State ex rel. Kennedy v. Boles

• Decision Date: 29 March 1966
• Docket Number: No. 12546,12546
• Citation: 147 S.E.2d 391,150 W.Va. 504
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Adair KENNEDY v. Otto C. BOLES, Warden, West Virginia Penitentiary.

Page 391

147 S.E.2d 391

150 W.Va. 504

STATE ex rel. Adair KENNEDY v. Otto C. BOLES, Warden, West Virginia Penitentiary.

No. 12546.

Supreme Court of Appeals of West Virginia.

Submitted March 1, 1966.

Decided March 29, 1966.

Syllabus by the Court

1. 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.

2. The failure of the circuit court, in which an indigent person was convicted and sentenced to imprisonment for a criminal offense, acting by its clerk, to furnish a duly requested transcript in sufficient time to enable such indigent person to apply for an appeal, constitutes a denial of due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States and by Article III, Sections 10 and 17, of the Constitution of this State; the judgment imposing sentence is unenforceable; and such indigent person, in a habeas corpus proceeding, is entitled to be released forthwith from custody under such judgment.

Caton N. Hill, Jr., Philippi, for relator.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, Judge.

Invoking the original jurisdiction of this Court in this habeas corpus proceeding, the petitioner, Adair Kennedy, who is presently confined in the penitentiary of this State by virtue of a sentence of imprisonment for a period of fifteen years imposed by the Circuit Court of Taylor County, West Virginia, by its final judgment rendered May 23, 1964, seeks a writ to prevent the enforcement of such sentence and to require the defendant, Otto C. Boles, Warden of the West Virginia Penitentiary, to release him from such confinement.

The petitioner was indicted at the January 1964 Term of the Circuit Court of Taylor County for the offense of armed robbery. Counsel was appointed to assist him and a plea of not guilty was entered. Upon the trial of the case the petitioner was found guilty, as charged, by the jury and, his motion to set aside the verdict having been overruled, by judgment rendered May 23, 1964, he was sentenced to confinement in the penitentiary of this State for a term of fifteen years.

By letter dated June 4, 1964, addressed to the clerk of the circuit court, the petitioner requested the clerk to cause an order to be entered directing the circuit court reporter to transcribe and prepare a copy of the proceedings of the trial and to send such transcript to the petitioner, who desired to use it for the purpose of an appeal, and informed the clerk that he was a pauper and unable to pay any costs or fees for such transcript. In the letter the petitioner referred to the pertinent statutes, Section 7, Article 7, Chapter 51, Code, 1931, as amended, and Section 1, Article 2, Chapter 59, Code, 1931. By letter dated June 11, 1964, the clerk informed the petitioner that to get the requested papers it would be necessary for him to petition the court to direct the court reporter to prepare the transcript and for him to present a pauper's affidavit to the court. By letter dated June 15, 1964, also addressed to the clerk of the circuit court, and to which was attached the certificate of a notary that the letter was sworn to before him on that date and the certificate of the warden that the petitioner was then without funds and would earn no funds in the foreseeable future, the petitioner requested the clerk to forward to him by return mail a copy of the transcript and a copy of the indictment, judgment order and commitment order, and repeated his statement that he was a pauper within the meaning of Section 1, Article 2, Chapter 59, Code, 1931, and asked that the requested documents be sent him without cost. By letter dated July 1, 1964, the circuit clerk sent the petitioner the papers requested in his letter of June 15, except the transcript, and informed the petitioner that the court reporter had the evidence in her possession which would have to be transcribed, that she had been notified of the request of the petitioner, and that the court reporter would prepare the transcript for him for transmittal at a later date. No further correspondence occurred between the petitioner and the clerk of the circuit court, and no petition or affidavit was filed by any order entered by the circuit court.

Upon the petition filed in this proceeding on January 12, 1966, this Court awarded a writ returnable March 1, 1966 and appointed an attorney to represent the petitioner. Upon the return day of the writ the defendant produced the body of the petitioner as commanded by the writ and filed a demurrer and a return to the petition and this proceeding was heard and submitted for decision upon the petition and its exhibits, the demurrer and the return of the defendant and its exhibits, and the written briefs and the oral arguments in behalf of the respective parties.

The petitioner contends that the failure to supply him with a transcript of the evidence adduced upon the trial, without charge to him and within eight months of the date of the judgment sentencing him to imprisonment in the penitentiary, for which he made timely application for the purpose of an appeal, constituted a denial of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Article III, Sections 10 and 17, of the Constitution of this State, and that by reason of such denial the sentence of imprisonment is void and the petitioner is entitled to be released from his present confinement.

The defendant asserts that the petitioner is not entitled to the relief which he seeks for the stated reason that he has failed to satisfy the requirements of Section 7, Article 7, Chapter 51, Code, 1931, as amended, in that he failed to file a petition and an affidavit of his indigency with the court, failed to obtain a court order filing such petition and affidavit, and failed to make a written request for such transcript which sets forth the grounds upon which the appeal of the petitioner would be sought; and that because the petitioner failed to comply with the foregoing requirements of the statute he was not entitled to the requested transcript and the consequent failure to furnish it to him does not entitle him to the relief which he seeks in this proceeding.

The applicable statute, which has previously been considered by this Court, provides, to the extent here pertinent, that 'In any case wherein the court has appointed counsel for an indigent person under indictment for either a misdemeanor or felony and such indigent accused has been tried and found guilty under such indictment and desires to seek an appeal or writ of error from the court's judgment on such conviction, the court, upon written request of such convicted person's counsel setting forth the grounds upon which the appeal or writ of error will be sought, shall 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 appeal or writ of error, * * *.' See State ex rel. Legg v. Boles, 148 W.Va. 354, 135 S.E.2d 257; State ex rel. Banach v. Boles, 147 W.Va. 850, 131 S.E.2d 722; State v. Bosworth, 143 W.Va. 725, 105 S.E.2d 1; Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740.

In Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740, this Court, citing the leading case of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055, held in point 3 of the syllabus that 'The State, having by its Constitution and statutory law provided for the right of a defendant in a criminal proceeding to apply for a writ of error and supersedeas, cannot by legislative enactment favor one class of indigent defendants over any other class of indigent defendants in criminal proceedings.' In applying the statute this Court, in the opinion, used this language: 'the vice of the statute is that it favors one class of indigent persons in criminal proceedings, that is those for whom counsel has been appointed, over other indigent persons. Thus, in our opinion, the statute, if applicable only to indigent defendants in criminal cases for whom counsel has been appointed by the trial court, is violative of the constitutional guaranties of due process and equal protection provided for in the Constitution of the United States in the Fourteenth Amendment and the Constitution of West Virginia in Article III, Sections 10 and 17.'

Though the court in the Linger case regarded the statute as clear and free from ambiguity and for that reason not subject to interpretation, it applied it liberally to save its constitutionality by applying it to all indigent defendants and accomplished its plain purpose of protecting the constitutional and statutory rights of any indigent defendant under Article III, Section 6, of the Constitution of this State and Section 1(j), Article 5, Chapter 58, Code, 1931. Also in the Linger case this Court incorporated in the opinion this quotation from the opinion in the Griffin case: 'All of the States now provide some method of appeal from criminal convictions, recognizing the importance of appellate review to a correct adjudication of guilt or innocence. Statistics show that a substantial proportion of criminal convictions are reversed by state appellate courts. Thus to deny adequate review to the poor means that many of them may lose their life, liberty or property because of unjust convictions which appellate courts would set aside. * * *. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.'

The Federal...