Summary
In State v. Catlino (1967), 10 Ohio St.2d 183, the incarcerated convict, acting diligently but without counsel, did not file his notice of appeal as of right with the Court of Appeals within the statutory time.
Summary of this case from State v. WebbOpinion
No. 40673
Decided May 3, 1967.
Criminal procedure — Appeal — Convicted defendant entitled to counsel — Dismissing appeal or affirming judgment — Not adjudication of claims of error, when — Waiver of right to counsel not judicially determined.
1. A convicted defendant has a constitutional right to counsel on a direct appeal to the Court of Appeals from his judgment of conviction. ( Douglas v. California, 372 U.S. 353, followed.)
2. In the absence of a judicial determination that a prisoner knowingly and intelligently waived his right to counsel on an appeal to the Court of Appeals from his judgment of conviction, the judgment of the Court of Appeals either dismissing the appeal or affirming the judgment of conviction will not amount to an adjudication of any claims of error that were or could have been raised on that appeal.
APPEAL from the Court of Appeals for Cuyahoga County.
This proceeding for postconviction relief pursuant to Section 2953.21 et seq., Revised Code, was instituted in the Common Pleas Court of Cuyahoga County in May 1966 by a prisoner, seeking relief from a judgment of December 22, 1964, of the Common Pleas Court, convicting the prisoner of a felony for which he has since been and now is imprisoned in the penitentiary. The prisoner, being an indigent, was represented at his trial by court-appointed counsel. He has not been represented by counsel since the judgment of conviction was rendered by the Common Pleas Court. He has repeatedly sought at state expense and been refused a transcript of the proceedings at his trial for the reason that he had no appeal pending. See State, ex rel. Catlino, v. Clerk of Common Pleas Court of Cuyahoga County (1967), 9 Ohio St.2d 101.
Apparently, because he was taken to the penitentiary shortly after his sentence thereto, he did not have an opportunity to file his notice of appeal on or before the time limited by statute, i. e., January 21, 1965. His motion for leave to appeal was overruled by order of the Court of Appeals on March 31, 1965. On February 9, 1966, this court overruled a motion for leave to appeal from that order of the Court of Appeals, and on May 23, 1966, the Supreme Court of the United States denied certiorari.
On May 17, 1965, the prisoner filed an original action in habeas corpus in this court seeking the same relief sought in the instant postconviction proceedings. On October 13, 1965, this court remanded him to custody for the reasons set forth in Freeman v. Maxwell, Warden (1965), 4 Ohio St.2d 4.
On May 25, 1966, the Common Pleas Court, without any hearing, dismissed the petition for postconviction relief. This was affirmed by the Court of Appeals. The cause is now before this court on a motion to certify the record.
Mr. John J. Corrigan, prosecuting attorney, and Mr. Leo M. Spellacy, for appellee.
Mr. James A. Catlino, in propria persona.
An indigent convicted defendant has a constitutional right to counsel on a direct appeal to the Court of Appeals from his judgment of conviction. Douglas v. California (1963), 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814. The failure of our statutes to provide therefor at state expense prior to the effective date of Section 2941.50(B), Revised Code, on November 11, 1965, can obviously not interfere with that right. There is no claim that the prisoner in the instant case waived that right to counsel.
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.
In the absence of a judicial determination that a prisoner knowingly and intelligently waived his right to counsel on an appeal to the Court of Appeals from his judgment of conviction, the judgment of the Court of Appeals either dismissing the appeal or affirming the judgment of conviction will not amount to an adjudication of any claims of error that were or could have been raised on that appeal. See State v. Perry, 10 Ohio St.2d 175.
For the foregoing reasons, the motion to certify the record is allowed, the judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court with instructions to appoint counsel to represent the prisoner on appeal from his judgment of conviction and to provide the prisoner at state expense with those portions of the transcript of the proceedings of the trial which such counsel deems necessary for prosecution of an appeal to the Court of Appeals that he may find to be appropriate. In view of the diligence of the prisoner in asserting his rights and on the assumption that such counsel exercises equal diligence, we have no doubt that the Court of Appeals will exercise its discretion to allow a motion for leave to appeal which such counsel may file.
Judgment reversed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.