Stanley JURGEVICH, Petitioner, v. DISTRICT COURT, ROUTT COUNTY, COLORADO; Honorable Joel S. Thompson, Judge, Respondent.
No. 95SA237.
Supreme Court of Colorado, En Banc.
Nov. 20, 1995.
808 P.2d 565
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Laurie A. Booras, Assistant Attorney General, Criminal Enforcement Section, Denver, for Respondent.
Chief Justice VOLLACK delivered the Opinion of the Court.
In this original proceeding, we directed the Routt County District Court to show cause for denying the petitioner, Stanley Jurgevich, use of a transcript from his earlier trial in order to prepare a pro se motion for postconviction relief pursuant to
I.
In 1989, Jurgevich was found guilty of first degree murder and sentenced to life in prison without the possibility of parole for forty years. His conviction was affirmed on direct appeal. People v. Jurgevich, No. 89CA0749 (Colo.App. Dec. 19, 1991) (not selected for publication), cert. denied, No. 92SC153 (June 22, 1992).
In late 1992, Jurgevich retained attorney Sally S. Townshend to investigate potential postconviction remedies. Ms. Townshend obtained the transcript of Jurgevich‘s trial for review, but ultimately did not file a postconviction motion. On June 12, 1995, Jurgevich filed a motion for loan of the record and transcript of his earlier trial. Jurgevich stated in his motion that the transcript was necessary for the purpose of preparing a
On June 19, 1995, the trial court denied Jurgevich‘s motion for loan of the trial record and transcript, stating that Jurgevich had not listed errors he sought to discover or support by reviewing the record. On June 21, 1995, Jurgevich filed a motion for the trial court to reconsider, alleging that he wished to claim ineffective assistance of counsel at trial and on appeal. He stated that trial counsel failed to present mitigating evidence and failed to raise the issue of his competency to proceed. Jurgevich also asserted that
II.
Jurgevich claims that the district court violated his constitutional rights of due process and equal protection by denying his motion for loan of the trial court record and transcript. The district court counters that it properly denied Jurgevich use of the trial transcript. We affirm the district court‘s denial of Jurgevich‘s motion because Jurgevich failed to assert an adequate basis for obtaining a free transcript.
In the context of direct appeal proceedings, the United States Supreme Court has held that “destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956). In direct appeals, therefore, the state must provide either a free transcript or other means of affording adequate and effective appellate review to indigent defendants. Id.; People v. Shearer, 181 Colo. 237, 242, 508 P.2d 1249, 1252 (1973).
A collateral attack, however, does not invoke the same rights as a direct appeal. See Wright v. West, 505 U.S. 277, 287-93, 112 S.Ct. 2482, 2487-91, 120 L.Ed.2d 225 (1992) (stating that different standards apply on direct and collateral review); see also Teague v. Lane, 489 U.S. 288, 305-10, 109 S.Ct. 1060, 1072-75, 103 L.Ed.2d 334 (1989) (treating retroactivity in collateral attack differently from retroactivity on direct appeal); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987) (holding that there is no constitutional right to counsel in collateral attack, despite such a right on direct appeal); People v. Duran, 757 P.2d 1096, 1097 (Colo.App.1988) (holding that there is no constitutional right to counsel in a
Here, Jurgevich is pursuing a collateral attack, not a direct appeal of his conviction. Moreover, Jurgevich is not appealing from the denial of a Rule 35(c) motion, but is attempting to prepare such a motion for filing. In order to prepare his Rule 35(c) motion, Jurgevich seeks to use the transcript to find errors. A defendant does not have a constitutional right to a free transcript to search for errors to raise in a collateral attack. Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir.1992); Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir.1975).
The issue, then, is the standard by which trial courts should grant a defendant‘s request for a free transcript to prepare a motion for collateral attack. Both this court and the United States Supreme Court have required defendants who seek free transcripts in collateral attacks to show the basis for obtaining such transcripts. We have held that in order to obtain a free transcript, a defendant must demonstrate that he may be entitled to relief under
Similarly, the United States Supreme Court held in United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976), that a free transcript for preparing a postconviction motion pursuant to
Here, the district court found that Jurgevich failed to demonstrate that he may be entitled to relief pursuant to
The determination whether a person is entitled to a free transcript for purposes of an appeal rests in the sound discretion of the trial court and is reviewable only for abuse of that discretion. People v. Nord, 767 P.2d 750, 751 (Colo.App.1988); Nikander v. District Court, 711 P.2d 1260, 1262 (Colo.1986). A trial court‘s discretionary refusal to grant an indigent defendant‘s request for free services will be upheld absent a showing that the services sought were necessary and would have been helpful to the defendant. Nord, 767 P.2d at 752. A reviewing court called upon to address a matter within the sound discretion of the trial court will not reverse the trial court‘s ruling unless it constitutes a clear abuse of discretion. People v. Thurman, 787 P.2d 646, 655 (Colo.1990). An abuse of discretion occurs when, upon review, an appellate court can say with fair assurance that, based on the circumstances confronting the trial court, the decision made was manifestly arbitrary, unreasonable, or unfair. People v. Baca, 852 P.2d 1302, 1308 (Colo.App.1992). In the current case, we cannot say that the district court abused its discretion by refusing to grant Jurgevich‘s motion for a free transcript because Jurgevich failed to set forth an adequate basis for obtaining the transcript.
