State v. Leroy

• Citation: 30 Ohio St.2d 138,283 N.E.2d 136
• Decision Date: 17 May 1972
• Docket Number: No. 71-161,71-161
• Parties: , 59 O.O.2d 153 The STATE of Ohio, Appellee, v. LEROY, Appellant.
• Court: United States State Supreme Court of Ohio

Page 138

30 Ohio St.2d 138

283 N.E.2d 136, 59 O.O.2d 153

The STATE of Ohio, Appellee, v. LEROY, Appellant.

No. 71-161.

Supreme Court of Ohio.

May 17, 1972.

Syllabus by the Court

State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87, will not be given retroactive application to a cause under review in which the time for filing a direct appeal expired in 1964.

Appellant, Willis Leroy, was indicted, tried and convicted on three counts of armed robbery in 1964. More than six years later, on November 19, 1970, Leroy filed four motions in the Court of Appeals for Franklin County as follows:

1. To proceed in forma pauperis;

2. For an order directing the Court of Common Pleas to produce all records, i. e., transcript of journal entries; journal entries; and bill of exceptions in case No. 41586, wherein defendant was found guilty of armed robbery;

3. For an order directing the Court of Common Pleas to appoint a member of the Ohio Bar Association, in good standing, to act as counsel for defendant on his one appeal as of right;

4. For leave to appeal.

Motion No. 4, comprising six typewritten pages of legal size stationery, including a five-page memorandum of law, sets forth the grounds thereof, namely:

'A. This appellant was indicted, tried, and convicted of the crime of armed robbery (three count indictment), by a jury and the judgment of conviction was entered by the Court of Common Pleas, Franklin County on the 8th day of May, 1964.

'B. This appellant was represented by employed counsel during his trial, but, after trial did not have the necessary funds to employ counsel on appeal.

'C. This appellant was not advised of his right to an appeal by the trial court, or his attorney, after his trial, and further, that he could have his appeal of right perfected if he was unable to pay for same.

'D. This appellant was never advised of the necessity of filing a notice of appeal within the statutory time of thirty days after judgment was imposed, either by his trial attorney or the trial judge.

'E. This appellant is a layman unskilled in the law, tried to negotiate with his trial attorney for appeal, but was unable to borrow any money to pay him.

'F. Because of appellant's indigence he could not employ counsel, lacked the knowledge to perfect his own appeal, and today, is only able to move this Honorable Court for leave to appeal through the help of the institution law library. And further, appellant believes that he is entitled to redress in this forum, in his just cause.

'Upon the facts stated herein, this appellant respectfully prays that this motion be allowed on the grounds that his failure to file his timely appeal was the result of his poverty and further did not have the assistance of counsel to perfect his appeal.'

This motion was unsupported by any statement of errors or evidence relating either to the merits of the present appeal or to defendant's failure to obtain a direct appeal.

In January 1971, the Court of Appeals overruled the motion, stating that there is not a constitutional requirement that a convicted person be affirmatively informed of his right to appeal.

Appellant then filed his notice of appeal to this court, and on September 15, 1971, we granted leave to appeal solely upon the question of the applicability of State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87, to the facts of this case.

George C. Smith, Pros. Atty., and C. William Brownfield, Jr., Asst. Pros. Atty., for appellee.

Tyack, Scott & Colley and Thomas M. Tyack, Columbus, for appellant.

CORRIGAN, Justice.

The solitary feature of this appeal brings into focus the issue as to whether or not our decision in State v. Sims, supra (27 Ohio St.2d 79, 272 N.E.2d 87), is to be given retroactive application to the cause under review, which dates back to June 1964, almost eight years after this appellant's conviction on three counts of armed robbery.

