*1 Argued July April 9, 1968, 30, 1969 affirmed Respondent, v. SHIPMAN, GLADDEN , Appellant.

453 P2d 921 *2 Attorney Kalil, General, B. Assistant Salem, Helen appellant. argued on With her the brief the cause Attorney Thornton, Y. General. was Robert *3 argued Lonergan, the Portland, R. cause Howard respondent. filed brief and a and Justice, Chief Before Perry, McAllister, and Rodman,* Denecke O’Connell, Goodwin, Sloan, Justices. j.

McAllister, proceeding post-conviction in which is a the This granting appeals trial court from an order the state delayed appeal. questions The raised petitioner are a petitioner’s (1) retained failure coun- the whether petitioner appeal deprived timely file a notice sel to guaranteed by process right of law to due the of his to Amendment the United States Constitu- Fourteenth Hearing (2) Post-Conviction whether the and tion, * participate Rodman, J., not in the decision of this case. did appeal granting delayed of a the authorizes Act rectify of that constitutional order to the violation right. jury receiving was convicted

Petitioner concealing property and sentenced to and stolen years. represented penitentiary for three He at attorney trial who retained recommended agreed The attor- the case. ney timely prepared appeal, and served a notice of neglected admittedly depriving but it, file thus petitioner right appeal. of his

In landmark ease Powell Alabama, principle Ct 77 L 53 S ed capital was established that denial to an accused in right infringes process case of the due framing of the clause Fourteenth Amendment. In issue in that involved the court case said:

“* ** inquiry per- The sole which we are mitted to make is whether the federal Constitu- (citations omitted); tion was contravened and as already suggested to that, we confine as ourselves, inquiry to whether the defendants were in denied substance of counsel, and if so, infringes process whether such denial the due clause Fourteenth Amendment.” L ed at 162. again question

And the court restated the as follows: * “* * question, however, which it is our duty, power, within our decide, whether of the assistance of the denial counsel contravenes clause of the Fourteenth Amend- ment to the federal Constitution.” 77 L ed at 166. *4 n . phrased question its The court resolution the only process in terms. It said: due light of

“In the the facts outlined in the fore- 196

part opinion ignorance illiteracy of this and —the yonth, the their circumstances defendants, the imprisonment public hostility, of surveillance and the the close military of the defendants the fact their friends- and families forces, the were other communication with them all in states and they necessarily difficult, and all that stood above deadly peril of their lives—we think the failure give time trial court to them reasonable and opportunity to was a secure counsel clear denial process. due assuming passing inability, and that, “But their opportunity as given, employ had if been even counsel, evidently did assume, trial court opinion that, under the we circumstances are necessity just of counsel was so stated, vital imperative failure the trial appointment of to likewise a an effective counsel was make within denial the mean- * * *” ing (Em- Fourteenth Amendment. supplied.) phasis L ed at 171-172. capital to counsel in cases established Alabama was extended Gideon v. Wain- in Powell v. wright, 9 L ed 2d 799, 83 S Ct 372 US (1963) noncapital cases. The ALR2d court, Brady, referring Betts earlier case of L 1252, 86 ed 1595 said: 62 S Ct * * appoint It was held that refusal indigent charged for an defendant with necessarily felony did not violate Due Process Amendment, Fourteenth which for Clause given only the Court deemed be the reasons * * *” provision. applicable federal constitutional 2d at L 802. ed expressly Brady overruled Betts v. The court re- principles declared Powell v. Ala- affirmed L ed 2d at 805. bama. See

