Darrell V. McGraw, Jr. Joseph
Attorney General Wheeling, West Virginia
Silas B. Taylor Attorney for the Appellant
Senior Deputy Attorney General
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE ALBRIGHT delivered the Opinion of the Court.
CHIEF JUSTICE DAVIS and JUSTICE MAYNARD dissent and reserve the right to file dissenting opinions.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
1. The failure of the State to provide a transcript
of a criminal proceeding for the purpose of appeal, absent extraordinary dereliction
on the part of the State, will not result in the release of the defendant;
however, the defendant will have the option of appealing on the basis of a
reconstructed record or of receiving a new trial. Syl. Pt. 2, State
ex rel. Kisner v. Fox, 165 W.Va. 123, 267 S.E.2d 451 (1980).
2. When an electronic record of a magistrate court
jury trial in a criminal case is so defective that no record or virtually
no record is available from which to prepare an appeal or to conduct appellate
review, the criminal defendant is entitled to obtain meaningful review of
the magistrate court proceedings by informing the circuit court of the faulty
record and reconstructing the record or, if reconstruction is impossible,
receiving a new trial by jury in magistrate court.
Chester Chanze (hereinafter Appellant)
appeals from the December 20, 2000, final order of the Circuit Court of Marshall
County which, following a bench trial on appeal, upheld Appellant's magistrate
court conviction of the offense of petit larceny. Appellant contends that
the circuit court erred in the appeal of his magistrate court conviction by
denying his request for a de novo jury trial despite the fact that, due to
an equipment malfunction, there was no electronic record of his magistrate
court jury trial for the circuit court to review. As a result of our review
of the briefs submitted and the certified record, we vacate the conviction
and remand the case for a new jury trial in magistrate court.
Appellant's court-appointed attorney timely filed
(See footnote 2) a written request for a jury
trial, which was received in the magistrate court on March 18, 1999.
A one-day jury trial was held on April 12, 2000,
in the Marshall County Magistrate Court, and the proceedings were electronically
recorded as required by statute.
(See footnote 3) The jury returned a verdict
finding Appellant guilty of petit larceny but not guilty of destruction of
(See footnote 4) The petit larceny conviction resulted in
Appellant receiving a sentence of up to nine months in jail and a $250.00
The conviction of petit larceny was appealed to the circuit court by Appellant's trial attorney, who then withdrew for cause as counsel. After appointing a new attorney to handle Appellant's appeal below, the circuit court entered an order on September 12, 2000, establishing a briefing schedule based on the assumption that there was an adequate record on which appellate review could be based. Appellant's counsel subsequently obtained a copy of the jury trial tapes, which were accompanied by a letter dated September 14, 2000, from
the circuit court clerk's office, informing Appellant's counsel that the
tapes were defective. Appellant's counsel confirmed that the taped recording
was inaudible and could not be used as a basis for appellate review and further
determined that reconstruction of the record was not possible. Consequently,
Appellant informed the circuit court of the problem and filed a motion for
a new trial on September 26, 2000. In support of his motion, Appellant asserted
that due to the extensive defect of the magistrate court record he had a right
to elect to have a new trial pursuant to the holding in State ex rel. Kisner
v. Fox, 165 W.Va. 123, 267 S.E.2d 451 (1980). At the October 3, 2000,
hearing on the motion, Appellant specifically requested that the magistrate
court conviction be reversed and the case be remanded to magistrate court
for a new jury trial. The circuit court ruled on the motion for a new trial
at an October 20, 2000, hearing by stating, I'm of the opinion that
under the Fox case, Mr. Chanze is entitled to a trial. However, I'm also of
the opinion that it can only be a bench trial because he had a jury trial.
Subsequently, the circuit court stated in an order dated October 20, 2000,
that the defendant is entitled to a trial, but only a bench trial
in circuit court.
The circuit court bench trial was held on December 4, 2000, and resulted in Appellant's conviction for petit larceny. The conviction and reinstatement of the penalty imposed by the magistrate court were incorporated in the December 20, 2000, final order of the circuit court from which this appeal is taken.
The State contends that the remedy for magistrate court records which are in any way inadequate for appeal purposes is set forth in subsection (c)(5) of West Virginia Code § 50-5-13. The State further asserts that the circuit court's decision in the instant case to hold a bench trial to resolve the lack of an appellate record is in accord with subsection
(c)(5) of this statute as well as our application of this statutory provision
in the per curiam opinion of State v. Bergstrom, 196 W.Va. 656, 474
S.E.2d 586 (1996).
