State v. Sims

• Decision Date: 07 July 1971
• Docket Number: No. 70-78,70-78
• Citation: 272 N.E.2d 87,56 O.O.2d 45,27 Ohio St.2d 79
• Parties: , 56 O.O.2d 45 The STATE of Ohio, Appellee, v. SIMS, Appellant.
• Court: Ohio Supreme Court

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.

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 '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 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 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 (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 respondent's rights. It is now settled 'that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70. When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant's failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.'

The reasons for granting such a right to counsel on direct appeal have been variously stated:

'* * * In California, however, once the court has 'gone through' the record and denied counsel, the indigent has no recourse but to prosecute his appeal on his own, as best he can, no matter how meritorious his case may turn out to be. The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between 'possibly good and obviously bad cases.' but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.' Douglas v. California, supra, 372 U.S. 353, at 357, 83 S.Ct. 814, at 816.

'We agree with the Court of Appeals that this procedure violated respondent's Fourteenth Amendment rights, as defined in Douglas, even though respondent's trial counsel filed the notice of appeal and a motion for a new trial which specifically designated the issues which could be considered on direct appeal. The assistance of appellate counsel in preparing and submiting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the trial transcript may well be of substantial benefit to the defendant. This advantage may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.' Swenson v. Bosler, Supra, 386 U.S. 258, at 259, 87 S.Ct. 996, at 997.

'The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused's ignorant failure to claim his rights removes the protection of the Constitution.' Johnson v. Zerbst (1938), 304 U.S. 458, at 465, 58 S.Ct. 1019, at 1023, 82 L.Ed. 1461.

'If the prisoner had not been denied this right to counsel, he would have had a reasonable opportunity to file his notice of appeal within the time limited by statute and to secure at state expense a transcript of the proceedings at his trial so that a bill of exceptions could have been prepared and filed before due.' State v. Catlino, supra, 10 Ohio St.2d 183, at 184, 226 N.E.2d 109, at 111.

The reasoning expressed in those statements is equally applicable and persuasive on the issue presented in this appeal. Regarding an indigent convicted defendant...