19? right trial court established to counsel in the Wainwright in v. Powell v. Alabama Gideon stage prose appellate to criminal extended by Douglas cution 83 S Ct California, (1963). opinion 2d 814, 9 L ed It is clear that the Douglas part in on is based at least California the due clause of Amendment. the Fourteenth The court said: problems are not “We here concerned with

might prep- from arise the denial of counsel for the petition discretionary aration of a or for manda- tory beyond stage appellate proc- review in the presented ess at which the claims have once been lawyer by We are passed appellate upon a an court. dealing only appeal, granted with the first right (Cal poor as a matter of to rich and alike 1237), Penal Code from con- §§1235, a criminal viction. We need not now decide whether Cali- provide fornia would have to counsel for indi- an gent seeking discretionary hearing from the Cali- Supreme fornia Court after the District Court Appeal (see had sustained his conviction Const, Cal Appeal, 29), Art VI, §4c; Rules on Cal Rules 28, appointed or whether counsel must be for an indi- gent seeking appellate review of an affirmance of right appeal his conviction in this Court as of by petition for a writ of certiorari which lies appropriate within the Court’s discretion. But it is consistently observe that State can, with the provide Amendment, Fourteenth for differences so long as the result does not amount a denial of ** ®” process or an ‘invidious discrimination.’ (Latter emphasis supplied.) 9 L 2d ed at 814. 9 L ed 2d at 817. ‹ dissenting, J., See, also, Harlan, ‹ holding indigent right that an “In has an absolute appointed counsel on conviction, state criminal rely appears Equal the Court both on the Protection Clause guarantees procedure and on the fair inherent Due Amendment, Process Clause of the Fourteenth with obvious ” ‘equal protection.’ emphasis on 9 L ed at 2d 817. must afford not decide whether a state need

We all criminal cases. as a matter of an Oregon always point has It is sufficient out part provided appellate of its criminal as a review procedure. › Court The statement of the pertinent here. in Illinois is about review “* ** Appellate now become review has system finally integral part of the Illinois trial *6 guilt adjudicating of defendant. the or innocence a stages proceedings Consequently all of the at protect Equal Protection Process and Clauses Due petitioners persons invidious discrimina like from * * *” Illinois, 12, tions. Griffin (1956). L at 585, 891, S 100 ed 898-899 Ct process right of counsel to assistance The representation. requires pro In more than forma emphasized supra, that the it Alabama, Powell v. of entitled to the “effective” assistance accused was S California, 738, In Anders 386 US counsel. (1967), L court said: Ct ed 2d 493 requirement of substantial “The constitutional equality process only where and fair can be attained counsel acts in the role of an active advocate opposed of amicus of his as to that client, behalf procedure letter and the it curiae. The no-merit dignity. triggers and can with should, reach that do not Counsel conflict, honor and without be of to his and to the court. client His more assistance support requires that he his client’s role as advocate # # *” ability. appeal to of his 18 L the best ed 2d at 498. Wade, States v. 388 US 87 Ct

In United S emphasis L 2d 1149 was on 1926, 18 ed diligent representation by for counsel erucial need › General Oregon 1851, pp 255, 257; Deady, General Laws p Oregon 1845-1864, 224, 226. §§ Laws stages prosecution, pretrial the court of the but at the recognized present at same crucial need was “ stages proceedings.” of the The all ‘critical’ said:

“* * * jn recognition these realities prosecution, our have con- modern criminal cases guarantee apply strued the Sixth Amendment stages proceedings. guarantee ‘critical’ The prosecutions, all reads: ‘In criminal accused enjoy shall ... to have the Assist- (Emphasis sup- of Counsel Ms ance plied) defence.’ wording guarantee plain this thus encompasses counsel’s assistance whenever neces- ” sary meaningful assure ‘defence.’ L ed 2d at 1156. Douglas v.

