State ex rel. Hamrick v. Coiner

• Decision Date: 11 July 1972
• Docket Number: No. 13137,13137
• Citation: 156 W.Va. 17,189 S.E.2d 846
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Jasper S. HAMRICK v. Ira M. COINER, Warden, West Virginia Penitentiary.

Page 846

189 S.E.2d 846

156 W.Va. 17

STATE ex rel. Jasper S. HAMRICK v. Ira M. COINER, Warden, West Virginia Penitentiary.

No. 13137.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 26, 1971.

Decided Nov. 23, 1971.

On Rehearing July 11, 1972.

Syllabus by the Court

'An indigent person who substantially complies with the requirements of the applicable statute is entitled to a free transcript which he seeks for the purpose of applying for an appeal from a judgment upon an indictment for a criminal offense for which he has been tried and found guilty and sentence has been imposed.' Point 1, Syllabus, State ex rel. Kennedy v. Boles, 150 W.Va. 504, 147 S.E.2d 391.

Dana C. Eakle, Clay, for relator.

Chauncey H. Browning, Jr., Atty. Gen., George E. Lantz, Deputy Atty. Gen., Richard E. Hardison, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, President:

The relator, Jasper S. Hamrick, asserting that his constitutional rights have been violated, invokes the original jurisdiction of this Court in seeking a writ of habeas corpus to compel the respondent, Ira M. Coiner, Warden of the West Virginia Penitentiary, to release him from custody. Upon the relator's petition this Court granted a writ, returnable October 26, 1971. On that date the case was submitted for decision on the briefs of the respective parties, there having been no oral argument presented.

At the July Term, 1969, of the Circuit Court of Clay County, the relator was indicted for the crime of burglary. Upon entering a plea of not guilty he was tried by a jury and found guilty as charged in the indictment. Pursuant to the verdict the relator was sentenced to confinement in the state penitentiary for a term of from one to fifteen years where he is presently incarcerated. This sentence was imposed on July 29, 1970.

Subsequent to his arrival at the penitentiary, the relator, on September 8, 1970, within sixty days of the date of his conviction order, forwarded a letter to the Judge of the Circuit Court of Clay County informing him of his intention to prosecute an appeal from the aforesaid conviction. Pursuant to such expressed intention, the relator requested the judge to direct the clerk of the court 'to furnsh the necessary records to counsel so that he may perfect the appeal.' Also, in this letter, he noted that he was not informed by the court or counsel that he had a right to appeal from his conviction. He stated that he was 'indigent and can not afford to retain counsel to perfect the appeal'. In addition to his request for the record, he requested the court to appoint counsel to assist him.

The Judge of the Circuit Court of Clay County, by letter dated September 18, 1970, acknowledged receipt of the relator's letter. Therein he further said: 'When you have presented to this Court a proper petition and your affidavit of forma pauperis the Court will then act upon it. The letter requesting the relief sought by you is insufficient.' Consequently, the relator, upon the assertion that his constitutional rights have been violated, seeks release from custody.

Although the relator contends that he was denied effective counsel by not being advised of his right to appeal, his principal ground for the relief sought is the court's failure, upon request, to furnish him a free transcript of the 'necessary records' so that he could timely prosecute an appeal.

It is the position of the relator that the intention expressed and the requests made in his letter of September 8, 1970 constituted compliance with the requirements of Code, 1931, 58--5--4, as amended, and 51--7--7, as amended, and that he was thereupon entitled to receive a free transcript of the proceedings below. The respondent, of course, takes the opposite view. While he is in agreement with the general principles forwarded by the relator concerning an indigent At the threshold of the now universally accepted proposition that the failure to furnish, without cost, a transcript to an indigent person for the purpose of enabling him to appeal a conviction constitutes a violation of his fourteenth amendment rights, is Griffin v. State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. Inview of the decision in that case and in others decided by the United States Supreme Court and this Court, and in view of the acceptence of the foregoing proposition by the respondent, we will not further encumber this opinion with citation or comments in support thereof.

person's right to a transcript without cost, he asserts that the relator has failed to comply with the above statutes.

