State v. Bush, 14005

Decision Date05 June 1979
Docket NumberNo. 14005,14005
Citation163 W.Va. 168,255 S.E.2d 539
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Phillip BUSH.

Syllabus by the Court

1. The denial of a motion for a continuance constitutes a denial of the right to effective assistance of counsel as guaranteed by Art. 3, § 14 of the West Virginia Constitution, where an attorney is directed by a trial court to represent a defendant in a criminal case and is permitted only a weekend to prepare for the trial.

2. A motion for continuance is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless there is a showing that there has been an abuse of discretion.

3. Whether there has been an abuse of discretion in denying a continuance must be decided on a case-by-case basis in light of the factual circumstances presented, particularly the reasons for the continuance that were presented to the trial court at the time the request was denied.

4. The factors relevant in assessing claims of inadequate time to prepare for trial are: the time available for preparation, the likelihood of prejudice from the denial, the accused's role in shortening the effective preparation time, the degree of complexity of the case, the availability of discovery from the prosecution, the adequacy of the defense provided at trial, the skill and experience of the attorney, any pre-appointment or pre-retention experience of the attorney with the accused for the alleged crime, any representation of the defendant by other attorneys that accrues to his benefit, whether the plea for more time to prepare for trial is made in good faith, the public interest in a speedy trial of the case, and the time the defendant has been in prison awaiting trial.

Franklin D. Cleckley, Morgantown, W. Va., for defendant.

Chauncey H. Browning, Atty. Gen., Joseph C. Cometti, Asst. Atty. Gen., Charleston, W. Va., for plaintiff.

McGRAW, Justice:

Phillip Bush appeals from his felony conviction for forcible rape, See, W.Va.Code § 61-2-15 (1965). 1 His primary claim is that the trial court committed error in denying defense counsels' motion for continuance, thereby denying him effective assistance of counsel as guaranteed by the Constitutions of West Virginia and the United States.

We find the trial court abused its discretion in refusing to grant a continuance, and we reverse the conviction.

The significant pre-trial events which give rise to this assignment of error are as follows: On February 12, 1975, the defendant was arrested and charged by warrant with forcible rape. A preliminary hearing was held on February 18, 1975, and the defendant was bound over to the March term of the Marion County Grand Jury. On March 10, 1975, a true bill was returned. A trial date was set for April 28, 1975, but the record does not reveal when this trial date was set or whether the defendant was ever formally arraigned prior to the day of trial. Prior to trial, the defendant remained lodged in the Marion County jail.

Based on the undisputed facts as set forth in the defendant's motion for a continuance, and affidavits filed thereafter in conjunction with motions to set aside the verdict and award a new trial, the salient facts surrounding the defendant's acquisition of counsel and the facts and circumstances surrounding the trial court's denial of a continuance may be examined.

Shortly after the defendant was arrested he contacted a local attorney, Mr. Brent Beveridge, seeking his assistance in obtaining bond. Despite counsel's efforts, the court refused to set bond. Thereafter, Beveridge represented the defendant in the February 18, 1975 preliminary hearing upon the request of a second attorney, Mr. Franklin D. Cleckley, and contacted a court reporter to attend and record the hearing. Neither Mr. Beveridge nor the court reporter received any compensation for his services at the preliminary hearing. Mr. Beveridge also appeared in chambers in late February concerning bond but bond was again denied.

Mr. Beveridge met with the defendant in the Marion County jail on at least two occasions, primarily for the purpose of discussing the possibility of petitioning this Court for bond. Thereafter, he spoke with the defendant and his wife concerning the necessity of making financial arrangements to cover his past and future services, along with the court reporter's fee. Discussions were also had concerning the employment of either Mr. Cleckley or Mr. Beveridge, or both, but no agreement was reached.

After the first week in March, Mr. Beveridge said he had little if any contact with the defendant, and did not discuss the merits of the case, file written motions or discuss any plea bargaining arrangements with the prosecutor's office. Furthermore, he did not attend the hearing at which the trial docket was set, T.R.C. III, and never made any representation to the court indicating he represented the defendant. Mr. Cleckley's pre-trial involvement in the case was even more limited.

