State ex rel. Johnson v. McKenzie
| Decision Date | 23 July 1976 |
| Docket Number | No. 13714,13714 |
| Citation | 226 S.E.2d 721,159 W.Va. 795 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Robin Dale JOHNSON v. Arthur L. McKENZIE, acting warden, West Virginia State Penitentiary. |
Syllabus by the Court
1. The Due Process Clause of the state and federal constitutions requires that a convicted defendant be furnished a trial transcript for which he has made a timely request.
2. Issuance of a writ of habeas corpus does not discharge a person from the legal consequences of an act or acquit him of a crime; it merely frees the person from continued restraint unless the State elects to resume the proceedings at the point reached prior to the unlawful action by the court.
3. A circuit court, or this Court, pursuant to its jurisdiction in habeas corpus may stay the discharge of a defendant to afford the State a reasonable opportunity to take such action as may be constitutionally permissible to correct a defect in the proceedings.
4. Relief in habeas corpus for failure to provide a transcript within the maximum one-year period authorized by W.Va.Code, 58--5--4, As amended, where a timely request has been made, operates to discharge the defendant from custody subject to the right of the State to provide a transcript within thirty days.
5. The authority of a circuit court to resentence a defendant, who has obtained relief in habeas corpus for failure to obtain a transcript upon a timely request, is limited to those instances in which the transcript is made available within the thirty-day period subsequent to the order awarding relief.
W. Jack Stevens, Hamlin, for relator.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for respondent.
In this original proceeding in habeas corpus, the relator, Robin Dale Johnson, seeks discharge from confinement in the West Virginia Penitentiary. The relator premises his prayer for discharge upon the failure of the State of West Virginia to provide him with a transcript of trial proceedings for which he had made a timely request. The legal consequence of his inability to obtain a transcript has been to deny him of his due process right to apply for appellate review of his conviction.
The defendant was convicted of first degree murder in the Circuit Court of Logan County. On January 28, 1974, he was sentenced to life imprisonment. After the sentence, the relator filed a timely notice of intent to appeal and a request for a transcript. Thereafter the eight-month appeal period provided by W.Va.Code, 58--5--4, As amended, expired. No appeal was perfected because no transcript was provided.
On January 6, 1975, the relator was resentenced in order to provide an additional period for appeal. 1 A partial transcript was presented to the circuit judge for certification. On August 29, 1975, the circuit judge extended the time for appeal for four months in order for the court reporter to prepare additional matters for the record. 2 When this period expired, the relator had not perfected his appeal because no transcript had been provided.
Therefore, on January 28, 1976, the relator was resentenced for a second time. After the lapse of four months, the relator filed this habeas corpus proceeding, asserting the right to absolute discharge because of his inability to obtain a transcript for the purpose of appealing his conviction. We issued a writ of habeas corpus on May 3, 1976.
When the case was argued on June 15, 1976, counsel for the respondent appeared and admitted that, despite the relator's timely requests for a transcript following each of the three sentencing procedures, no transcript had been furnished. The respondent by answer prays for the writ to be discharged as premature since the present appeal period will not expire until August 28, 1976.
Two and one-half years have now elapsed since the relator was originally sentenced. He cannot perfect an appeal of his conviction because he has no transcript. The issue framed by the pleadings is whether the relator because of inordinate delay in the preparation of a transcript has been denied due process of law, entitling him to unqualified release from custody. The determination of this issue, however, entails a reexamination of resentencing as a remedy in cases where a transcript has been denied and an analysis of the concept of discharge in habeas corpus.
In Griffin v. Illinois, 3 the United States Supreme Court held that a defendant could not be denied a transcript simply because of indigency. The free transcript concept is predicated upon the theory that, where the state extends a right to apply for appellate relief, 'the Due Process and Equal Protection Clauses' protect defendants from 'invidious discrimination', which would effectively deny an adequate appellate review.
