Summary
In State v. Benton (1971), 27 Ohio St.2d 87, we held that "A convicted indigent defendant may not, in a postconviction proceeding, raise contentions that he was not informed of the procedure by which to appeal and of his right to court-appointed counsel for such an appeal."
Summary of this case from State v. LesterOpinion
No. 70-545
Decided July 7, 1971.
Criminal procedure — Postconviction proceedings — Matters arising subsequent to sentencing cannot be raised, when — Alleged errors reviewable on appeal.
A convicted indigent defendant may not, in a postconviction proceeding, raise contentions that he was not informed of the procedure by which to appeal and of his right to court-appointed counsel for such an appeal.
APPEAL from the Court of Appeals for Hamilton County.
On January 16, 1967, Beverly Benton, appellant herein, was convicted of burglary of an inhabited dwelling and was sentenced to a term of five to thirty years in the Ohio Penitentiary. Court-appointed counsel represented the appellant at his trial.
The appellant did not appeal the conviction to the Court of Appeals, either by a notice of appeal or by a motion for leave to appeal.
On December 12, 1969, he filed a petition for postconviction remedy, with the assistance of counsel obtained, according to the appellant's brief, by the appellant's sister. In the appellant's brief, he asserts:
"At trial, appellant, an indigent, was represented by court-appointed counsel whose conduct is the basis for appellant's allegation of denial of constitutional rights. Appellant, during trial, advised counsel that he wished to appeal if there was a guilty verdict. * * * Appellant, at that time did not have sufficient knowledge of appellate procedure to perfect his appeal and was thereafter incarcerated in the Ohio Penitentiary before he could secure legal assistance."
The errors specified as the basis for his petition were:
"The petitioner's constitutional rights were denied in that:
"1. Trial counsel did not file notice of appeal although petitioner requested him to appeal the decision.
"2. Trial counsel did not advise petitioner of procedure for appeal or the time for filing notice of appeal or that counsel would be appointed for indigent appellant.
"3. Petitioner was indigent at trial and could not retain counsel for appeal and had no personal knowledge that counsel would be appointed for appeal.
"4. Trial counsel did not request the court reporter's notes be transcribed to preserve the testimony of witnesses for purposes of appeal.
"5. Assistant prosecutor made false statements to petitioner's sister and friend, who were requested by the petitioner to obtain information regarding an appeal and obtaining a transcript of testimony. They were told by the assistant prosecutor that there could be no appeal and that they could not obtain a transcript of testimony. These statements were made to petitioner's sister and friend within the time when a notice of appeal could have been filed as of right and the court reporter was physically able to transcribe the notes and because of these statements they did not seek legal counsel or make other attempts to file notice of appeal or obtain a transcript of testimony.
"6. Petitioner was taken to the Ohio Penitentiary before he could assist himself in filing notice of appeal, make application for transcript of testimony or obtain legal counsel for appeal.
"7. Petitioner cannot now obtain a transcript of testimony because the court reporter is blind and out of the state and no other reporter can accurately transcribe the reporter's notes."
The state filed a motion to dismiss this petition, on the ground that the errors specified were matters which arose subsequent to the sentence.
On March 11, 1970, the Common Pleas Court sustained the state's motion to dismiss. Upon appeal to the Court of Appeals, where the appellant continued to be represented by counsel, that court affirmed the judgment of the Common Pleas Court.
This cause is now before this court pursuant to the allowance of appellant's motion for leave to appeal and an appeal as of right.
Mr. Simon Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, for appellee.
Messrs. Beers Colegrove and Mr. Donald F. Colegrove, for appellant.
The question presented is whether a convicted indigent defendant, who was not represented by counsel after his conviction during the period in which a notice of appeal could have been filed, may in a postconviction proceeding raise contentions that he was not informed of the procedure by which to appeal, and of his right to court-appointed counsel for such an appeal.
R.C. 2953.21(A) states:
"Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the Judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief." (Emphasis added.)
R.C. 2953.05 provides:
"Appeal under Section 2953.04 of the Revised Code, may be filed as a matter of right within thirty days after judgment and sentence or from an order overruling a motion for a new trial or an order placing the defendant on probation and suspending the imposition of sentence in felony cases, whichever is the latter. Appeals from judgments or final orders as above defined in magistrate courts shall be taken within ten days of such judgment or final order. After the expiration of the thirty day period or ten day period as above provided, such appeal may be taken only by leave of the court to which the appeal is taken. An appeal may be taken to the Supreme Court by giving notice as provided by law and rule of such court within thirty days from the journalization of a judgment or final order of the Court of Appeals in all cases as provided by law."
Dispositive of the question presented in this case, is the syllabus in State v. Perry (1967), 10 Ohio St.2d 175, which reads, in part:
"4. A prisoner is entitled to postconviction relief under Section 2953.21 et seq., Revised Code, only if the court can find that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution.
"* * *
"7. Constitutional issues cannot be considered in postconviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment, and thus have been adjudicated against him.
"8. The Supreme Court of Ohio will apply the doctrine of res judicata in determining whether postconviction relief should be given under Section 2953.21 et seq., Revised Code.
"9. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment."
One can readily observe from a reading of the facts, as alleged in appellant's postconviction petition, that the alleged errors raised therein deal with matters which arose subsequent to his sentencing. Those were matters which, in the words of Perry, "could have been raised by the defendant * * * on an appeal from that judgment." (Paragraph nine of the syllabus in Perry, supra.) By the decision which we render in this case today, we have not foreclosed the appellant from a review of the alleged constitutional errors which he has asserted. In the posture of this case, those errors may be raised by a motion for leave to appeal to the Court of Appeals. See State v. Sims (1971), 27 Ohio St.2d 79.
Regarding the appellant's claim pertaining to a transscript, in the absence of a showing as to why a narrative bill of exceptions could not be procured, and in the absence of any indication that an attempt was made to have someone else interpret the court reporter's notes, this contention is without merit. Moreover, in view of our statements in State, ex rel. Catlino, v. Clerk of Courts (1967), 9 Ohio St.2d 101, and State v. Sims, supra, until a motion for leave to appeal is sustained, there is no absolute requirement that a transcript be furnished.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN and LEACH, JJ., concur.