STATE оf West Virginia ex rel. J.B. REES, Petitioner, v. The Honorable John W. HATCHER, Jr., Judge of the Circuit Court of Fayette County, Respondent.
No. 31555
Supreme Court of Appeals of West Virginia
Decided Dec. 4, 2003.
Submitted Nov. 18, 2003.
591 S.E.2d 304
Nor are we persuaded that the Court of Appeals’ consideration of the appellate briefs filed on behalf оf petitioner‘s codefendants alters this conclusion. One party‘s right to representation on appeal is not satisfied by simply relying on representation provided to another party. To the contrary, “[t]he right to counsel guaranteed by the Constitution contemplates the services of an attorney devoted solely to the interests of his client. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 [(1942)].” Von Moltke v. Gillies, 332 U.S. 708, 725, 68 S.Ct. 316, 324, 92 L.Ed. 309 (1948) (plurality opinion). A criminal appellant is entitled to a single-minded advocacy for which the merе possibility of a coincidence of interest with a represented codefendant is an inadequate proxy.
Penson, 488 U.S. at 86-87, 109 S.Ct. at 353 (internal citation to record and footnote omitted).
The decisions in Penson and McGraw stand for the proposition that, absent a valid waiver by a defendant, only the counsel of record for a defendant on a charge may represent the defendant during critical stages of a prosecution. Under Penson and McGraw, prejudice is presumed when a defendant‘s counsel rеlinquishes any part of the representation of the defendant to an attorney who is not on record as counsel for the defendant.
Penson and McGraw should have controlled the outcome of the instant case. The record is devoid of any evidence of a valid waiver by the juvenile of his right to have appointed counsel conduct his defense. See State v. Sugg, 193 W.Va. 388, 397, 456 S.E.2d 469, 478 (1995) (“Thus, when a constitutional right is at stake, its waiver must be knowing, intelligent, and voluntary.“). Absent such a waiver, the juvenile‘s counsеl could not agree to let counsel for the juvenile‘s parents have an active role in the defense. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 835, 83 L.Ed.2d 821, 828 (1985) (“[An effective attorney] must play the role of an active advocate, rather than a mere friend of the court.“). By doing so, the juvenile‘s constitutional right to counsel during every critical stage of the prosecution was constructively denied.4 Consequently, the issue of prejudice was irrelevant. See Perry v. Leeke, 488 U.S. 272, 280, 109 S.Ct. 594, 600, 102 L.Ed.2d 624, 633 (1989) (actual or constructive denial of the assistance of counsel is not subject to рrejudice analysis); Herring v. New York, 422 U.S. 853, 864, 95 S.Ct. 2550, 2556, 45 L.Ed.2d 593, 601-02 (1975) (presumption of prejudice where defense counsel denied right to give closing argument); Mitchell v. State, 989 S.W.2d 747, 748 (Tex.Crim.App.1999) (En banc) (“In these circumstances no affirmative proof of prejudice is required because prejudice is irrefutably presumed.“).
In view of the foregoing, I dissent.
John M. Hedges, Esq., Byrne & Hedges, Morgantown, for Respondent.
PER CURIAM.
The petitioner J.B. Rees seeks a writ of prohibition to prohibit the Honorable Judge John W. HATCHER of the Circuit Court of Fayette County from enforсing an order assessing the costs of the jury panel against the petitioner personally.
I.
The petitioner, J.B. Rees, serves as the Chief Public Defender of the Public Defender Corporation for the Twelfth Judicial Circuit. Judge Hatcher appointed the petitioner to represent a criminal defendant accused of two felonies and two misdemeanors. The circuit court set the defendant‘s case for trial on June 25, 2003.
On the morning of June 25, 2003, as prospeсtive jurors arrived in the courtroom, Judge Hatcher heard pretrial matters in an anteroom. Judge Hatcher asked the criminal defendant whether he was satisfied with his counsel, the petitioner. The defendant responded that he was not satisfied with the petitioner because the defendant felt that the petitioner had not spent enough time working on the defendant‘s case. The defendant felt that more time was needed to prepare becausе the petitioner had declined to interview at least one prospective witness that the defendant wanted the petitioner to interview.
Noting that for the second time in as many days that an indigent criminal defendant had comрlained about the adequacy of representation provided by the public defender‘s office, Judge Hatcher continued the defendant‘s trial sua sponte without seeking any additional information from the petitioner, and assessed the costs of the jury panel against the petitioner personally in the amount of $1,383.31.
The judge entered an order on the same day continuing the defendant‘s case and assessing jury costs to the petitioner. Judge Hatcher found that “to fоrce the Defendant to trial upon an indictment charging two felonies and two misdemeanors, under the aforementioned circumstances, would be improper and a denial of the Defendant‘s right to have the effective аssistance of competent counsel.”
