State v. Eden

• Decision Date: 10 July 1979
• Docket Number: No. 13837,13837
• Citation: 256 S.E.2d 868,163 W.Va. 370
• Parties: STATE of West Virginia v. Jeffrey EDEN.
• Court: West Virginia Supreme Court

Page 868

256 S.E.2d 868

163 W.Va. 370

STATE of West Virginia v. Jeffrey EDEN.

No. 13837.

Supreme Court of Appeals of West Virginia.

July 10, 1979.

Syllabus by the Court

1. A defendant in a misdemeanor case has a fundamental right to be present during all critical stages of his trial. W.Va.Const. art. 3, § 14.

2. A defendant who is convicted of an offense in a trial before a justice of the peace and exercises his statutory right to obtain a trial De novo in the circuit court is denied due process when, upon conviction at his second trial, the sentencing judge imposes a heavier penalty than the original sentence. W.Va.Const. art. 3, § 10.

3. A warrant charging, under W.Va.Code § 17C-5-3 (1951) that the petitioner's conduct was in wanton and willful disregard of the safety of persons or property without specifically naming the persons or property involved was sufficient to fully inform the petitioner of the reckless driving charge against him.

Robert N. Bland, Charleston, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Stephen D. Herndon, Asst. Atty. Gen., Charleston, for defendant in error.

McGRAW, Justice:

Jeffrey Eden appeals from a final order of the Circuit Court of Jackson County wherein he was sentenced to jail for a period of thirty days and fined two hundred dollars upon his conviction for reckless driving. We reverse the conviction and remand for a new trial.

Petitioner was originally arrested upon a warrant issued by a justice of the peace of Jackson County charging

That Jack L. Eden on the 27th day of October, 1975, in said Jackson County, did unlawfully drive a motor vehicle upon a public highway and School Grounds of Ripley High School, in willful and wanton disregard for the safety of persons and property by then and there to-wit: weaving, spinning wheels, speeding, against the peace and dignity of the State.

A trial was held in the justice of the peace court, and petitioner was found guilty of a misdemeanor and fined fifty dollars, together with costs of ten dollars. Petitioner applied for a trial De novo in the Circuit Court of Jackson County. After some delay ¹ petitioner was tried in his absence before a petit jury on July 13, 1976, ² and the jury returned a verdict of guilty as charged in the warrant. On July 15, 1976, with petitioner present, the court sentenced him to the Jackson County jail for thirty days and fined him two hundred dollars plus costs.

In seeking reversal of the final judgment of the circuit court, petitioner assigns as error: (1) the failure to direct the verdict upon the insufficiency of the warrant; (2) the failure to direct the verdict upon the insufficiency of the evidence to support the warrant; (3) the increased sentence imposed as contrary to the law and the evidence and in violation of the due process law of the Constitutions of the United States and West Virginia; (4) the failure to grant a new trial when counsel had not informed appellant of the trial date; and (5) the neglect of counsel in preparing the case.

I.

Since petitioner wanted to be present at his trial, he approaches his absence at trial as being proof that his counsel was neglectful of his interests. We prefer to view this issue from the standpoint of a defendant's Right, if any, to be present at his trial for a misdemeanor.

Petitioner concedes that under present law it is possible for a defendant to appear by counsel in misdemeanor cases in West Virginia and not be personally present. ³ Syl. pt. 4, State v. Campbell, 42 W.Va. 246, 24 S.E. 875 (1896); W.Va.Code §§ 62-2-19, 62-2-21 (1923). We acknowledge the existence of this long established rule, yet fail to see the distinction between misdemeanor cases, particularly those punishable by imprisonment, and felony cases in which the defendant has both a constitutional and statutory right to be present in person at all critical stages of his trial.

The constitutional right to be present arises from and is implicit in the fundamental right to confront one's accusers as guaranteed by the Sixth Amendment of the United States Constitution and art. 3, § 14 of the West Virginia Constitution. State v. Boyd, W.Va., 233 S.E.2d 710 (1977); syl. pt. 2, State ex rel. Grob v. Blair, W.Va., 214 S.E.2d 330 (1975). ⁴

Comparatively, the statutory right of an accused charged with a felony to be present at every stage of a criminal trial when anything is done to affect him emanates from a common law right which antedated our Constitution. As analyzed in Blair, supra at 334:

In English history, a prisoner in a felony trial had no right to the advice and assistance of counsel. The accused was required to defend himself and it was held that he must be present in court when any step was taken in his case regardless of how insignificant it was. Comment, 65 W.Va.L.Rev., at 51 (1962).

