State v. Sims, No. 70-78

CourtUnited States State Supreme Court of Ohio
Writing for the CourtSTERN; The reasoning expressed in those statements is equally applicable and persuasive on the issue presented in this appeal. Regarding an indigent convicted defendant's right to notice of appeal and to notice of his right to court-appointed counsel
Citation272 N.E.2d 87,56 O.O.2d 45,27 Ohio St.2d 79
Docket NumberNo. 70-78
Parties, 56 O.O.2d 45 The STATE of Ohio, Appellee, v. SIMS, Appellant.

Page 79

27 Ohio St.2d 79
272 N.E.2d 87, 56 O.O.2d 45
The STATE of Ohio, Appellee,
v.
SIMS, Appellant.
No. 70-78.
Supreme Court of Ohio.
July 7, 1971.

Syllabus by the Court

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.

[272 N.E.2d 88] Daniel Lee Sims, appellant herein, was tried and convicted for receiving and concealing stolen goods valued at $350. During his trial he was represented by courtappointed counsel.

In view of the appellant's indigency, the Court of Appeals officially appointed counsel on December 3, 1969. However, the appellant had his counsel's services the preceding summer. Subsequent to his judgment of conviction, which was entered on May 22, 1969, and after the time in which to file a notice of appeal had elapsed, the appellant filed in the Court of Appeals, on November 19, 1969, a motion entitled 'Motion for leave to appeal, for production of bill of exceptions and transcript at state expense, for leave to proceed in forma pauperis and appointment of counsel.'

This motion stated, in pertinent part:

'* * * As grounds for motion appellant states the following:

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'1. Appellant was indicted, tried, and convicted of receiving stolen goods. A judgment of conviction was entered by the Court of Common Pleas on May 24, 1969.

'2. Appellant was represented by court-appointed counsel at his trial. His counsel withdrew from the case following the trial.

'3. Appellant did not have funds to employ counsel after conviction.

'4. Appellant was not advised of his rights to an appeal or his right to counsel on appeal by the Court at state expense.

'5. Appellant was not represented by counsal after conviction.

'6. Appellant was not advised of the necessity of filing a notice of appeal within thirty days after judgment of conviction was entered and sentence imposed.

'7. Appellant, a layman unskilled in the law, desires to perfect an appeal from his conviction but lacks the knowledge to do so.

'8. Because of his poverty, appellant is unable to employ counsel and to pay the costs incident to perfecting his appeal.

'9. Also because of his poverty, appellant is unable to give bond or other security before his appeal.

'10. Appellant believes that he is entitled to redress in this cause. Upon the facts stated above, appellant respectfully requests the following:

'(a) That the court grant appellant's motion for leave to appeal on the grounds that appellant's failure to file a timely appeal was the result of his not having the assistance of counsel to perfect an appeal.

'(b) That the court grant appellant's motion for production of transcript and bill of exceptions at state expense, so that appellant can demonstrate any errors of law sufficient to constitute grounds for appeal and reversal.

'(c) That the court grant appellant's motion to proceed in forma pauperis and for appointment of counsel at

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state expense on the ground that appellant's indigency prevents him from paying the costs of an appeal and from employing counsel in his behalf.'

Accompanying this motion was a memorandum in support of his motion and affidavits of indigency and verity.

The Court of Appeals overruled the appellant's motion.

The cause is now before this court pursuant to the allowance of appellant's motion for leave to appeal.

Melvin G. Rueger, Prosecuting Atty., and Leonard Kirschner, Cincinnati, for appellee.

Rendigs, Fry, Kiely & Dennis, and William P. Schroeder, Cincinnati, for appellant.

STERN, Justice.

The issue presented by this appeal is whether a Court of Appeals may dismiss a [272 N.E.2d 89] motion for leave to appeal by an indigent convicted defendant without first determining whether he was notified of his right to appeal and his right to court-appointed counsel for such an appeal.

The right to an appeal in state courts is not an absolute right. In McKane v. Durston (1894), 153 U.S. 684, 687, 14 S.Ct. 913, 915, 38 L.Ed. 867, it was stated that:

'* * * An appeal from a judgment of conviction is not a matter of absolute right, independently of constitutional or statutory provisions allowing such appeal. A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review. A citation of authorities upon the point is unnecessary.'

