251 N.E.2d 633 | Ohio Ct. App. | 1969
Petitioner, appellant herein, filed a petition for postconviction relief in the Scioto County Common Pleas Court from a conviction and sentence of that court. Counsel was appointed for the hearing in the trial court, based on indigency, a hearing held, and by entry of November 14, 1968, the trial court, after making a finding of fact and conclusions of law, found the petitioner was not entitled to relief, and dismissed the petition.
On November 25, 1968, the petitioner, acting in his own behalf, and without counsel, filed a notice of appeal, together with a precipe for transcript and docket entries. On the same date, he filed a motion in this court for the *22 appointment of counsel on appeal and for necessary records and papers to conduct his appeal. It is upon this motion this opinion is rendered.
We observe at the outset that right to counsel herein for such appeal is not constitutionally required by either the Ohio or federal Constitution. We agree with the following statement in Henderson v. State,
"The first paragraph of the syllabus of State v. Catlino,
"`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,
"However, the weight of authority is that the right to counsel guaranteed by the
To the authorities above quoted we would add Queor v. Lee,Commr.,
Prior to Henderson, it was held in Ohio in State v.Buffington, supra (
In Henderson, the view was adopted that State v. Catlino,supra (
Former Section
"(A) Where the petitioner is indigent, he may file with his petition an affidavit saying he is unable to employ counsel. If the court finds that the petition is sufficient on its face and is satisfied that the petitioner is unable to employ counsel, itshall appoint counsel to represent such petitioner both on his petition and on appeal if taken as provided by law." (Emphasis added.)
Section
"(C) Where a defendant who is found guilty of a felony files or attempts to file an appeal from such judgment or orderdenying relief therefrom under Section
Thus, if the petition is sufficient on its face and the petitioner is indigent, it is mandatory that counsel be appointed in the trial court for proceedings on the petition and on the appeal, if properly taken. The latter statute gives discretionary authority to the appellate courts therein mentioned to appoint counsel on an appeal from a denial of *24 relief in a postconviction proceeding. Inasmuch as counsel was appointed below for the postconviction hearing, we are not here concerned, nor do we decide, what the Legislature intended by the term "sufficient on its face" insofar as it relates to the appointment of counsel in the trial court.
The trial court, while appointing counsel for the hearing, did not appoint counsel for the petitioner on his appeal. The Legislature having evidenced an intention that such persons be represented on properly filed appeals, and this appeal being timely filed, we exercise our authority under Section
The appellant herein, acting as his own counsel, has also included in his motion a request that he be furnished the necessary records and papers to conduct his appeal. Upon examination of the record, we find that, at appellant's request, without fee, a transcript of the docket and journal entries and the original papers in the lower court have been filed in this court. Notably lacking, however, is a bill of exceptions setting forth the evidence received by the trial court upon which the judgment was based.
Unlike the conclusion reached as to a constitutional right to appointment of counsel on appeals from a denial of postconviction relief, we are of the view that the indigent appellant is constitutionally entitled, by virtue of the equal protection clause of the
"In Lane v. Brown, supra, at 483, the court reaffirmed the fundamental principle of Griffin v. Illinois,
In U.S. v. York,
Even prior to Long v. District Court of Iowa, supra
(
We find no express authority granted by the Ohio statutes, either to the trial court or to an appellate court, to furnish a bill of exceptions of the postconviction hearing on appeal from the denial of postconviction relief. Section
We note that Section
We cannot ascribe to the Legislature an intention to provide counsel for indigents in such appeals for what would be, for the most part, meaningless appeals. Such would be the result without a bill of exceptions. The most astute of counsel cannot demonstrate error from a record which exists only in a court reporter's stenographic notes. We find it significant that the present sections providing for appointment of counsel on appeal by the trial court and providing appeals to be under the criminal procedure were effective on the same date, to wit, December 9, 1967.
Located with Chapter 2953 of the Revised Code is Section
"The judge of the trial court in a felony case may, because of the poverty of the defendant, in the interest of justice, order the bill of exceptions and transcript, or either, paid from the county treasury in the manner provided in Section
We believe it to be a reasonable interpretation of Section
Counsel having been appointed herein, he may make application to the trial court for a bill of exceptions of the postconviction hearing at state expense.
Motion granted.
GRAY, P. J., and ABELE, J., concur. *27