of the record of this proceeding, the said counsel for the petitioner clearly and unmistakably admits that the late filing of the petition for appeal was not attributable to any fault on the part of the petitioner...
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State v. Eden
...process clauses and renders the conviction void. State ex rel. Johnson v. McKenzie, W.Va., 226 S.E.2d 721 (1976); Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972). 14 It is clear to us that when a defendant refuses to prosecute an appeal to which he is entitled by law for fear he wil......
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People v. Bulger
...83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Counsel's performance must meet constitutional standard of effectiveness. State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972). Accord Evitts v. Lucey, 469 U.S. 387 [105 S.Ct. 830, 83 L.Ed.2d 821] (1985). Criminal defendants are entitled ......
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State Va. v. Vanhoose
...Federal Constitutions and renders any sentence imposed by reason of the conviction void and unenforceable.Syl., State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972). See also Rhodes v. Leverette, 160 W.Va. 781, 786, 239 S.E.2d 136, 140 (1977). Additionally, we have held tha......
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Rhodes v. Leverette
...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 defenda......