However, where the opportunity to appeal is granted, as in Ohio (R.C. § 2953.05), it has been settled that an indigent convicted defendant cannot be deprived of this opportunity by his impecunious condition. Griffin v. Illinois

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(1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Burns v. Ohio (1959), 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209.

Moreover, counsel must be provided for an indigent convicted defendant for an appeal as of right. Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; State v. Catlino (1967), 10 Ohio St.2d 183, 226 N.E.2d 109. This right has been given retroactive application. Smith v. Crouse (1964), 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039; State v. Webb (1967), 11 Ohio St.2d 60, 227 N.E.2d 625.

This right exists even in the absence of a request. As articulated in Swenson v. Bosler (1967), 386 U.S. 258, at 260, 87 S.Ct. 996, at 997, 18 L.Ed.2d 33:

'Petitioner contends that, since the District Court did not hold a hearing to determine whether respondent actually requested the appointment of appellate counsel, the record as it presently exists does not support the Court of Appeals' express conclusion that respondent did make such a request. * * * But even if such a request had not been made, we do not think its absence would amount to a waiver of...

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45 practice notes
  • State v. Leroy, No. 71-161
    • United States
    • Ohio Supreme Court
    • May 17, 1972
    ...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 Pag......
  • Lewis v. Cardwell, Civ. A. No 71-76.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • May 19, 1972
    ...Cty.Ct.Apps.1949); Ex parte Hertz, Ohio App., 139 N.E.2d 645, 74 Ohio Law.Abst. 71 (Franklin Cty.Ct.Apps.1953). See, State v. Sims, 27 Ohio St.2d 79, 272 N.E.2d 87 (1971); Toledo v. Reasonover, 115 Ohio App. 434, 185 N.E.2d 500 (Lucas Cty.Ct. Apps.1962); State v. Steel, Ohio App., 199 N.E.2......
  • US v. Aloi, No. 5:90CR0311.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 23, 1991
    ...to fully recognize a defendant's right to advice of his appellate rights until 1971. See State v. Sims, 27 773 F. Supp. 63 Ohio St.2d 79, 56 O.O.2d 45, 272 N.E.2d 87 (1971).7 Ohio Rule of Criminal Procedure 32(A)(2), adopted in 1973, now expressly requires Ohio judges to advise criminal def......
  • McIntosh v. Hudson, Case No. 3:07 CV 2583.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 10, 2009
    ...799 (1963); Ludwig v. United States, 162 F.3d 456 (6th Cir.1998); Gilbert v. Sowders, 646 F.2d 1146 (6th Cir.1981); State v. Sims, 27 Ohio St.2d 79, 272 N.E.2d 87 (1971); State v. Catlino, 10 Ohio St.2d 183, 226 N.E.2d 109 (1967))). Petitioner gave the highest court in the State of Ohio a f......
  • Request a trial to view additional results
45 cases
  • US v. Aloi, No. 5:90CR0311.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 23, 1991
    ...to fully recognize a defendant's right to advice of his appellate rights until 1971. See State v. Sims, 27 773 F. Supp. 63 Ohio St.2d 79, 56 O.O.2d 45, 272 N.E.2d 87 (1971).7 Ohio Rule of Criminal Procedure 32(A)(2), adopted in 1973, now expressly requires Ohio judges to advise criminal def......
  • Kelley v. Brunsman, No. 1:08-CV-00071.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 9, 2009
    ...court appointed counsel for such appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814 [9 L.Ed.2d 811] (1963); State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87, 2. The court of common pleas violated appellant's right to trial by jury by sentencing appellant to a term of incarcerati......
  • McIntosh v. Hudson, Case No. 3:07 CV 2583.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 10, 2009
    ...799 (1963); Ludwig v. United States, 162 F.3d 456 (6th Cir.1998); Gilbert v. Sowders, 646 F.2d 1146 (6th Cir.1981); State v. Sims, 27 Ohio St.2d 79, 272 N.E.2d 87 (1971); State v. Catlino, 10 Ohio St.2d 183, 226 N.E.2d 109 (1967))). Petitioner gave the highest court in the State of Ohio a f......
  • State v. Leroy, No. 71-161
    • United States
    • Ohio Supreme Court
    • May 17, 1972
    ...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 Pag......
  • Request a trial to view additional results

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