The exception established in Sherbondy v. District Court, 170 Colo. 114, 459 P.2d 133 (1969), does not apply in this case. In Sherbondy, we excused the general requirements for obtaining a free transcript in a collateral attack because the defendant was challenging a thirty-two year old conviction obtained when he was only seventeen years old. Id. at 116, 459 P.2d at 133-34. We held that in the unique circumstances of that case, the defendant could not be expected to remember all that transpired thirty-two years previous in order to set forth the required basis for obtaining a free transcript. Id.
The current case is not similar to Sherbondy because Jurgevich‘s conviction is less than seven years old. Despite Jurgevich‘s claim that he has unique circumstances because his memory of the trial is distorted due to the medication he was taking, he has not shown that he was in fact medicated at the time of trial. The circumstances of this case do not rise to the level of extraordinary circumstances such as those in Sherbondy. Jurgevich therefore should not be excused from the requirements that other defendants must meet in order to qualify for a free transcript in collateral attacks.2
Because Jurgevich failed to show that he may be entitled to relief under
LOHR, J., dissents.
KOURLIS, J., does not participate.
Justice LOHR dissenting:
This is an original proceeding brought by Stanley Jurgevich, a prisoner of the State of Colorado. On July 24, 1995, Jurgevich submitted a Petition for Writ of Mandamus to direct the District Court of Routt County to grant him the use of a transcript from his earlier trial in order to prepare a
Upon consideration of the petition, we issued a rule directing the Routt County District Court to show cause why the relief requested by Jurgevich should not be granted.
The majority discharges the rule based on its conclusion that the district court did not abuse its discretion in denying Jurgevich‘s motion for a free transcript “because Jurgevich failed to show that he may be entitled to relief under
In 1989, Jurgevich was found guilty of first degree murder and sentenced to life in prison without the possibility of parole for forty years. His conviction was affirmed on direct appeal. In June of 1995, Jurgevich filed a pro se motion for loan of the trial record and existing transcript for thirty days so that he might conduct a supervised inspection of the material for the purpose of preparing a
Jurgevich filed a motion to reconsider. In this motion, he specifically stated that he wished to claim (1) ineffective assistance of counsel on trial and appeal, (2) failure of counsel to present mitigating evidence, and (3) failure of counsel to raise the issue of incompetency to proceed. He again alleged that at trial he “was heavily medicated and was mentally unstable, thus could not comprehend the proceedings and was, therefore, not competent to proceed.” In response to the court‘s earlier observation about the loan of the material to counsel, Jurgevich alleged that he never was able to speak to counsel after she had obtained the record and has not heard from her since. The district court denied the motion to reconsider by written order without further assignment of reasons.
In its opinion, the majority correctly states that a defendant must demonstrate that he may be entitled to relief under
In addition to the above, Jurgevich is only asking the court to loan him an existing transcript. He is not requesting that the court expend funds to prepare a new transcript; rather, he seeks only to have the existing transcript mailed to the correctional facility for his review under supervision for a limited period of thirty days. The minimal cost associated with Jurgevich‘s request should not override his need to obtain the trial record and transcript.
Since Jurgevich adequately demonstrated a need for the trial record and transcript, and these documents are in existence, I would hold the decision to deny the loan of these items to be manifestly arbitrary, unreasonable, and unfair, and to constitute an abuse of discretion by the district court. For the foregoing reasons, I respectfully dissent and would make the rule to show cause absolute.
Cletus E. BYRNE, Jr. and Sherman S. Saeger, Petitioners,
v.
TITLE BOARD and the Colorado Secretary of State, Respondents.
No. 95SA176.
Supreme Court of Colorado, En Banc.
Nov. 28, 1995.
As Modified on Denial of Rehearing Dec. 18, 1995.