The free transcript concept has been adhered to by this Court in numerous cases. 4 It has provided the basis for dedisions extending these constitutional guarantees to protect and encompass a broad range of appellate rights. 5 These decisions reflect the principle that a convicted defendant cannot be denied his right to appeal, either by a trial judge or by one outside the judicial system. To deny a defendant his right to appeal constitutes a denial of due process of law in violation of the federal and state constitutions. State ex rel. Bratcher v. Cooke, W.Va., 188 S.E.2d 769 (1972).
The wrongful conduct complained of in the instant case is the failure of a state-employed court reporter to provide a trial transcript. While the claim of denial by reason of indigency is not asserted in this case, the failure to provide a trial transcript upon a timely request is no less a violation of due process.
While the law of this State does not require a transcript of trial proceedings as a condition precedent to the right of appeal, as a practical matter an appeal cannot be effectively prosecuted without one. Boles v. Kershner, 320 F.2d 284 (4th Cir. 1963); Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957). To be considered by an appellate court upon review, the errors must be affirmatively shown by the record. 6 Errors in the actual trial proceedings, except those instructions which are given, are precluded from consideration on appeal unless a trial transcript has been prepared and properly made a part of the record. 7 To so limit appellate review is tantamount to a denial of the right to appeal. Clearly, therefore, due process requires that a defendant be furnished a transcript upon a timely request.
Having established the principle that due process requires the State to afford a defendant a trial transcript upon a timely request, we next determine what relief a defendant is afforded when the failure to furnish a transcript prevents the prompt exercise of appellate rights.
In the initial decisions of this Court involving indigency claims, the defendant was discharged from custody by a writ of habeas corpus. State ex rel. Kennedy v. Boles; 8 State ex rel. Legg v. Boles; 9 State ex rel. Banach v. Boles. 10 The concept of a discharge in habeas corpus, however, a became a subject of judicial controversy in later opinions.
The dispute as to the meaning and effect of a discharge in habeas corpus first surfaced in State ex rel. Tune v. Thompson. 11 In Tune the Court considered whether a retrial of a defendant, who had obtained his release in habeas corpus for failure to afford him due process of law by withholding a transcript, constituted double jeopardy. In determining that it did not, the Court predicated its decision upon the nature of habeas corpus relief. In Tune the Court determined that a discharge affected only the illegal restraint and that '(i)t does not act upon the penalty nor does it operate as an absolute discharge from the legal consequences, or as an acquittal, of a crime.' 12 According to Tune a writ of habeas corpus merely requires 'resumption of the proceedings at the point they had reached prior to the unlawful action on the part of the court.' 13
Judge Calhoun, dissenting from the decision of the majority, reasoned that a denial of appellate rights did not permit a resumption of proceedings at the point of error since the infringement, while of constitutional dimension, did not render the former proceedings void. Therefore, in view of the limited concept of available relief--discharge, remand, or admission to bail 14--a trial court could not condition the discharge of a defendant whose appellate rights had been denied subject to the right of the state to correct the constitutional deficiency by a new trial.
Following Tune circuit courts began to follow a federally conceived practice of delayed appeal through resentencing. By voiding the original sentence in habeas corpus, the circuit court could resentence the defendant and cause the jurisdictional eight-month appeal period to recommence. Under this procedure the defendant was given a second opportunity to exercise his appellate rights, hopefully without unconstitutional impediments. The resentencing procedure was approved by a unanimous Court in State ex rel. Bradley v. Johnson. 15 Bradley established the authority of a court to discharge a defendant in habeas corpus subject to the right of the State to correct the constitutional deficiency by retrial or resentencing.
Consequently, applying the limited discharge principle set forth in Bradley, the Court in State ex rel. Bratcher v. Cooke 16 delayed discharge for a period of thirty days to permit resentencing.
In State ex rel. Hamrick v. Coiner, W.Va., 189 S.E.2d 846 (1972), however, the controversy arose again. In Hamrick a convicted defendant sought habeas corpus relief for denial of a transcript. A divided Court held he was entitled to be 'released forthwith from custody.' Judges Calhoun and Berry dissented, reasoning that the decision, silent as to the right of the State to proceed in a constitutionally permissible manner to...
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