State ex rel. Gary v. Warden, Huttonsville Corrections Center, 14941

• Decision Date: 05 March 1982
• Docket Number: No. 14941,14941
• Citation: 288 S.E.2d 176,169 W.Va. 421
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Lawrence A. GARY v. WARDEN, HUTTONSVILLE CORRECTIONS CENTER.

Page 176

288 S.E.2d 176

169 W.Va. 421

STATE ex rel. Lawrence A. GARY v. WARDEN, HUTTONSVILLE CORRECTIONS CENTER.

No. 14941.

Supreme Court of Appeals of West Virginia.

March 5, 1982.

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." Syl. pt. 1, Rhodes v. Leverette, W.Va., 239 S.E.2d 136 (1977).

2. "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." Syl. pt. 5, Rhodes v. Leverette, W.Va., 239 S.E.2d 136 (1977).

Franklin D. Cleckley, Morgantown, for appellant.

Chauncey H. Browning, Atty. Gen. and Jerry Dove, Asst. Atty. Gen., Charleston, for appellee.

PER CURIAM:

Appellant Lawrence Gary appeals the denial of a writ of habeas corpus in the Circuit Court of Upshur County. He alleges that he is entitled to unconditional discharge from confinement because of the State's dereliction in failing to provide him a copy of his trial transcript and accompanying proceedings.

The appellant was convicted of second degree murder in October of 1977. On November 3, 1977, he was sentenced to five to eighteen years in the penitentiary. A notice of intent to appeal and request for transcript were filed with the circuit court on the same day. Thereafter the eight month appeal period expired with no appeal being taken because no transcript was provided. On July 10, 1978 the time for appeal was extended for four months in order for the transcript to be prepared. The circuit court resentenced appellant on November 17, 1978, in order to extend the appeal period. W.Va.Code, 53-4A-7(c) [1967]. A partial transcript was furnished to the appellant on January 24, 1979. That transcript was complete except for pre-trial motions and post-conviction bail proceedings.

On July 26, 1979, the remainder of the transcript (absent the post conviction bail hearing) was furnished to the appellant. On the same day he filed an application for a writ of habeas corpus in the Circuit Court of Randolph County; several days later the petition was transferred to the Circuit Court of Upshur County. The court held a hearing on the petition and by order dated November 29, 1979, denied the writ. In this appeal the appellant contends that he is entitled to an unconditional discharge from custody.

Clearly, the relator is entitled to a copy of the trial court transcript. As we stated in Syl. pt. 1 of Rhodes v. Leverette, W.Va., 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.

However, the record in this case shows that the relator was provided with a nearly complete copy of his transcript seven months before he filed his petition for a writ of habeas corpus and was provided with the remaining portion on July 26, 1979, the actual day he filed the petition.

In seeking discharge from custody, the relator relies principally upon the case of State ex rel. Johnson v. McKenzie, W.Va., 226 S.E.2d 721 (1976). In Johnson we recognized that extraordinary dereliction on the part of the State in providing relator with a transcript and an appeal could amount to a denial of due process requiring that relator be unconditionally discharged from custody. We clarified the concept of extraordinary dereliction in Syl. pt. 6 of Rhodes v. Leverette, supra :

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...