Since has established California appellate stage pro review as a critical of the criminal cedure we conclude that due will not tolerate deprivation solely by review caused gross neglect perform counsel. The failure simple procedure timely filing a notice of required is not the “effective” assistance *7 diligent advocacy Powell nor Alabama, v. re quired by Anders v. The failure of coun California. timely appeal to file a of sel notice after he has been agreed requested incompetence or do so is as a process. matter of and law a denial of due This is equally negligent true whether the counsel has been appointed or retained. The “invidious discrimination” is not who between the rich can hire counsel and the poor appointed, for whom counsel must be but between represented by competent who are those counsel and prove grossly those incompetent whose negligent. culpably poverty Discrimination on account is not only discrimination that violates the Fourteenth by Dowd v. illustrated United This is Amendment. L ALR2d 215, 19 95 ed 206, 262, Ct States, 71 S US (1951). convicted one was In. that ease Cook to life im court, in sentenced murder an Indiana was peni immediately prisonment in the state and confined tentiary. to file were His efforts a notice acting prison pursuant the warden frustrated (1) Indiana dis The held rules. Court against he had criminated because had “never Cook against judgment him as he same review of the sup right in 1931 for would have had as of but pression papers,” (2) at 219, of his 95 L ed discriminatory ap . statutory “a denial peal Equal is a violation of Protection Clause L at The the Fourteenth Amendment.” 95 ed 218. court said: *

“* « precludes Fourteenth Amendment keeping respondent imprisoned if it Indiana from depriving persists type him of the ** *” generally those afforded convicted crime. L ed at 219. equal protection is Discrimination which denies fundamentally consequently unfair and is also a de process. of due This is from the fact that nial evident Douglas v. v. cases such as and Anders California protection equal rested on both and due are California grounds. process Even the landmark decision in Grif 12, L Illinois, 585, 100 351 US 76 Ct ed S fin (1956), on ALR2d 1055 based both Fourteenth guarantees pro equal Amendment Coppedge In States, tection. United 369 referring L 2d 82 Ct 8 ed S said: v. Illinois Griffin ** found the We failure of the State provide appellate' indigents review for

20.1 noncapital such review was available cases, when purchase transcripts, for all defendants able to ‘invidious discrimination’ inconsistent with the equal guarantees protection of due * * *” Fourteenth the laws 8 Amendment. 18. L ed 2d at Footnote Wainwright Simpson, (5th F2d In Cir. 1966), court-appointed without consult- counsel, ing obtaining with or of his client, consent failed the conviction. court said: Florida, “In as in Illinois, review has integral part sys-

now become an of the state trial finally adjudicating guilt tem for or innocence appealing of a defendant. One from conviction for represented by crime must be counsel if his meaningful. is to be However his laudable motive, court-appointed Simpson counsel for had no au- thority, consulting obtaining without with or deliberately forego Simp- client, consent his appeal. son’s new move trial or to proved so, he did counsel When himself ineffective. completely More, he abdicated his function and de- prived Simpson any of the aid of at stage proceeding.” critical the criminal 360 F2d at 309-310. United rel.

In States ex Maselli v. Reincke, 383 1967), (2d F2d 129 Cir. case in which retained appeal, counsel failed to file a notice of the court said: representation ‘horribly “If counsel’s so in ept’ faithfully legal as to amount duty to ‘a breach his represent his client’s interests,’ Ken nedy (5 States, v. United 259 F.2d 883, 886 Cir. 1958), denied, cert. 359 U.S. S.Ct. 1126, 3 L.Ed.2d 982 has there been a lack of com pliance with the fundamental fairness essential to process.” 383 F2d at 132. In a case in which retained counsel filed a notice through appeal, thereafter but culpable either negli-