The syllabus in Sims states the holding of this court and applies only to the factual pattern in that case. That syllabus reads:

'In the absence of evidence in the record upon which it could be determined that an indigent convicted defendant knowingly and intelligently waived his right of direct appeal and his right to court-appointed counsel for direct appeal prior to the expiration of the time in which such an appeal could be taken, a Court of Appeals must make such a factual determination before it dismisses a motion for leave to appeal.'

In Sims, the defendant was represented in the trial by court-appointed counsel, indicating his indigency. When he filed his motion for leave to appeal within six months of the judgment of conviction, he asserted his indigency to the Court of Appeals by affidavit. In the case before us, the defendant obviously was not indigent at the trial because he was represented by privately retained counsel. He asserts in his motion for leave to appeal, over six years later, that he endeavored to negotiate with his trial attorney for an appeal at the time of judgment in the trial court in 1964 but was unable to borrow any money to pay him therefor. It must be concluded that he knew at that time about appeal rights, from whatever source the information or advice was derived. There is absolutely nothing before us to show that defendant, Leroy, told the trial judge, after his conviction, that he was indigent or that he desired to appeal.

Although the rule stated in Sims in 1971 is sound and just, we do not believe that the United States Constitution required an Ohio Common Pleas judge in 1964 to find out whether Willis Leroy, who had just been convicted by a jury on three counts of armed robbery and who had been represented at trial by retained counsel, wished to prosecute an appeal and was no longer able to afford a lawyer to take such an appeal on his behalf.

Sims, in our opinion, is inapplicable to our instant factual pattern; likewise, Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

Let us examine briefly the doctrine of Douglas, which was handed down in 1963. In that case, defendants were convicted in a California state court of 13 felonies and sentenced to imprisonment. Exercising their only appeal as of right, they appealed to an intermediate Court of Appeals, and, being indigent, applied to that court for appointment of counsel to assist them in the appeal. In accordance with a state rule of criminal procedure, that court made an ex parte examination of the record, determined that appointment of counsel for petitioners would not be 'of advantage to the defendant or helpful to the appellate court' and denied appointment of counsel. Petitioners' appeal was heard without assistance of counsel and their convictions were affirmed. The California Supreme Court denied a discretionary review. The United States Supreme Court held that where the merits of the one and only appeal an indigent has of right are decided without benefit of counsel in a state criminal case, there has been a discrimination between the rich and the poor which violates the Fourteenth Amendment.

In the majority opinion written by Douglas, J., that court said, at page 354, 83 S.Ct. at page 815: 'Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of Counsel on appeal, even though it plainly appeared they were indigents.' (Emphasis added.)

Later, on page 355, 83 S.Ct. at page 815, the opinion states: 'Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal.' (Emphasis added.) And, of course, Douglas is retroactive in effect, under Smith v. Crouse (1964), 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039, but that certainly does not mean any more than that the decision is retroactive in a situation such as was there presented. ¹

The Supreme Court of the United States has denied retroactivity in connection with many constitutional rules of criminal procedure, under the general principle that 'the Court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application * * *.' Johnson v. New Jersey (1966), 384 U.S. 719, 726-727, 86 S.Ct. 1772, 1777, 16 L.Ed.2d 882. For example, Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, refused retroactive application to Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (illegal search and seizure, Fourth Amendment); Tehan v. United States, ex rel. Shott (1966), 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; to Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (comment on failure to take the witness stand, Fifth Amendment); Johnson v. New Jersey, supra, to both Escobedo v. Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, to United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (lineup identification, Fifth and Sixth Amendments), and Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Desist v. United States (1969), 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, refused retroactive application to Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (electronic eavesdropping as illegal search and seizure, Fourth Amendment); DeStefano v. Woods (1968), 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308, to Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (right to jury trial-serious offenses, Sixth Amendment), and Bloom v. Illinois (1968), 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (right to trial by jury-serious criminal contempt, Sixth Amendment); Williams v. United States (1971), 28 L.Ed.2d 388, 401 U.S. 646, 91 S.Ct. 1148, to Chimel v. California (1969), 395 U.S. 752, 89 S.Ct....