Pertinent to the decision of this case is a consideration of the aforementioned statutes. Code, 1931, 58--5--4, as amended, provides, where relevant, 'In criminal cases no petition for appeal or writ of error shall be presented unless a notice of intent to file such petition shall have been filed with the clerk of the court in which the judgment or order was entered within sixty days after such judgment or order was entered. The notice shall fairly state the grounds for the petition without restricting the right to assign additional grounds in the petition.'

The relator made his request under the provisions of Code, 1931, 51--7--7, as amended, the pertinent portions of which provide: 'In any case wherein an indigent person has filed a notice of intent to seek an appeal or writ of error * * * the court, or judge thereof in vacation, upon written request of such convicted person or his counsel, presented within sixty days after the entry of such judgment, shall, by order entered of record authorize and direct the court reporter to furnish a transcript of the testimony and proceedings of the trial * * * to the convicted person, without charge to him, for use in seeking his appear or writ of error * * *.'

Inasmuch as the relator's request for a transcript was made under the authority of Code, 1931, 51--7--7, as amended, we must consider and determine whether the requirements thereof were met. In his brief the respondent takes the position that the 'mere informal note' of the relator to the judge could not be sufficient to entitle him to a free transcript. The notice of intent, alluded to in that code section will be discussed later herein. Other than that, what are the requirements of the statute? To obtain a transcript thereunder one must be an indigent person. The relator stated in direct and unequivocal language that he was indigent and could not afford to retain counsel. The statute does not call for an affidavit to prove indigence and none is needed. The only other requirements of that statute are that he make a written request for the transcript and that such request be made within sixty days after the entry of the judgment. Here, the request was made in writing and was made within sixty days after the entry of the judgment entered against him.

Substance, not form, is the essence of Code, 1931, 51--7--7, as amended. The purpose thereof, to permit an indigent person to prosecute an appeal, is clearly evident and such purpose should not be defeated by requiring formalities. It is pertinent that the caption to said section reads, in part, 'Transcripts to be furnished indigent persons under conviction upon timely request'. It is probable that an indigent person under conviction does not have counsel; it is probable that such indigent person is not learned in the procedures of the law; therefore, society should not exact formal requirements from him. Upon a reasonably clear request wherein a convicted indigent person substantially complies with the above statute, he should be furnished the necessary transcript of his trial so that he can complete the appellate process.

As heretofore noted, the relator in the instant case made a timely written request for a transcript for the purpose of perfecting an appeal. No 'proper petition' or affidavit of forma pauperis, as demanded by the trial judge, is required by Code, 1931 The respondent relies principally on the alleged failure of the relator to file a notice of intent to seek an appeal as specified in Code, 1931, 58--5--4, as amended. He asserts that such notice is required before a request under Code, 1931, 51--7--7, as amended, can be honored.

51--7--7, as amended. The request was made by an indigent person under conviction who at that time was without the assistance of counsel, not by an attorney. Equity implores and justice demands that the relator, upon his written and timely request, be furnished the necessary transcript of the proceedings of his trial so that he may prosecute an appeal.

Under the decisions of this Court the notice of intent to appeal is a mandatory and jurisdictional requirement and without such notice an appeal is precluded. State v. Legg, 151 W.Va. 401, 151 S.E.2d 215. Under the provisions of Code, 1931, 58--5--4, as amended, one convicted of a crime who wants to appeal must have filed a notice of such intent with the clerk of the court within sixty days after the entry of the judgment against him. These are the principal requirements, making clear the main purpose of said code section, that being to inform the court of his intent to appeal. In the instant case the relator wrote to the judge of the court in which he was convicted, saying: 'This is to notify the court that I wish to appeal the decision rendered on the 28th day of July, 1970, in the above referenced styled case, to the State Supreme Court of Appeals of West Virginia, Charleston, West Virginia.' Certainly, such direct notice to the judge complies with the mandate of the statute. Although this was not directed to the clerk of the court, as prescribed by statute, the purpose of the statute was satisfied by going directly to the court. Also, the notice of intent to appeal was filed with the court within sixty days from the date of the judgment order. The statute further provides that he shall fairly state the grounds for his appeal but it does not restrict additional...