202 appeal permitted genee or malfeasance intentional granted of Illinois Court dismissed, to he language delayed following appeal. from the exposition opinion modern rule: of the is an excellent system litigation representative of “For a most circum- it self-evident that under function, is of acts their stances clients must he bound the self-evident lawyers. equally it that is However, application legal proposition a mechanical this commonly repugnant can to harsh results lead (See justice play. and fair Justice held notions Co.) Railroad Black’s dissent in Link v. Wabash in a criminal results can even harsher These suit the a civil one since in the latter case than theory, malpractice aggrieved has, ac- client damages, attorney against tion former his for while attorney no his client’s lost can restore lib- * * * erty. consequences find the dismissal “We significant, here most while per is not in a case se constitutional criminal People Douglas (see of Cali dimension v. State 353, 814, 372 83 9 L.Ed.2d 365, U.S. S.Ct. fornia, 811, subject 819), any itof to the due- denial equal-protection guarantees process of the Fed Moreover, eral and State constitutions. recent de implemented right, providing cisions have indigents this competent appointed are entitled to coun (Douglas California), sel on v. even where (Milani guilty pleas made Illinois, were below v. 702), 874, 17 12, 386 87 S.Ct. L.Ed2d and to U.S. transcripts (Griffin trial free record. v. People of Illinois, 351 State U.S. 76 S.Ct. 891.) L. 585, 100 Ed. These decisions courts’ reflect providing any concern with defendant who so can at least desires of obtain one full review * * *” People (Ill. conviction. his v. Brown 1968) 235 NE2d 565. delayed appeal ap- in which a cases Other other granted propriate has relief been a convicted de- timely has failed retained counsel fendant whose following: appeal include the Leven- file a notice of Kinsey (1st 1968); F2d 441 thal v. Cir. Gavin, (M.D. Wainwright, 1965) (appeal Fla. 251 FS consent); client’s dismissed retained counsel without (D.C. App., Ct. States, Hines United A2d 1968). involving appointed For another case (8th States, see Williams v. United 402 F2d 1968). Cir. culpable negli

We hold that because of the gence petitioner deprived of his counsel of his *10 process. Fourteenth Amendment to due Since lacking criminal state’s would found be permitted deprivation fundamental if fairness it appellate culpable neglect review the of counsel, provide remedy adequate must state a to restore impaired right. Fortunately, Oregon pro has procedure part vided a such as of its Post-Conviction Hearing post-conviction Act. ORS 138.530directs the grant court to relief when it is established that there has been: “A proceedings substantial denial in the re- sulting petitioner’s appel- or conviction, in the petitioner’s rights

late thereof, review under the Constitution of the United States, under the Oregon, Constitution State or both, and which denial rendered the conviction void.” granted nóte that relief is to We be for a denial of rights constitutional in either appellate trial or the filing court. think the We the notice of is part though review, even the notice, administrative as an is matter, filed in the trial court. appropriate are also satisfied that We unless relief granted petitioner’s the denial of rights is that oc- in this will curred case render his conviction void. finding the trial court in the

We concur Hearing Act authorizes the that the Post-Conviction necessary rectify delayed appeal granting of a when rights. denial of constitutional ORS a substantial may provides court the relief which a 138.520 grant includes “* ** release, new modification trial, may proper be such other as sentence, and relief ** *” just. (Emphasis supplied.) and may proper phrase relief as be “such other just” meaning conveys as which 34.670, the same ORS corpus dispose party “to directs habeas may require.” justice of As the case as the law and pointed Gladden, 213 in Landreth v. Or 205, out we phrases 324 P2d these should construed broadly purpose of remedial the stat achieve the utes. delayed

Although the act not mention a does remedy inc intended such to be the drafters luded. ﬁ We legislature pro think the also intended to delayed appeal cases where such a rem vide a those just.” edy “proper would be to The alternatives grant discharge or to him a new trial, defendant standpoint proper from the be, of which would either *11 judicial result. If de administration, less desirable provided on merits is with an fendant now position as if his counsel had will in the same he be timely original appeal. notice of filed the judgment of the trial court is affirmed.

The concurring. specially DENECKE, J., my opinion specially to state that in I concur only can invoked when there is Due Process Clause ﬁ Oregon Postconviction-Hearing Act, Neil, and Collins 337, at 343-344. Or L Rev applicable state action. Amendment The Sixth is made only through to the states the Fourteenth Amendment. provides: “[N]or The Fourteenth Amendment any shall deprive any person liberty, prop State of life, or erty, process requisite without due law.” I find the present state action in the instant case. Such action continuing consists of the state to confine the defendant refusing grant appeal although the defendant an timely attorney the defendant ordered his appeals complied and the on statute was not with be Shelley error cause of defendant’s counsel. Kraemer, 334 68 S Ct 92 L Ed 1161, 3 (1948). ALR2d 441 dissenting. J.,

PERRY, C. agree majority I am unable to with the that a question federal constitutional is raised under the facts of this ease.