By letter dated April 18, 1975, the prosecuting attorney advised Mr. Cleckley of the trial date. Mr. Cleckley informed the prosecuting attorney by letter that he had not been retained to represent the defendant and he requested that the circuit court bring the defendant before the court so that the counsel issue might be resolved properly.

On Friday, April 25, 1975, while Mr. Cleckley was attending an unrelated hearing, the court called the defendant to inquire respecting his employment of counsel. The defendant expressed a desire to retain Mr. Cleckley as counsel and indicated that he would advise the court by the following Monday whether he could raise the necessary funds. The court agreed to this procedure, and continued the case to the next term of court. About an hour later, however, the court gave Mr. Cleckley a hand-written note which said that the trial would be held on Monday, April 28, 1975. The note indicated the judge engaged in an Ex parte conversation with the prosecuting attorney and concluded that Mr. Beveridge had represented the defendant following his arrest, and that the case would go to trial with Mr. Beveridge as counsel.

Mr. Cleckley and Mr. Beveridge, avoiding the wrath of the court, represented the defendant at trial but neither was appointed to represent the defendant and neither has ever been compensated for his legal services.

On the morning of the trial, the defense attorneys moved for a continuance on the ground that counsel had not had ample time to prepare an adequate defense. In addition to the facts previously set forth, they alleged in support of the motion that neither attorney had been retained by the defendant nor had either of them done anything in preparation for trial. More specifically, counsel had not: (1) picked up a copy of the indictment; (2) prepared pre-trial motions; (3) interviewed the defendant or any other witnesses in preparation for trial; (4) prepared Voir dire examination, opening statements, a case strategy, instructions or any other matters or motions necessary for the defense of the case; and, (5) neither counsel had requested a transcript of the preliminary hearing nor was one available.

In conclusion, counsel alleged that neither the court nor the prosecuting attorney had offered a reason why the case could not be tried at a later time that would afford counsel a fair and adequate opportunity to prepare a defense consistent with the mandate of West Virginia Const. Art. III, § 14; and that to proceed to trial under the circumstances constituted trial by ambush and was contrary to established notions of decency and fair play. The trial court summarily denied the motion, impaneled the jury, and proceeded with the trial of the case.


There is only one decision in this jurisdiction in which this Court considered the issue raised in this appeal. In State ex rel. West Virginia-Pittsburgh Coal Co. v. Eno, 135 W.Va. 473, 63 S.E.2d 845 (1951), a sharply divided court reversed the conviction of the three members of the United Mine Workers of America who were convicted of criminal contempt for the violation of an injunction decree.

Briefly, the facts there were that a rule in contempt was issued by the trial court, returnable on January 20, 1950. Two of the union members were served on January 18th and the other was served on January 19th. Because the attorney who represented them in the initial injunction proceeding was not available for consultation until approximately twelve noon on the 19th of January, counsel requested a continuance in order to prepare an answer, determine a defense and prepare for cross-examination. Despite the trial court's offers of brief recesses to enable the defendant to prepare an answer and prepare a defense, counsel politely refused, consistently asserting his inability to defend without additional time. He did not cross-examine any of the State's witnesses or offer any testimony on behalf of the defense.

In syl. pt. 2 in Eno the Court held "(t)he right guaranteed by the State and Federal Constitutions to a person charged with a criminal violation to have effective assistance of counsel, cannot be abrogated by denying counsel, if timely employed, sufficient time to adequately prepare for trial."

The Eno court did not base its ruling on the nature of the representation afforded defendant at trial; that is, it did not analyze the record to determine how or if the defendants were prejudiced or how their case would have been better prepared had the continuance been granted. The holding rests solely on the inadequate preparation time afforded defense counsel. "The right of a defendant in a criminal case to be represented by counsel includes the right to effective assistance of counsel, and the refusal to allow counsel sufficient time to prepare for trial is a denial of that right." (citations omitted). Id. at 482, 63 S.E.2d at 850. The dissenters were unwilling to conclude, as a matter...

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