SER Phillips v. Boggess
Annotate this Case
January 1992 Term
___________
No. 20914
___________
STATE OF WEST VIRGINIA
EX REL. FRANKIE ALLAN PHILLIPS, SR.,
Petitioner
v.
SHIRLEY BOGGESS, COURT REPORTER
FOR THE CIRCUIT COURT OF NICHOLAS COUNTY,
Respondent
___________________________________________________
Petition for Writ of Mandamus
WRIT GRANTED
___________________________________________________
Submitted: March 3, 1992
Filed: April 3, 1992
Frank W. Helvey, Jr.
Appellate Public Defender
West Virginia Public Defender Services
Charleston, West Virginia
Attorney for the Petitioner
Gregory A. Tucker
Prosecuting Attorney of Nicholas County
Summersville, West Virginia
Attorney for the Respondent
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
"Where a defendant enters a plea bargain arrangement
whereby he agrees not to appeal a conviction on a previous charge
to which he has never admitted guilt, but has been convicted by
jury verdict, the defendant should not be deemed to have
irrevocably waived his right to appeal. However, if the defendant
chooses to disregard the agreement and file a timely appeal, the
State should not be held to the bargain and, at its option, may
seek resentencing on all other convictions involved in the
agreement or reinstitute any charges dismissed pursuant to the plea
bargain and proceed to trial thereon." Syl. pt. 2, Blackburn v.
State, 170 W. Va. 96, 290 S.E.2d 22 (1982).
"The right to the equal protection of the laws
guaranteed by our federal and state constitutions blocks unequal
treatment of criminal defendants based on indigency." Syl. pt. 1,
Robertson v. Goldman, 179 W. Va. 453, 369 S.E.2d 888 (1988).
A request for a transcript by a criminal defendant is
not tantamount to an appeal. Therefore, an indigent defendant is
entitled to a transcript of his trial without endangering a prior
plea agreement wherein he agrees not to seek an appeal in exchange
for the agreement of the State to forego initiation of a recidivist
proceeding. If the defendant subsequently files a timely appeal,
the State should not be held to the plea agreement.
McHugh, Chief Justice:
In this original proceeding in mandamus, the petitioner,
Frankie Allan Phillips, Sr., seeks to compel the respondent,
Shirley Boggess, court reporter for the Circuit Court of Nicholas
County, to produce a transcript of his trial held in the Circuit
Court of Nicholas County. This matter comes on for a decision upon
petitioner's petition for a writ of mandamus, the response of the
respondent, petitioner's reply to the response, and all other
matters of record.
On April 30, 1991, petitioner was convicted of second
degree murder and malicious wounding with a firearm by a jury
verdict in the Circuit Court of Nicholas County. Shortly
thereafter, the State filed a recidivist information with the trial
court. The information noted that the petitioner had been
convicted of felonies on three prior occasions, and sought a
sentence of life imprisonment of petitioner pursuant to W. Va.
Code, 61-11-18 [1943]. The trial court appointed separate
attorneys to represent petitioner in the prosecution of his appeal
and to defend against the recidivist information. Neither counsel
represented petitioner at trial. The petitioner, pro se, his trial
counsel, and appellate counsel all requested that a transcript of
the April, 1991 trial be produced. Petitioner is indigent.
On August 27, 1991, after the trial transcript had been
requested on three separate occasions, petitioner entered into a
plea agreement with the State. The plea agreement consisted of the
State's agreement to forego recidivist proceedings against the
petitioner in return for petitioner's agreement to forego his
appeal rights to the underlying felony trial. Petitioner also
agreed to testify against several co-defendants and give a
statement to police officers. The State agreed not to oppose
petitioner's motion for his sentencing to run concurrent with
convictions for which he was already incarcerated, and with any
federal sentence he may receive for past firearms crimes.
Petitioner was represented by appointed counsel for the recidivist
proceedings in the plea negotiations and agreement. Petitioner's
appellate counsel did not participate.
Subsequent to the plea agreement, petitioner's appellate
counsel again sought a copy of the transcript from the respondent.