This old English rule was adopted early in the Commonwealth of Virginia, the right of presence being secured by statute in Virginia since 1849. Blair, supra; State v. Vance, 146 W.Va. 925, 124 S.E.2d 252 (1962), Overruled on other grounds, State ex rel. Grob v. Blair, 214 S.E.2d 330, 337 (1975). Unchanged, it now appears in W.Va.Code § 62-3-2 (1923): "A person indicted for a felony shall be personally present during the trial therefor." This provision reiterates the due process rights granted by our constitution but the statute is not exclusive in application.

It seems basic to us that this right of presence afforded a person accused of a felony applies as well to a person accused of a misdemeanor. The same liberty and property interests are at stake; due process dictates that he be given the same rights. Indeed, W.Va.Const. art. 3, § 14 states:

Trials of crimes, And misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. In All such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defence; and there shall be awarded to him compulsory process for obtaining witnesses in his favor. (emphasis added).

This Court has held that the above section gives to a defendant in a misdemeanor prosecution the right to assistance of counsel, i. e., the court must inform the defendant of his right to counsel, retained or appointed, and the failure to do so, absent a showing that he made a knowing and intelligent waiver, will void the conviction. ^{5 5} This Court has similarly recognized the misdemeanor defendant's fundamental right to remain silent under both the Federal and State Constitutions. ⁶ If one accused of a misdemeanor has these "fundamental" rights, why does he not likewise have the right to be present at his own trial? We can discern no reason why he does not. Denial of the right to be present at trial absent a waiver of the right is in effect a denial of the right to confront adverse witnesses. Consequently we hold that the defendant in a misdemeanor case has a fundamental right to be present during all critical stages of his trial.

Of course, none of these rights are absolute requirements. A defendant may at any time knowingly and intelligently waive the right to counsel, the right to remain silent, the right to be present at trial and even the right to a trial (by pleading guilty). State ex rel. Grob v. Blair, supra. But waiver of a constitutional right is not to be lightly regarded, and if such a waiver is to be implied at all, it can only be in situations in which it is clear that the accused has not only a full knowledge of all facts and of his rights, but a full appreciation of the effects of his voluntary relinquishment. Holland v. Boles, 225 F.Supp. 863 (N.D.W.Va.1963). This Court has held that courts indulge every reasonable presumption against waiver of a constitutional right and will not presume acquiescence in the loss of such fundamental right. State ex rel. Calloway v. Boles, 149 W.Va. 297, 140 S.E.2d 624 (1965); syl. pt. 2, State ex rel. May v. Boles, 149 W.Va. 155, 139 S.E.2d 177 (1964). An accused may, by declaration and conduct, waive a fundamental right protected by the Constitution, but it must be demonstrated that the waiver was made knowingly and intelligently. State ex rel. Grob v. Blair, supra.

The record here discloses no evidence that indicates the petitioner's knowing and intelligent waiver of his right to be present at trial. Indeed, the evidence tends to show his desire to be present. His absence was not predicated on a voluntary relinquishment of his rights but on a misconception or lack of information as to the date of his trial. Under these circumstances, the circuit court erred in trying the case in the defendant's absence.

As to petitioner's contention that his counsel was negligent in not having interviewed a material defense witness before trial, we note that the record reveals that defense counsel's motion to continue just prior to trial was based in part on his inability to speak with the witness. In view of this action by defense counsel and the absence of other evidence, we cannot say he was negligent in his preparation of the case.

II.

Petitioner contends that the action of the circuit court in imposing a harsher sentence than he received in justice court was a violation of due process. He bases this contention upon the holding in several federal cases including North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) and Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967) Cert. denied 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968). We find petitioner's argument meritorious and we vacate the circuit court's sentence.

In both Patton and Pearce, the petitioners had been successful in challenging...