The Fourteenth Amendment to the Constitution applicable, States, United so far as reads as follows: *

“® * any No state shall make or enforce abridge privileges law which shall ties or immuni- any citizens of the States; nor United shall any deprive person liberty, prop- State of life, * * erty, without due of law; quite reading It is from cleár mere of the above necessity amendment, without the of citations of authority, prohibition against that this- amendment is a action. state

The thrust the decisions of Court process requires is -that the United States indigent rights defendant shall have the same before enjoyed by person that is law “of means”, and action state found in the failure of the state

206 perfecting necessary provide means indigent is appeal af- carrying out of an pay means. for these is one who able forded Douglas California, v. in State This is disclosed L 2d 811 9 ed 814, 83 S 353, 355, 372 Ct US language quotes approval from which with Griffin People 19, S Illinois, 76 Ct 12, 351 US v. State 891, 100 L ed 55 ALR2d 1055: 585, “ * * ‘=!i justice equal no where There can be enjoys depends appeal on a man of an the kind the ” money has.’ amount he supra, Douglas Again 9 L v. State California, in p. 2d at 813: ed *

“* * Illinois, 12, In v. 351 US Griffin 1055, ALR2d we held 891, 585, L ed that a State S Ct grant may not review against way as to discriminate some con- such a poverty. of their defendants on account victed Washington, Draper 2d 899, L ed as There, transcript on was in to a free not Here the issue whether an indi- issue. gent appeal. crimination the assistance of counsel on shall be denied evil In either case the is the same: dis- indigent. against For there can justice equal the kind of an no where be man money enjoys ‘depends on amount of he (351 supra 19).” p. Illinois, at has.’ US Griffin again Anders v. California, 738, 745, And 18 L ed 2d 493, 87 Ct the court S stated: penniless procedure will assure “This defend- rights oportunities appeal— the same on ants as nearly enjoyed practicable isas are those —as

persons in similar who are situation but who are private retention of afford the able to counsel.” agree majority I am able to with that the time *13 appeal for is a for critical time the assistance of coun- sel, that the failure of counsel to file within the statutory time amounts to ineffective assistance I but am counsel, unable ascertain what relevance this has to the facts this case. petitioner facts in case that the

The this are had employed agreed his own counsel and his counsel had perfect appeal, through neg- but his counsel’s statutory appeal passed. lect the for time Wherein prevent petitioner’s then did appeal? action state showing any petitioner way There is no inwas lacking right appeal per- in a to an or the means of fecting it. only logically given answer then that can may provide orderly

is, while state for the dis- patch by setting of cases a reasonable time which appeal, it cannot enforce that statute in criminal simply cases. This means that an in criminal right. rejected cases is a matter of This view was by this court in Gairson v. Gladden, Or (1967). P2d language

While of the Illinois Court People Brown, 39 Ill2d NE2d involving case a direct attack, not a collateral attack, upon judgment, observed the concern of the Su preme provide Court the United States to “that any defendant sowho desires can obtain at least one appellate full review of say his conviction,” it did not this was unlimited. Nor did the Illinois court find a upon federal constitutional violation which to its base but based might decision, its decision on what policy, be considered a desirable social as the matter lay appellate within the discretion of the court. filed within Brown the notice

In statutory period was dismissed later the case prosecution. The for court lack p. 565: 235 NE2d at stated, * * “* mitigates itself This distinction in agency inflexibly against applying rule this rights in criminal of defendants waive substantive adhering against mitigation prosecutions. Further application from rule stems this to an inflexible the realization of an action dismissal prosecution is within discretion want hearing right to reinstate likewise court, with the (Combs judicial being a matter discretion 101). Ill. Steele, 80 ** judicial keeping attitude, In with this *14 exceptional light sur- of circumstances in the and rounding representation ap- at the the defendant’s strong principally pellate inference that the level, prosecuting lawyer of his had no intention his proper appeal, not a one hold instant case is we the general application that a client is of the rule for lawyer. or failure to act of his the acts bound holding, we find it irrelevant whether the In so attorney appeal, paid in for the since the was proper remedy nonpayment his would on event from the to move to withdraw ease rather been have thereby forfeit defendant’s no action than take rights.” appeal majority cited find a decisions con-