In response, the assistant prosecutor for Nicholas County advised
appellate counsel that a request for the transcript was tantamount
to revocation of the plea agreement, and if the transcript was
requested, he would seek to have petitioner returned to Nicholas
County as expeditiously as possible to stand trial on the
recidivist charge.
A status conference was held before the Circuit Court of
Nicholas County on October 7, 1991. The trial court agreed with
the State and stated that the plea agreement must be set aside and
an appeal sought before petitioner was entitled to the transcript.
Petitioner had argued that the decision to enter into a plea
agreement is not irrevocable, and that the transcript must be made
available so that appellate counsel may assess his ability to
successfully prosecute an appeal regardless of the plea agreement.
Furthermore, petitioner argued that the plea agreement would be
revoked only upon the filing of an appeal, not upon a request for
the transcript.
In Blackburn v. State, 170 W. Va. 96, 290 S.E.2d 22
(1982), we held in syllabus point 2:
Where a defendant enters a plea bargain
arrangement whereby he agrees not to appeal a
conviction on a previous charge to which he
has never admitted guilt, but has been
convicted by jury verdict, the defendant
should not be deemed to have irrevocably
waived his right to appeal. However, if the
defendant chooses to disregard the agreement
and file a timely appeal, the State should not
be held to the bargain and, at its option, may
seek resentencing on all other convictions
involved in the agreement or reinstitute any
charges dismissed pursuant to the plea bargain
and proceed to trial thereon.
Appellant did enter into a plea bargain agreement and
agreed not to appeal his conviction on a previous charge. In the
underlying felony trial, petitioner did not admit guilt. He was
convicted by a jury verdict. Therefore, under Blackburn v. State,
supra, the State may renege on the plea agreement, "if the
defendant chooses to disregard the agreement and file a timely
appeal."
In this case it is clear that petitioner is entitled to
a transcript of his trial. By virtue of Blackburn, supra, the
petitioner cannot be said to have irrevocably waived his appeal
rights despite his agreement not to appeal. Respondent and the
State do not contest petitioner's right to appeal, nor do they
contest his right to a transcript of the trial. The real issue is
whether the State may rescind the plea arrangement and file the
recidivist charge against petitioner upon his request for the
transcript, or whether the State may rescind the plea arrangement
and file the recidivist charge only if the petitioner chooses to
file a timely appeal.
As petitioner notes, permitting the State to rescind the
plea arrangement upon the mere request for a transcript by
petitioner would effectively allow the unequal treatment of
indigent defendants as opposed to a defendant who could afford the
cost of transcript production. Were petitioner not indigent, he
would have access to his trial transcript and the plea arrangement
would be unaffected. However, because he is indigent, petitioner
is being denied access to his transcript under the threat of
rescission of the plea arrangement. Syllabus point 1 of Robertson
v. Goldman, 179 W. Va. 453, 369 S.E.2d 888 (1988) states: "The
right to the equal protection of the laws guaranteed by our federal
and state constitutions blocks unequal treatment of criminal
defendants based on indigency." This is clearly a case of unequal
treatment of a criminal defendant based on indigency.
A criminal defendant cannot irrevocably waive his appeal
rights to a conviction of a crime to which he has never admitted
guilt. Such a defendant may exercise his right to appeal before
the expiration of the appeal period, regardless of any plea
arrangement by which he agrees to forego his right to appeal.
Under such an arrangement, the State may renege on its part of the
plea arrangement if and only if the defendant actually files an
appeal. A request for a transcript by a criminal defendant is not
tantamount to an appeal. Therefore, an indigent defendant is
entitled to a transcript of his trial without endangering a prior
plea agreement wherein he agrees not to seek an appeal in exchange
for the agreement of the State to forego initiation of a recidivist
proceeding. If the defendant subsequently files a timely appeal,
the State should not be held to the plea agreement. A contrary
ruling would permit the unequal treatment of criminal defendants
based on indigency.
A writ of mandamus shall issue directing the court
reporter for the Circuit Court of Nicholas County to produce a
transcript of proceeding No. 90-F-45 for the petitioner within
thirty days of this opinion. If, in the course of events, the
petitioner chooses to file a timely appeal, the State will not be
held to the plea agreement and may exercise its option to reinstate
the recidivist charge.
Writ granted.
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