State v. Delaney

• Decision Date: 19 November 1958
• Citation: 221 Or. 620,332 P.2d 71
• Parties: STATE of Oregon, Respondent, v. Jack Robert DELANEY, Appellant.
• Court: Oregon Supreme Court

Page 71

332 P.2d 71

221 Or. 620

STATE of Oregon, Respondent, v. Jack Robert DELANEY, Appellant.

Supreme Court of Oregon, In Banc.

Nov. 19, 1958.

ROSSMAN, Justice.

Following his conviction in the Circuit Court for Clackamas County of the crime of assault with intent to commit rape, the defendant gave notice of appeal and filed with this court (1) an affidavit in which he described himself as an indigent, and (2) a motion which sought orders (a) for the appointment of counsel to represent him upon appeal and (b) directing the Curcuit Court for Clakamas County to deliver to him, at county expense, a transcript of the proceedings in that court. We shall assume that defendant's affidavit, which describes him as indigent, is truthful. The motion states that it 'is made pursuant to the decision of the Supreme Court of the United States in the case of Griffin v. People of State of Illinois,' (351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055). The only information concerning the appellant's case which we have is given by (a) the following part of an affidavit: 'I have meritorious grounds for appeal in my opinion,' and (b) the name of the crime with which he is charged (ORS 163.270). The penalty for the guilty is not to exceed 20 years' imprisonment. ORS 163.210. The nature of the 'meritorious grounds' has not been disclosed. We have no information concerning the defendant, such as his age, education and experience. If the defendant was represented to counsel in the circuit court there is no statement by that attorney as to whether, in his opinion, the defendant has a basis for an appeal. Thus, the defendant asks us to appoint counsel for him and to require the county to supply him with a transcript merely because he states, 'I have meritorious grounds for appeal in my opinion.'

ORS 21.470 authorizes the trial judge to supply an indigent appellant, at county expense, a transcript of the proceedings. The trial judge, in the case at bar, has ordered that the transcript be delivered to the defendant, and, accordingly, that phase of the motion requires no further attention.

We are not, in this case, faced with the question of appointment of an attorney for the purpose of perfecting the defendant's appeal. Few laymen, no doubt, would be able to comply with the procedural requirements in that regard without the aid of counsel. It should, therefore, be understood that what is here said relates only to the question of whether an attorney should be appointed to present the case for the defendant by brief and oral argument.

The defendant's motion states that it 'is made pursuant to * * * Griffin v. People of State of Illinois.' Griffin in that case, together with his co-indictee, had been convicted in the Illinois state courts of armed robbery. Preparatory to appeal to the Illinois appellate court, the two defendants moved in the trial court for delivery to them, at public expense, of a transcript of the trial proceedings. An affidavit described the defendants as indigents. The Illinois courts denied the motion. The United States Supreme Court held that denial of the motion impinged upon rights which the Federal Constitution granted to the defendants.

We recognize, as pointed out by Justice Schaefer of the Illinois Supreme Court in 'Federalism and State Criminal Procedure,' 70 Harv.L.Rev. 1, that Griffin v. People of State of Illinois does not stand alone like an island in a sea, but that its holding is a further development of the rights possessed by an accused ever since it was perceived that the due process and equal protection clauses are applicable to those who are tried for crimes in state courts.

Although Illinois gives to all convicted of crime review by writ of error, the only manner in which a complete review can be his is through a bill of exceptions, and a transcript of the record is essential to such a bill. Without a transcript, an appellant is unable to challenge rulings which were made during the reception of evidence and in the instruction of the jury. After the trial judge in the Griffin case had denied the defendants' motion, the petitioners exhausted their other state remedies but still lacked the indispensable transcript. Five members of the United States Supreme Court deemed that the denial of the transcript was a matter of federal concern. Whether all five believed that the denial of the transcript was an infringement upon the due process and equal protection clauses cannot be definitely determined from the decision. The latter recognized that a state is not required to provide those convicted of crime with appellate review, but held that if review of that nature is allowed to those who can pay the expenses thereof, it must be granted to like extent to those who cannot. The equal protection clause so demands, according to the holding, which stated 'Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.'

The majority held that unreasonable discrimination in the administration of criminal justice, whether during the trial or upon appellate review, constitutes arbitrary denial of fundamental fairness which the due process clause does not countenance. Poverty is an irrelevant element and cannot withhold from the penniless appellate review available to those in adequate financial condition. Without the sought-for transcript, the two would-be appellants would have been unable to secure appellate review to the same extent as those who could purchase transcripts. The Griffin decision was followed in Eskridge v. Schneckloth, 355 U.S. 947, 78 S.Ct. 531, 2 L.Ed.2d 526. Barber v. Gladden, 210 Or. 46, 298 P.2d 986, 309 P.2d 192, yielded effect to the Griffin holding by ruling that, since the indigent petitioner for a writ of habeas corpus in that case could not pay for an undertaking on appeal and, therefore, unlike those who could pay, would be denied appellate review, the statutory requirement for filing the undertaking would be deemed waived.

Had the need for a transcript in the Griffin case and for an undertaking in the Barber case not been met, those would-be appellants would have been barred from the complete appellate review which was at the avail of those in favorable financial circumstances. But, in the case at bar, whether the defendant has or has not an attorney, his case will receive consideration from this court. The notice of appeal has brought the case to this court, ORS 19.030(3). It must, and will, receive our attention.

Although only a transcript was sought by the would-be appellants in the Griffin case, the court's concern was with something broader than that document. Its concern was with the principles of constitutional law that have become termed 'equal protection' and 'due process' whether in a given case those principles pertain to a transcript of record or to some other need which, if not met, will deny to a would-be appellant equal protection or due process.

The Sixth Amendment to the United States Constitution says:

'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defense.'

Rule 44 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., follows:

'If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.'

Article I, § 11, Constitution of Oregon, provides:

'In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel; * * *.'

ORS 135.310 says:

'If the defendant appears for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned and shall be asked if he desires the aid of counsel.'

ORS 135.320 follows:

'Whenever it appears upon arraignment of a person accused in the circuit court of a crime * * * that he is without funds and unable to retain his own counsel; the court * * * shall, upon request of the accused, appoint suitable counsel, not exceeding two, to represent him.'

ORS 133.610, which applies to magistrates, contains provisions substantially the same as ORS 135.310.

ORS 138.820 empowers this court to appoint counsel to represent the defendant upon appeal 'if he is not already represented by counsel' in cases governed by ORS 138.810, which automatically appeals death judgments.

ORS 135.330 provides for compensation for counsel appointed pursuant to ORS 135.320. Payment is made by the county in which the proceeding is had. If the plea is guilty to a charge of a misdemeanor, the remuneration is $5, but upon a charge of felony it is $15. If the plea is not guilty, a fee of $10 per day for not more that two days upon a charge of a misdemeanor becomes payable, and $15 per day if the accused is charged with a felony, except in homicide cases. In cases of the latter kind 'a sum not exceeding $150' may be paid to the court-appointed counsel. Counsel fees in appeals for which ORS 138.810 makes provision are fixed by this court in a reasonable amount and are paid by the county in which the judgment of death was entered. ORS 138.840(3). It seems clear that the statutory provisions above cited, with the exception of ORS 138.840(3), have no application to services rendered upon appeal, and that they do not authorize this court to appoint counsel. But see ORS 21.720.

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, decided in 1938, represents the first pronouncement by the United States Supreme Court that the Sixth Amendment guarantees the assistance of counsel to all defendants in federal criminal trials. It held that compliance with the Sixth Amendment 'is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty.' Waiver of the right was held permissible if 'competently and...