Other indigency denial in the the convicted stitutional preventing appellant, action or state defendant from exercising statutory rights. his (2nd Reincke, v. 383 F2d 132

In United States cry 1967), in the facts a case which out cir., relief, for retained had at the the defendant counsel trial. After advised his retained- he counsel of conviction his de-

209 learned, appeal. retained counsel he to his sire "When appeal, resigned he to finance the was without fluids indigent informing an the defendant that as without appeal. he This would be furnished counsel through knowledge right appeal lack of to appointed counsel forms the basis the deei-. opinion (p. 134) clearly sion. Note 7 of the discloses this: arguable, though point “It is also not was appeal

raised on this that and we not it, need decide drawing a distinction between cases in which expressly on the assistance was e.g., requested of the State, Pate 341 Holman, v. (5 1965), F.2d 764 cir. those which no such e.g., request sen v. Bjorn made, was ex United States rel. (2 1966), LaVallee, F.2d cir. no permissible longer light Court’s emphasis in of Arizona, Miranda State 384 U.S. (1966) 436, 473, Ct. L. 2d S. Ed. upon whether importance advising defendants, all they appear poor, knowledge rich or ignorant, right of their able constitutional receive the assistance of counsel from the onset stage accusatory proceedings, in criminal right which also extends, course, to the Douglas stage, State California, 372 U.S. (1963).” 814, 9 L. Ed. 2d 83 S.Ct. wrongful Thus state action found lie party failure the court advise of his whether he had the financial means or not. *15 rejected This view also Gairson v. Gladden, supra. authority Reincke cannot be considered as for delay holding paid filing timely counsel in right. is the denial a constitutional agree majority with I can that the expressed has United States Court concern person view that a with the convicted should have at 210 they point ever said appeal, no have but at

least one may unqualified enforced is an this through against Fourteenth Amendment. the states contrary. quite opinion v. State to the Anders is Each L18 ed 2d 738, 1396, Ct 386 US 87 S California, (1967); S Bosler, 258, 386 US 87 Ct 493 v. Swenson Shockey (1967); Illinois, v. 375 ed 2d 18 L 33 996, Douglas (1963); 11 2d 43 v. L ed 22, 83, 84 S Ct US People 9 L 814, 353, 83 S Ct California, US Wainwright, (1963); 335, 2d 811 Gideon v. ed (1963). 799, 2d ALR2d 733 9 L S Ct ed upon placed burden

The between the difference indigent state retains counsel for when the state upon procure placed person able and. the burden ably is set forth United States ex his own counsel Handy, (C.A. rel Darcy 3), 407, 425-426 203 F2d approval Bomar, in Davis v. 344 F2d cited with (6th 1965): cir,

“ concept of contained ‘The law unquestionably in- the Fourteenth Amendment right of counsel volves the have assistance for ment, and its command in this a criminal one’s defense in case. amend- only is directed action a state however,

regard accordingly is through deny that the state its officers shall not defendant in a criminal case the effective may for his assistance counsel defense. This well obligation impose upon through a definite the state competent appoint its courts counsel indi- gent in criminal cases. There is, defendants how- Judge pointed Hudspeth, as Huxman out in ever, McDonald, Cir., 1941, 120 F2d Warden lacking 968, “a between vast difference effec- competent being tive assistance de- right to have nied assistance effective competent only It counsel.” is the latter for which responsible, being normally the former the state *16 responsibility defendant who se- the sole * * * (Emphasis supplied.) lected his counsel. “ by a defendant to counsel is retained ‘When represent as an officer in no him in a criminal case he acts sense state. For while he is an of- the allegiance court his is to his client ficer the ordinarily diametrically op- whose interests are necessarily posed to those of state. It follows the any incompetency lack of skill or of counsel imputed must in these circumstances be de- employed him rather state, fendant the than .who becoming thus those of his client acts recognized accepted such so as the court repudiates by making unless the defendant known to lack of concurrence in them.’ them objection at the time his to or ” recently Supreme 26, 1969, As as March Court of approval Darcy Handy, supra, with Tennessee cited supra. Bomar, and Davis v. ex rel State Robert E. — Murray Henderson, Richmond v. C. Warden, Tenn 263. —, 439 SW2d

