Opinion
No. 75-1028
Decided February 18, 1976.
Criminal procedure — Appeal — By indigent defendant — Motion for free transcript, denied — Mandamus available to compel furnishing, when.
APPEAL from the Court of Appeals for Montgomery County.
In February and April of 1975, Catherine E. Dillard, Matthew Pittman, Victor W. Horton and John W. Howard, appellees herein, were separately convicted in the Dayton Municipal Court of various misdemeanor violations. Each filed a notice of appeal and a motion, supported by an affidavit of indigency, to be furnished a transcript without charge. Hearings to determine indigency or need for transcripts were neither requested nor held. Each motion for a free transcript was overruled. The overruling of one such motion was grounded upon defendant's failure to comply with the provision of App. R. 9(B), which reads: "* * * At the time of ordering, a party shall arrange for the payment to the reporter of the cost of the transcript."
On June 11, 1975, the four criminal defendants instituted a consolidated action in mandamus in the Court of Appeals for Montgomery County, seeking a writ to compel their respective trial judges to order preparation of transscripts at public expense.
The Court of Appeals granted the writ of mandamus, and ordered that the trial judges "* * * forthwith make a judicial determination of relators' indigency, and, upon an affirmative finding of relators' status as indigents, cause a transcript or other adequate alternative record of the proceedings to be prepared and furnished to relators without cost or charge to said relators."
The cause is now before this court pursuant to an appeal as of right.
Mr. John W. Kessler, for appellees.
Mr. James W. Drake, city attorney, and Mr. H. Donald Hawkins, for appellants.
Counsel for appellants argue that indigent criminal appellants should not be furnished trial transcripts at public expense, unless (1) "need" is demonstrated and (2) the order to provide the transcript "indicates who, or what fund, is to be the source for paying the court reporter for this work, and describes an effective procedure for collecting such payment."
The first assertion must be rejected because it places the burden of proving "need" on the wrong party. Paragraph two of the syllabus in State v. Arrington (1975), 42 Ohio St.2d 114, recognizes that "[t]he burden is on the state to show that a transcript of prior proceedings requested by an indigent defendant is not needed for an effective defense or appeal," and paragraph four of the Arrington syllabus states: "[o]rdinarily it is assumed that a transcript * * * would be valuable to a defendant without requiring a showing of need tailored to facts of the particular case." See Britt v. North Carolina (1971), 404 U.S. 226, 228, 230.
The second assertion appears to be a corollary to the suggestion that an indigent is bound by App. R. 9(B) to "arrange for" the payment of those who produce transcripts. Appellants have neither cited adequate authority for such premises nor shown the propriety of such an inquiry in the context of a mandamus proceeding.
Appellants' assertions must be rejected for the additional reason that to adopt them would create added burdens for indigents and impose further obstacles along the appellate path, which would directly violate the principle of Griffin v. Illinois (1956), 351 U.S. 12, and its progeny, that indigent defendants may not be priced out of "* * * as effective an appeal as would be available to others able to pay their own way. * * * The state's fiscal interest is, therefore, irrelevant," ( Mayer v. Chicago, 404 U.S. 189, 197) and cannot be asserted to further infringe the rights of the disaffected.
See, e.g., State v. Sims (1971), 27 Ohio St.2d 79, and the federal cases reviewed therein.
"* * * [T]he state's long-term interest would not appear to lie in making access to appellate processes from even its most inferior courts depend upon the defendant's ability to pay. It has been aptly said:
"`[F]ew citizens ever have contact with the higher courts. In the main, it is the police and the lower court Bench and Bar that convey the essence of our democracy to the people.
"`Justice, if it can be measured, must be measured, by the experience the average citizen has with the police and the lower courts.'
"Arbitrary denial of appellate review of proceedings of the state's lowest trial courts may save the state some dollars and cents, but only at the substantial risk of generating frustration and hostility toward its courts among the most numerous consumers of justice." Mayer v. Chicago, supra, at pages 197-198.
The Court of Appeals properly exercised its jurisdiction in mandamus to compel appellants to furnish transcripts or other adequate alternative record of the proceedings to indigent criminal appellants ( State, ex rel. Seigler, v. Rone, 42 Ohio St.2d 361; State, ex rel. Wright, v Cohen, 174 Ohio St. 47), and its judgment is, therefore, affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.