West Virginia Code § 50-5-13 sets forth the
appeal process involving magistrate court criminal cases and subsection (c)(5)
of this statute states:
If the circuit court finds that a record for appeal is deficient as to matters which might be affected by evidence not considered or inadequately developed, the court may proceed to take such evidence and make independent findings of fact to the extent that questions of fact and law may merge in determining whether the evidence was such, as a matter of law, as to require a particular finding. If the party appealing the judgment is also a party who elected to try the action before a jury in the magistrate court, and if the circuit court finds that the proceedings below were subject to error to the extent that the party was effectively denied a jury trial, the circuit court may, upon motion of the party, empanel a jury to re-examine the issues of fact, or some part or portions thereof.
While this statutory provision sets forth the remedy for certain deficiencies in magistrate court records on appeal, we do not find it to be dispositive of the issue in the case presently before us. The record in the instant case is not deficient as to matters which might be affected by evidence not considered or inadequately developed nor did the circuit court find that the proceedings below were subject to error to the extent that the party was effectively denied a jury trial. W.Va. Code § 50-5-13(c)(5). In summary, West Virginia Code § 50-5- 13(c)(5) is simply not applicable. Instead we are presented with the problem of an unintelligible record which is so extensively flawed that counsel, who did not represent
Appellant during the magistrate court trial, was unable to prepare a substantive
appeal and on which the circuit court could not conduct appellate review.
We are not aware of, nor have we been directed to,
any other statute which provides a remedy for such extensively flawed magistrate
(See footnote 5) However, we note the circuit court's reliance
on our conclusions in State ex rel. Kisner v. Fox, 165 W.Va. 123, 267
S.E.2d 451 (1980) to find that Appellant was entitled to a new trial. In Kisner
we had under consideration a situation analogous to the one presently before
us in that a transcript of a criminal circuit court trial could not be supplied
to the defendant because the court reporter's notes had been lost. This Court
observed in Kisner that an accurate record is necessary for appeal
purposes because the record may contain [p]rejudicial remarks, hidden
issues, and questions relating to the judge's instructions to the jury [which]
may  disclose error substantial enough to reverse the conviction.
Id. at 126-27, 267 S.E.2d at 453. Pursuant to this reasoning, we held
in syllabus point two of Kisner that
[t]he failure of the State to provide a transcript of a criminal proceeding for the purpose of appeal, absent extraordinary dereliction on the part of the State, will not result in the release of the defendant; however, the defendant will have the option of appealing on the basis of a reconstructed record or of receiving a new trial.
We have not had the opportunity to discuss the applicability of syllabus point two of Kisner to similarly flawed magistrate court electronic records since magistrate courts were not legislatively designated as courts of limited record until 1994, several years after Kisner was decided. Although magistrate court records take a different form than circuit court records, the basic reasons for having an accurate and representative record from either tribunal for appellate purposes is the same because, as we recognized in State ex rel. Collins v. Bedell, 194 W.Va. 390, 395, 460 S.E.2d 636, 641 (1995) the circuit court takes on the role of a reviewing court, not unlike this Court, rather than a trial court when a criminal conviction from magistrate court is appealed . . . . Moreover, due process principles give heightened significance to the record of magistrate court proceedings for appellate purposes. We concluded in Collins that the reason state and federal constitutional principles of due process are not offended when a non-lawyer magistrate presides over the only jury trial a criminal defendant is entitled to receive is because the statutory scheme which sets forth this process also provides meaningful review on appeal by enabling the reviewing court on appeal to ensure that a defendant was given a fair trial. Id. at 399, 460 S.E.2d at 645. Essential to providing meaningful review on appeal of a jury trial which results in a criminal conviction is a record of the proceedings in which the jury was involved. When this Court has been presented with an appeal involving a criminal jury trial from circuit court in which
no record of the proceedings below were available for review, we have returned
the matter to the circuit court for a new trial by jury. See, e.g., State
v. Neal, 172 W.Va. 189, 304 S.E.2d 342 (1983). We see no reason that the
same process should not be followed by the circuit courts when presented with
a magistrate court appeal lacking a sufficient record.
Accordingly, we hereby extend the essence of our
ruling in Kisner to magistrate court records by holding that when an
electronic record of a magistrate court jury trial in a criminal case is so
defective that no record or virtually no record is available from which to
prepare an appeal or to conduct appellate review, the criminal defendant is
entitled to obtain meaningful appellate review of the magistrate court proceedings
by informing the circuit court of the faulty record and reconstructing the
record or, if reconstruction is impossible, receiving a new trial by jury
in magistrate court.
Based on this holding, we find that Appellant's
circuit court conviction must be vacated because the circuit court erred as
a matter of law by not remanding this case to magistrate court for a new jury
remanded to the circuit court for entry of an order directing a new jury
trial in magistrate court on the charge of petit larceny.