These cases alone have considered the burden of process placed upon Federal due state where there no prevent has been action affirmative the state to exercising privileges granted a defendant from persons. all my opinion

In this court attempt should not envisage Supreme the future actions Court of impression the United States leave the that its de- day compelled by this cision made Court. provided right the state

Since and way prevented or no misled the defendant to his detri- I am unable to ment, discover wherein defend- the. rights him. constitutional ant’s were denied judgment reverse the I would of the trial court. dissenting. O’CONNELL, J.,. arguing present is no basis ease there In the

;' deprived of his accused was indigency. deprived of review of his He because *17 timely by simply to his counsel failed this court because appeal. ,a notice of file 684, 913, 14 S Ct Durston,

McKane v. 153 US by appellate (1894) L Ed holds that a review judgment final criminal case is not the a necessary process of element of due law. That case has not overruled. Our own cases are to the been e.g., See, Gladden, 88, same effect. Gairson 247 Or (1967). 425 P2d 761

Douglas v. California, 372 US 83 S Ct 814, (1963); Lane Brown, 9 L Ed2d 372 US (1963), L 768, 9 Anders v. S Ct Ed2d Cali L 1396, 18 87 Ct Ed2d 493 fornia, 386US S by majority, upon contrary. relied the are not to the merely They appeal procedure provided hold that is if equally it made to must be available the rich and the upon poor.' equal protection decisions These rest the they of the Fourteenth Amendment; do not hold clause appellate necessary satisfy that review is the due process requirement of the Fourteenth Amendment. majority

Apparently accepts ap- view that judgment pellate of a review conviction is not a necessary legis- element that .of due entirely assembly ap- could eliminate lative criminal reasoning peals. must although that be, then, The pnce.it may wholly appellate be review abolished, is legislature granted the state must, as a matter take such law, of‘constitutional additional action as necessary all to see that is defendants, whether rich right poor, not lose their or do through through rights their ignorance of their own their attorney, negligence of their negligence or the own to act under failure state’s appointed The or retained. majority to be is deemed circumstances these meaning Fourteenth within “state action” Amendment. enough reasoning not

According it is to this counsel—the state has that the accused to see state carries out his duties that must also see necessary timely appeal. it is is perfecting This, said, process. satisfy requirements of due in order reasoning supported can be that this It me seems only premise must af- upon that the accused be right as a review matter of due forded saying, majority appel- process. effect, safeguard important to the accused’s sois late review given enough rights, counsel, not he but it is if assured the he de- must be that he *18 important, is this it review is If sires it. process necessary of due the state could element might interpret so our own it. We con- not abolish (Oregon §10), I, Article Constitution, but stitution nothing compelling us to there take the we do until position majority present takes case. which adopted if the accused now was not the view Under right ap- had that he his counsel informed give inform peal, him or would have him the state directly contrary delayed appeal. this is Since to Gair- P2d 88, Gladden, 247 Or son v. overruled. should

case majority has been driven to its mis- I think interpretation of the clause of the Four- provi- “due course of law” Amendment teenth Oregon § Constitution, Article I, because sion it finds abhorrent idea that a man could lose the through I, no fault of his own. too, spectacle find it distasteful, but I think that is for legislature and not for us to correct this defect procedure. in bur criminal

It tois be borne in mind that I the view take does deny not relief to an accused who asserts that judgment of conviction was void because his constitu- rights procedure leading tional uj) were violated in the judgment. post-convic- In that case he is entitled to tion relief under OES 138.510 to 138.680. J.,C. concurs in this dissent.

Perry,