The petitioner then filed a motion for reconsideration1 on June 27, 2003, with the circuit court, asking that the proceedings be stayed, and that the circuit court grant the petitioner an evidentiary hearing.
On June 30, 2003, Judge Hatcher, without affording the petitionеr a hearing, denied the petitioner‘s motion for reconsideration, but granted the petitioner a stay of the order to allow the petitioner an opportunity to seek a writ of prohibition from this Court.
II.
“In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prеjudiced in a way that is not correctable on appeal; (3) whether the lower tribunal‘s order is clearly erroneous as a matter of law; (4) whether the lower tribunal‘s order is an oft repeated error or manifests persistеnt disregard for either procedural or substantive law; and (5) whether the lower tribunal‘s order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Circuit courts have the inherent power to do all things necessary for the administration of justice within the scope of their jurisdiction. Daily Gazette Company, Inc. v. Canady, 175 W.Va. 249, 251, 332 S.E.2d 262, 264 (1985). In Syllabus Point 3 of Shields v. Romine, 122 W.Va. 639, 13 S.E.2d 16 (1940), this Court held that: “[a] court ‘has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.’ 14 Am. Jur., Courts, section 171.”
Included within the circuit court‘s inherent power is the power to sanction. “[A] trial court has inherent power to impose sanctions as a part of its obligation to conduct a fair and orderly trial.” Prager v. Meckling, 172 W.Va. 785, 789, 310 S.E.2d 852, 856 (1983) (upholding the circuit court‘s right to sanction a party for failing to supplement its discovery responses).
However, the circuit court‘s inherent power to sanction is leavened by the equitаble principles of due process. “[B]efore issuing a sanction, a court must ensure it has an adequate foundation either pursuant to the rules or by virtue of its inherent powers to exercise its authority. The Due Process Clause оf
“In formulating the appropriate sanction, a court shall be guided by equitable principles. Initially, the court must identify the allegеd wrongful conduct and determine if it warrants a sanction. The court must explain its reasons clearly on the record if it decides a sanction is appropriate. To determine what will constitute an appropriate sanction, the court may consider the seriousness of the conduct, the impact the conduct had in the case and in the administration of justice, any mitigating circumstances, and whether the conduct was an isolated occurrence or was a pattern of wrongdoing throughout the case.” Syllabus Point 2, Bartles v. Hinkle, 196 W.Va. 381, 472 S.E.2d 827 (1996).2
Previously, we have observed that “[i]n failing to accord Appellant‘s counsel an opportunity to respond to the lower court‘s basis for assessing fees and costs, the most basic of all protections inherent to our judicial system ha[ve] been violated.” Czaja v.
The petitioner argues that Judge Hatcher sanctioned the petitioner without providing the petitioner with an opportunity to explain his actions. The record below shows that Judge Hatcher failed to provide the petitioner with an opportunity to respond to the assessment of sanctions.3
This Court recognizes and applauds Judge Hatcher‘s right and desire to run an efficient courtroom. We also applaud Judge Hatcher‘s efforts to protect the rights of criminal defendants. However, in Judge Hatcher‘s zеal to protect the rights of a criminal defendant, he failed to provide the petitioner with an opportunity to explain his actions. We further find that the sanction of assessing jury costs against the petitioner in the instant casе is inappropriate.4
III.
Therefore, we grant the petitioner‘s writ and prohibit the assessment of jury costs against the petitioner.
Writ Granted.
Justice DAVIS dissents and reserves the right to file a dissenting opinion.
DAVIS, J., dissenting.
The majority has concluded that Judge Hatсher acted improperly when he sanctioned the petitioner without providing an opportunity to be heard and by assessing jury costs against the petitioner. I respectfully dissent from the majority opinion. We have recognized that “[t]rial courts have the inherent power to manage their judicial affairs that arise during proceedings in their courts, which includes the right to manage their trial docket[,]” Syl. pt. 2, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W.Va. 463, 475 S.E.2d 555 (1996), and that “[w]e review any trial court‘s decision in its managemеnt of a trial for an abuse of discretion.” State v. Snider, 196 W.Va. 513, 516 n. 9, 474 S.E.2d 180, 183 n. 9 (1996) (per curiam). Here, Mr. Rees never articulated to Judge Hatcher what information a hearing would produce that could show Judge Hatcher‘s sanction to be wrong. Thus, I cannot conсlude that Judge Hatcher‘s rulings in this case rise even to the level of a simple abuse of discretion, much less the higher threshold required to issue a writ of prohibition. See, e.g., Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not issue to prevent a simple abuse of disсretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers.