State v. Toney

• Decision Date: 01 September 1970
• Parties: , 52 O.O.2d 304 The STATE of Ohio, Appellee, v. TONEY, Appellant.
• Court: Ohio Court of Appeals

Page 203

23 Ohio App.2d 203

262 N.E.2d 419, 52 O.O.2d 304

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

Court of Appeals of Ohio, Seventh District, Mahoning County.

Sept. 1, 1970.

Syllabus by the Court

1. An indigent accused has a constitutional right to court-appointed counsel for the purposes of appeal from his conviction.

2. Court-appointed counsel should conscientiously examine the record of the trial court and present any assignments of error which could arguably support the appeal.

3. Where a court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent's appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.

4. Court-appointed counsel's conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.

5. It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.

6. Where the Court of Appeals make such an examination and concludes that the appeal is wholly frivolous, the motion of an indigent appellant for the appointment of new counsel for the purposes of appeal should be denied.

7. Where the Court of Appeals determines that an indigents appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.

Vincent E. Gilmartin, Pros. Atty., and John A. Kicz, Youngstown, for appellee.

Edward L. Williams, Youngstown, court appointed counsel, and Lee Vaughn Toney, in pro. per., for appellant.

JOHNSON, Judge.

Defendant, along with two other persons, Frank Baker and Robert White, was charged with the armed robbery of Tape City Stereo on Glenwood Avenue, Youngstown, Ohio, on January 5, 1968.

Acting on a tip, the police staked out the area and Baker and White were apprehended at the site while in the perpetration of the crime. Defendant, the driver of the car used in the robbery, made good his escape after a high speed chase.

He was arrested on December 11, 1968, and served with a copy of the indictment which had been returned at the January term of the Mahoning County Grand Jury.

Defendant, an indigent, was arraigned before Judge Osborne, who, prior to inquiry as to his plea, appointed counsel for his defense.

A writ of habeas corpus was filed, wherein it was claimed that the man named in the indictment, to wit, James Toney, was not in fact the defendant in custody who claimed to be Lee Vaughn Toney.

Evidence was adduced in the form of fingerprints, a long Youngstown City Police record, an F.B.I. record, as well as the testimony of the officers on the stake-out, that James Toney and Lee Vaughn Toney were one and the same person. Judge Cavalier ruled to that effect and found that the defendant was properly held. The indictment was amended to read 'James Toney, a. k. a. Lee Vaughn Toney.'

Defendant was returned to Judge Osborne's court for arraignment, at which time he refused to plead to the charge. A plea of 'not guilty' was entered by the court. On trial before a jury he was found guilty as charged and sentenced to ten to twenty-five years in the Ohio Penitentiary.

A notice of appeal was filed after a motion for a new trial had been overruled.

Upon finding appellant indigent, his motion for appointment of counsel for appeal at state expense was allowed by this court, and attorney Edward L. Williams was appointed to prosecute the appeal on October 7, 1969.

A transcript of the docket and journal entries has been filed, and a transcript of the arraignment, the hearing on the writ of habeas corpus and a bill of exceptions has been prepared and filed in the cause. The same were certified by the trial court on December 30, 1969.

On September 26, 1969, appellant pro se filed assignments of error and briefs.

Thereafter, on March 10, 1970, a brief was filed by attorney Williams, wherein he stated:

'The writer has made a diligent search of the bill of exceptions and made a careful research of the law which might 'arguably support appeal' and we are unable to substantiate any of the defendant's assignments of error.'

In counsel's brief each of the errors assigned by appellant pro se are analyzed and found in effect to be frivolous in the opinion of appointed counsel. A copy of counsel's brief was forwarded to the defendant at the penitentiary.

On March 27, 1970, a motion was filed pro se asking the discharge of attorney Williams on the ground that he is inadequate, incompetent and ineffective.

On April 13, 1970, appellant pro se filed a supplemental brief wherein a statement of the case, eight assigned errors, and authority in support were set out in considerable detail.

On April 27, 1970, attorney Williams filed a motion asking to be dismissed as appellant's counsel, reciting his inability to find prejudicial error, and wishing not to prejudice the defendant's constitutional rights, both state and federal, by further representation of defendant in view of the conclusions counsel had reached.

What procedure should this court follow in safeguarding the constitutional rights of an indigent defendant where appointed counsel fails to assign errors which might 'arguably support appeal'?

At the outset we would note that as a matter of policy we have long refrained from the practice of appointing young or inexperienced counsel to represent defendants on criminal appeals. We hold it to be the obligation of experienced criminal practitioners to accept appointment to represent indigent defendants in appeals. Though the compensation we can pay is totally inadequate for the services involved, we have received the cooperation of experienced practitioners who deem it their duty to conscientiously perform when called upon to represent indigent defendants.

Attorney Edward L. Williams has been an active criminal practitioner for over forty years. He has appeared in numerous first degree murder cases and charges of lesser import. Through the years he has frequently appeared before this court on behalf of paying clients. His conscientious efforts in the instant matter have equaled or excelled those given on behalf of the more fortunate who could pay for his efforts.

He has acted in the role of an active advocate in the case at bar as opposed to that of amicus curiae.

But does due process require the marshalling of some argument on behalf of an indigent when competent counsel can discover no error in the record? Are constitutional guarantees so broad that appointments should continue to be made in a case until some counsel will advance and error that arguably supports the appeal?

In Anders v. California, 386 U.S. 738, o87 S.Ct. 1396, 18 L.Ed.2d 493, Mr. Justice 87 S.Ct. 1396, 18 L.Ed.2d 493, Mr. Justice concerning '* * * the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal.'

In that case (a conviction for possession of marijuana), after a study of the record and conferences with the defendant, counsel advised the court that there was no merit in the appeal, and at the same time he informed the court that appellant wished to file a brief on his own behalf. At this juncture petitioner requested the appointment of another attorney. Petitioner then filed his own brief pro se. Paragraph seven of the syllabus reads:

'An indigent accused's...