John Alford Turner v. State of North Carolina , 412 F.2d 486 ( 1969 )

BOREMAN, Circuit Judge:

John Alford Turner appeals from the denial of habeas corpus relief by the United States District Court for the Middle District of North Carolina.

In November 1956, in the Superior Court of Robeson County, North Carolina, Turner was tried by a jury for first degree murder, convicted of voluntary manslaughter and was sentenced to not less than four nor more than eight years in state prison to commence at the expiration of previous sentences then being served. He began serving the sentence now attacked in April of 1968.

At his trial in 1956 Turner was represented by court-appointed counsel. At the conclusion of trial, Turner’s counsel, at Turner’s request, gave oral notice to the court of desire to appeal. Thereafter, neither the court nor his appointed counsel took further action in connection with the requested appeal; consequently, the appeal was later dismissed for lack of prosecution.

In his habeas petition to the district court and to this court on appeal, Turner has asserted two general grounds for relief: the denial of his right to appellate review and his appearance in court attired in prison garb.

To support his claim of denial of right of appeal the petitioner asserts that his appointed counsel failed to insure the requested appellate review, failed to inform him of his right as an indigent to a free trial transcript, his right to the appointment of other appellate counsel or the steps to be taken without assistance of counsel to obtain appellate review. He complains also of the failure of the trial court to appoint counsel to assist him in prosecuting an appeal, and the unconstitutionality of a North Carolina statute¹ which provided that before an indigent defendant is entitled to a free transcript of the trial proceedings he must file with the court an affidavit that he is indigent, that he has been advised by counsel that he has reasonable cause for the appeal prayed, and that the application is in good faith. We hold that the petitioner was unconstitutionally denied his right to appellate review due to the inaction and neglect of both his appointed trial counsel and the trial court.

As previously noted, trial counsel, at Turner’s request, gave oral notice of appeal to the court, thus clearly and adequately making known his desire to appeal. The fact that petitioner’s request for an appeal was in oral rather than written form is of no consequence. Morris v. Peyton, 283 F.Supp. 63 (W.D.Va. 1968). Thereafter, with knowledge of petitioner’s desire to appeal and also his indigency (the court having previously appointed counsel for him) the trial court failed to instruct trial counsel to continue as counsel for purposes of appeal or to appoint other counsel to assist Turner in prosecuting his appeal. This dereliction resulted in the routine dismissal of the appeal for lack of prosecution.

Indigency and desire to appeal being known to the court, the failure to appoint counsel on appeal and provide a free trial transcript cannot be excused on the ground that no specific request for either was made by Turner. Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967).² In reversing Swenson’s conviction on the ground that the defendant had failed to receive “the assistance of appellate counsel in preparing and submitting a brief to the appellate court * * * ” the Supreme Court stated:

“ * * It is now settled ‘that wliere the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on request.’ Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70. When a defendant whose indigency and desire to appeal are manifest does not have the service of his trial counsel on appeal, it simply cannot be inferred from defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.” 386 U.S. 260, 87 S.Ct. 998.

This deprivation of Turner’s constitutional rights, however, is not solely attributable to the neglect of the trial court. After having given notice of appeal appointed trial counsel took no further action to see that it was effectuated, and gave petitioner no information concerning the procedure then necessary to insure appellate review (including the necessity of a transcript of the trial proceedings which could only be obtained without cost upon the filing of an affidavit of indigency, good faith and that his attorney had advised him there was reasonable ground for an appeal pursuant to the state statute). Trial counsel’s duty and obligation to further assist his client do not end upon conviction and sentence. At this point in the judicial process, when time is an important factor in obtaining appellate review, no one is in better position to insure the indigent defendant of the appeal which he has requested than counsel who has represented him at trial.

After desire to take an appeal is shown by an indigent defendant the very least which counsel must do is inform the defendant of his right to appeal without cost, Williams v. Coiner, 392 F.2d 210 (4 Cir. 1968); Magee v. Peyton, 343 F.2d 433 (4 Cir. 1965); Puckett v. State of North Carolina, 343 F.2d 452 (4 Cir. 1965); of the need for a transcript of the trial proceedings; and of the availability of this transcript without cost, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Puckett v. State of North Carolina, supra. If at this time appointed trial counsel decides that he cannot or will not continue to represent the defendant he must so inform the defendant, ef. Williams v. Coiner, supra,³ in addition to informing him of his right to appointment of other counsel, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and of the procedure through which the trial transcript and appeal may be obtained if assistance of counsel is not desired.

In the instant case the evidence is undisputed that Turner was not informed of his counsel’s intentions to proceed no further with the announced appeal nor was he given any advice or information pertinent to the prosecution of the appeal.

We therefore hold that through the inaction and neglect of both the trial court and appointed trial counsel, Turner was denied his right under the Sixth Amendment to the assistance of counsel on appeal which is guaranteed to indigent defendants through the Equal Protection Clause of the Fourteenth Amendment. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Having concluded that Turner was unconstitutionally deprived of appellate review of his conviction, we consider the appropriate remedy. Here, as in the cases of Pate v. Holman, 341 F.2d 764 (5 Cir. 1965), and Coffman v. Bomar, 220 F.Supp. 343 (M.D.Tenn.1963), appropriate relief of belated appellate review cannot be provided. In the instant case we are informed that the court reporter’s notes were long since destroyed and the trial itself occurred more than ten years ago, thereby rendering it virtually impossible to provide even a résumé of the proceedings in narrative form.

In the circumstances of this case we approve the nature and form of relief accorded the defendant in Coffman v. Bomar, supra, outlined by the court as follows:

“ * * *, the Court is of the opinion that the proper course to be taken by this Court is to award the petitioner the maximum relief that he could have obtained if his appeal had been properly perfected and he had been successful in prosecuting it. This can be accomplished by directing that the petitioner be accorded a new trial, if the state desires to retry him for the offense charged in the first count of the indictment, and otherwise that he be released from custody. Such a disposition will vindicate the petitioner’s constitutional rights and operate to correct the constitutional error committed against him. As pointed out in Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951), ‘[t]he District Court has power in a habeas corpus proceeding to “dispose of the matter as law and justice require.” 28 U.S.C. § 2243.’ ” 220 F.Supp. 343, at 349.

The relief provided in Coffman, supra, was approved and adopted in Pate v. Holman, supra, 341 F.2d 764 at 777.

The case will be remanded to the district court with direction to order that Turner be accorded a new trial if the state elects to retry him within a reasonable period of time as fixed by the court; otherwise to order his release from the custody of the State of North Carolina.

In view of our disposition of the case we find it unnecessary to reach the questions raised with respect to the constitutionality of N.C.Gen.Stat. § 15-181 and with respect to the appearance of petitioner in court attired in prison garb.

Reversed and remanded.

1 . N.C.Gen.Stat. § 15-181.

2 . The facts in Swenson are quite similar to those of the instant case in that after judgment was entered the defendant’s trial counsel filed notice of appeal and then withdrew. However, unlike the instant case, Swenson’s conviction was reviewed by a state appellate court on the merits and affirmed. This difference serves to add strength to the position of the petitioner in the instant case since he has had no opportunity for appellate review.

3 . We do not find that the requirements set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), for withdrawal from the case after trial and before appeal are applicable to one who has been appointed only as trial counsel.