State v. Lester, No. 74-50

• Court: United States State Supreme Court of Ohio
• Writing for the Court: STERN; C. WILLIAM O'NEILL
• Citation: 70 O.O.2d 150,322 N.E.2d 656,41 Ohio St.2d 51
• Docket Number: No. 74-50
• Decision Date: 05 February 1975
• Parties: , 70 O.O.2d 150 The STATE of Ohio, Appellee, v. LESTER, Appellant.

Page 51

41 Ohio St.2d 51 322 N.E.2d 656, 70 O.O.2d 150 The STATE of Ohio, Appellee,
v.
LESTER, Appellant. No. 74-50. Supreme Court of Ohio. Feb. 5, 1975.

[322 N.E.2d 657] Syllabus by the Court

1. A convicted indigent defendant may not, in a postconviction proceeding or in an appeal therefrom, raise contentions that he was not informed of the procedure by which to appeal and of his right to court-appointed counsel for such an appeal. Such contentions are properly raised by way of motion for leave to appeal in the Court of Appeals. (State v. Sims, 27 Ohio St.2d 79, 272 N.E.2d 87, and State v. Benton, 27 Ohio St.2d 87, 272 N.E.2d 92, approved and followed.)

2. R.C. 2953.21 requires the trial court to consider the allegations of the petition for postconviction relief and the particular facts upon which the petitioner bases

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his claim; if, upon such consideration, the trial court finds no grounds for a hearing, the court is required to make and file findings of fact and conclusions of law as to the reasons for dismissal and as to the grounds for relief relied upon in the petition.

On February 9, 1973, in the Court of Common Pleas of Allen County, William K. Lester, appellant herein, was found guilty of the sale of narcotics. He was subsequently sentenced to the Ohio Penitentiary for a term of 20 to 40 years. No appeal as of right was taken within the 30-day period after entry of judgment, although appellant did write letters to his court-appointed counsel and to the Court of Appeals concerning a possible appeal. On July 24, 1973, appellant filed a petition pro se in the Court of Common Pleas to set aside his sentence under Ohio statutory provisions for postconviction determination of constitutional rights. Appellant stated two grounds for relief: First, that there was insufficient evidence to warrant conviction; second, that he did not have effective assistance of counsel at his trial. The petition was dismissed without a hearing and without a filing of findings of fact and conclusion of law. The journal entry stated, as a basis for dismissal, that appellant 'never appealed his judgment of conviction nor attempted to exercise further appellate remedies available to him.' A motion for appointment of counsel was also denied.

On September 25, 1973, appellant filed a notice of appeal from the dismissal of his petition for postconviction relief in the Court of Appeals. This appeal was dismissed on December 14, 1973, for failure to timely file a record.

Appeal from that dismissal was thereupon taken to this court, and we dismissed an appeal as of right, but allowed a motion for leave to appeal and appointed counsel to represent the appellant before this court.

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Lawrence S. Huffman, Prosecuting Atty., for appellee.

Bowers, White & Demeo and Anthony J. Bowers, Lima, for appellant.

STERN, Justice.

Appellant raises two claims for postconviction relief. The first claim is that, at the sentencing hearing, neither the court nor appellant's court-appointed attorneys properly informed him that, because he is indigent, if he desired to appeal his case to the Court of Appeals, the court would appoint counsel under R.C. 2941.50(B). Appellant seeks herein to raise this claim upon appeal from the denial of postconviction relief. In State v. Benton (1971), 27 Ohio St.2d 87, 272 N.E.2d 92, we held that 'A convicted indigent defendant[322 N.E.2d 658] may not, in a postconviction proceeding, raise contentions that he was not informed of the procedure by which to appeal and of his right to court-appointed counsel for such an appeal.' This claim is properly raised by way of motion for leave to appeal in a Court of Appeals (State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87), and is not cognizable in an appeal from a denial of...