Varney v. Superintendent, West Virginia Penitentiary, 14682

• Decision Date: 04 April 1980
• Docket Number: No. 14682,14682
• Citation: 264 S.E.2d 472,164 W.Va. 420
• Parties: Willie VARNEY, Jr. v. SUPERINTENDENT, WEST VIRGINIA PENITENTIARY.
• Court: West Virginia Supreme Court

Page 472

264 S.E.2d 472

164 W.Va. 420

Willie VARNEY, Jr. v. SUPERINTENDENT, WEST VIRGINIA PENITENTIARY.

No. 14682.

Supreme Court of Appeals of West Virginia.

April 4, 1980.

Syllabus by the Court

1. "An indigent criminal defendant has a right to appeal his conviction. He is also constitutionally entitled to a copy of the trial court record, including the transcript of the testimony, without cost to him. West Virginia Constitution, Article III, Sections 10 and 17." Point 1, Syllabus Rhodes v. Leverette, W.Va., 239 S.E.2d 136 (1977).

2. One who has been convicted of two crimes, one of which convictions has been declared void, will be relieved of punishment for such void conviction, but he must serve the term provided by statute for the valid conviction.

Eunice L. Green, Dunbar, for petitioner.

Chauncey H. Browning, Jr., Atty. Gen., Gray Silver, III, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Justice:

In this original proceeding in habeas corpus the petitioner, an indigent, alleging that the trial court failed to provide him a transcript of his trial which he needed for the prosecution of an appeal, seeks an unconditional release from imprisonment. In the circumstances hereinafter described the relief sought is denied.

In 1973 two separate indictments were returned against the petitioner, Willie Varney, Jr., each charging him with the offense of breaking and entering. On indictment No. 7072 he was tried and found guilty by a jury. Subsequently, he entered a plea of guilty to Indictment No. 7073 and was sentenced to a term of one to ten years in the state penitentiary. The latter conviction and sentence have never been challenged, by appeal or otherwise, and the petitioner is still incarcerated by reason thereof.

For the purpose of prosecuting an appeal, the petitioner attempted on several occasions to obtain a transcript of his trial. When the court ordered that the transcript be furnished, it was discovered that the court reporter's notes had been lost or destroyed and that by reason thereof no transcript was obtainable by the petitioner. This is conceded by all.

It is now well established that an indigent defendant who has been convicted of a crime has a right to appeal his conviction and that he is constitutionally entitled to a copy of the transcript of his trial without cost to him. Rhodes v. Leverette, W.Va., 239 S.E.2d 136 (1977); Call v. McKenzie, W.Va., 220 S.E.2d 665 (1975); State ex rel. Hamrick v. Coiner, 156 W.Va. 17, 189 S.E.2d 846 (1972); State ex rel. Kennedy v. Boles, 150 W.Va. 504, 147 S.E.2d 391 (1966); State ex rel. Legg v. Boles, 148 W.Va. 354, 135 S.E.2d 257 (1964); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

As demonstrated by the above decisions, the petitioner, having been denied a trial transcript and, as a consequence, an appeal from his conviction, is entitled to a discharge from custody "subject to the right of the State to provide a transcript." State ex rel. Johnson v. McKenzie, W.Va., 226 S.E.2d 721 (1976).

Here, however, no trial transcript can be supplied. Due to the great lapse of time since his conviction and the repeated refusal or failure of the state to furnish a transcript "there is a probability of actual injury (to the petitioner) as a result of such denial" of an appeal. Carter v. Bordenkircher, W.Va., 226 S.E.2d 711 (1976). Furthermore, these circumstances (repeated refusal by court during appeal period to furnish transcript and subsequent loss of reporter's notes from which trial transcript could be made) constitute...