Jurgevich v. District Court, Routt County , 907 P.2d 565 ( 1995 )

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 postcon-viction relief pursuant to Crim.P. 35(c), 7B C.R.S. (1984). The district court denied Jurgevich’s motion for use of the transcript on the grounds that Jurgevich had failed to assert a basis for using the transcript in obtaining postconviction relief. Jurgevich contends that, as an indigent, he is constitutionally entitled to a free transcript in order to prepare his motion for postconviction relief. We hold that the district court did not abuse its discretion in denying Jurgevich’s motion for a free transcript because Jurge-vich failed to show that he may be entitled to relief under Crim.P. 35(c) and that the record might contain specific facts that would substantiate any alleged errors. We therefore discharge the rule.

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 post-conviction motion. On June 12, 1995, Jurge-vich 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 Crim.P. 35(c) postconviction motion. In particular, Jurgevich stated that he would use the transcript “for the precise and intelligent isolation and identification of the errors” that occurred at trial, but did not specify what potential errors might be raised.

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 appellate counsel failed to raise the issue of ineffective assistance and other issues on appeal. The trial court denied the motion to reconsider on June 29, 1995. Jurgevich subsequently filed a petition for writ of mandamus.

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 Jurgevieh’s motion because Jurge-vich 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 Crim.P. Rule 35 proceeding).

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 Crim.P. 35(c), Romero v. District Court, 178 Colo. 200, 202, 496 P.2d 1049, 1050 (1972), and that the record might contain specific facts that would substantiate alleged errors, Snavely v. Shannon, 182 Colo. 223, 226, 511 P.2d 905, 907 (1973); People v. Manners, 878 P.2d 71, 72 (Colo.App.), cert. denied, No. 94SC182 (Aug. 8, 1994). It is not sufficient for the defendant to establish only that he is indigent and would like a free transcript. Carr v. District Court, 157 Colo. 226, 228, 402 P.2d 182, 183 (1965).

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 28 U.S.C. § 2255 may constitutionally be predicated on a showing that the petitioner has non-frivolous claims and a need for the transcript.¹ A similarly situated prisoner of some but not unlimited means presumably must determine that he has non-frivolous claims and a need for the transcript before deciding to spend his own funds for a transcript. MacCollom, 426 U.S. at 328, 96 S.Ct. at 2093. Merely because a transcript might be of benefit to a defendant does not mean that he is constitutionally entitled to one. Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2446, 41 L.Ed.2d 341 (1974).

Here, the district court found that Jurge-vich failed to demonstrate that he may be entitled to relief pursuant to Crim.P. 35(c) and that the record might contain specific facts that would substantiate any alleged errors. In his original motion for the transcript, Jurgevich only claimed that he wished to review the transcript to discover errors. In his motion to reconsider, Jurgevich stated that he had received ineffective assistance of counsel at trial and that counsel had faded to present available mitigating evidence or raise his incompetence to stand trial. Jurgevich also asserted that appellate counsel failed to raise the issue of ineffective assistance and other issues on appeal. It appears, however, that these claims concern matters that would be outside of the trial transcript. See Valdez v. District Court, 171 Colo. 436, 439, 467 P.2d 825, 827 (1970) (stating that claims such as counsel’s failure to investigate all available defenses would not appear in transcript so as to warrant a free transcript). Thus, the district court properly found that Jurgevich failed to adequately demonstrate a basis for the court to provide him with a free transcript.

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 Jurge-vich 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 ease is not similar to Sherbondy because Jurgevich’s conviction is less than seven years old. Despite Jurge-vich’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 ease 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

III.

Because Jurgevich failed to show that he may be entitled to relief under Crim.P. 35(c) and that the record might contain specific facts that would substantiate alleged errors, we hold that the district court did not abuse its discretion in denying Jurgevich’s motion for a free transcript. We therefore discharge the rule.

LOHR, J., dissents. KOURLIS, J., does not participate.

1 . Crim.P. Rule 35(c) and 28 U.S.C. § 2255 serve the same function at the federal and state levels, respectively. See People v. Wiedemer, 852 P.2d 424, 431 n. 8 (Colo.1993).

2 . Jurgevich also asserts that the trial court should grant his motion because he only asks the court to loan him an existing transcript rather than prepare a new transcript for him. However, the requirement that defendants must demonstrate a basis for obtaining a free transcript for a collateral attack applies even where a transcript already exists. See Manners, 878 P.2d at 72 (holding that the existence of a transcript does not control the decision whether to provide free transcript to indigent).