State ex rel. M.S.B. v. LeMaster

• Decision Date: 02 March 1984
• Docket Number: No. 16123,16123
• Citation: 173 W.Va. 176,313 S.E.2d 453
• Parties: STATE ex rel. M.S.B. v. Robert LeMASTER.
• Court: West Virginia Supreme Court

Page 453

313 S.E.2d 453

173 W.Va. 176

STATE ex rel. M.S.B. v. Robert LeMASTER.

No. 16123.

Supreme Court of Appeals of

West Virginia.

March 2, 1984.

Syllabus by the Court

1. Where formal proceedings are instituted against a juvenile under W.Va.Code 49-5-1(c) [1982], the juvenile has an absolute right to counsel.

2. Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his right and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.

Arthur A. King, Public Defender Corporation for the 23rd and 31st Judicial Circuits, Martinsburg, for appellant.

Janet Frye Steele, Asst. Atty. Gen., Charleston, for appellee.

NEELY, Justice.

This is an original proceeding in mandamus. The petitioner is a juvenile who is charged with two counts of first degree murder. He will stand trial in Berkeley County, but is currently in the custody of the Department of Human Services and is being held in Princeton, West Virginia, three hundred miles from where he is to be tried. Petitioner alleges that this geographical removal from the place of trial makes it impossible for him to obtain effective assistance of counsel.

Petitioner is represented by a lawyer from the Public Defender Corporation which represents indigents in Berkeley County. This court is well aware that public defender offices have heavy case loads. We also take judicial notice of the fact that it is at minimum a six-hour drive from Berkeley County to Princeton and that reasonable air service is not available. Although the parties disagree concerning how many times counsel has been able to meet with petitioner, it would seem that there is little ground for disputing that the current arrangement is far from optimal. We are in accord with the Fourth Circuit's statement of the controlling principles regarding effective assistance of counsel for the indigent:

Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial. An omission or failure to abide by these requirements constitutes a denial of effective representation of counsel unless the state, on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby. [footnote omitted]

Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.1968).

Having said that, however, we are also aware that there is no easy solution to this problem. This court has a long-standing concern with the corrupting effects that result from holding juvenile and hardened adult offenders in the same penal facilities. In State ex rel. Harris v. Calendine, W.Va., 233 S.E.2d 318, 327 (1977), we stated: "It is generally recognized that the greatest colleges for crime are prisons and reform schools. The most egregious punishment inflicted upon a child incarcerated in a West Virginia penal institution is not the deprivation of his liberty but rather his forced association with reprehensible persons." Therefore, the alternative of placing the petitioner, who has not been convicted of any crime, in the adult jail in Berkeley County does not appear satisfactory. Juveniles, as well as adults, have an absolute right to effective assistance of counsel once formal proceedings are instituted, State ex rel. Kearns v. Fox, W.Va., 268 S.E.2d 65 (1980); ¹ but juveniles have an equally important right to be protected from unnecessary contact with debilitating influences. ²

In addition to the problem of weighing a juvenile's interest in obtaining the best possible assistance of counsel against that juvenile's interest in being incarcerated in a safe and humane facility, this case is problematic because it is unusual for a claim of ineffective assistance of counsel to arise before trial. As the Fourth Circuit noted in Coles, supra, the state can usually defeat a claim of ineffective assistance of counsel by demonstrating that there was no prejudice to the defendant. This same principle was recognized in West Virginia's jurisprudence in the case of State v. Thomas 157 W.Va. 640, 203 S.E.2d 445 (1974) where we stated: "If counsel's error, proven to have occurred, would not have changed the...