Opinion
No. 71-659
Decided November 22, 1972.
Criminal procedure — Appeal — Court of Appeals — Dismissal of motion for leave to appeal — State v. Sims, 27 Ohio St.2d 79, not retroactively applicable.
APPEAL from the Court of Appeals for Lucas County.
Appellant, Jesse Bond, Jr., an indigent, was convicted by a jury of breaking and entering an inhabited dwelling at night. R.C. 2907.09. On January 23, 1969, he was sentenced to a term of five to thirty years imprisonment for that crime. Although appellant admittedly discussed the possibility of appeal with his court-appointed trial counsel, no notice of appeal was filed in his behalf within thirty days of sentencing as was prescribed by former R.C. 2953.05 (now Appellate Rule 4[B]). On March 3, 1969, 39 days later, appellant wrote to the sentencing judge, asking for a copy of the "warrants, indictments and notes of testimony" in all the proceedings against him and asking the court to permit him to proceed in forma pauperis in seeking to have his sentence "vacated and set aside." On May 17, 1971, appellant filed a motion for leave to appeal in the Court of Appeals for Lucas County, Ohio. On June 7, 1971, the motion was denied, without a hearing or findings of any kind.
On May 18, 1972, we granted appellant's motion for leave to appeal, solely upon the question of the applicability of State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87, and State v. Leroy (1972), 30 Ohio St.2d 138, 283 N.E.2d 136, to this cause and counsel was appointed to represent appellant before this court.
Mr. Harry Friberg, prosecuting attorney, and Mr. Joseph J. Hans, for appellee.
Messrs. Tyack, Scott Colley and Mr. Thomas M. Tyack, for appellant.
In State v. Sims, decided July 7, 1971, we held that:
"In the absence of evidence in the record upon which it could be determined that an indigent convicted defendant knowingly and intelligently waived his right of direct appeal and his right to court-appointed counsel for direct appeal prior to the expiration of the time in which such an appeal could be taken, a Court of Appeals must make such a factual determination before it dismisses a motion for leave to appeal."
In State v. Leroy, decided May 17, 1972, a majority of this court felt that the Sims holding should not be given retroactive application. Although the syllabus in that decision was phrased in terms of Willis Leroy's particular situation, the reasons underlying it pertain to every criminal cause in which the time for filing a direct appeal expired prior to July 7, 1971, the date of our decision in State v. Sims.
Further, while this appellant admittedly knew about appeal rights at the time of his sentencing, there is absolutely nothing before us to show that he told the trial judge, after his conviction, either that he desired to appeal or that he wanted the continued assistance of court-appointed counsel for that purpose.
The judgment of the Court of Appeals for Lucas County, denying the motion for leave to appeal, is accordingly affirmed.
Judgment affirmed.
SCHNEIDER, CORRIGAN, LEACH and BROWN, JJ., concur.
O'NEILL, C.J., HERBERT and STERN, JJ., dissent.