Opinion
No. 40451
Decided June 28, 1967.
Criminal procedure — Notice of appeal — Placed in prison mail by incarcerated appellant within rule — Notice forwarded to court after time for appeal elapsed — Overruling motion for leave to appeal error, when.
APPEAL from the Court of Appeals for Montgomery County.
Appellant was tried and convicted on charges of abducting a female for immoral purposes and armed robbery. The judgment of conviction was rendered and sentence imposed on March 5, 1958. Although appellant had been represented at the trial by court-appointed counsel, appellant was without counsel thereafter and until June 1966.
Appellant prepared a notice of appeal without the assistance of counsel. He delivered the notice of appeal to the appropriate penitentiary official on March 31, 1958 — four days before the time for appeal had elapsed. The penitentiary official, to whom the notice of appeal was entrusted, did not mail the document until April 6, 1958 — six days after it had been delivered to him. The notice of appeal did not reach the court until April 7, 1958 — three days after the time for appeal had elapsed. The "received" stamp of the prison mails on the document indicated that it had been received by the proper prison authorities before the statutory time for appeal had elapsed. On April 8, 1958, the appeal was dismissed for the reason that the notice of appeal was not filed in time.
In June of 1958, appellant again sought to have his case reviewed by filing a motion for leave to appeal. Appellant's motion for leave to appeal was denied on August 11, 1958.
Appellant did not appeal from either of the 1958 decisions of the Court of Appeals to this court. Apparently, however, he did file a motion for certiorari to the United States Supreme Court on October 10, 1958, but certiorari was denied on February 24, 1959.
On June 13, 1966, appellant, through counsel provided him without cost by the Ohio State University Legal Clinic, filed a motion in the Court of Appeals for reinstatement of his appeal or, in the alternative, to grant his motion for leave to appeal. The Court of Appeals denied the motion on July 16, 1966.
The cause is noe before this court on an appeal from the July 16, 1966, judgment of the Court of Appeals, pursuant to allowance of a motion to certify.
Mr. Lee C. Falke, prosecuting attorney, for appellee.
Mr. Gerald A. Messerman, for appellant.
Although Douglas v. California (1963), 372 U.S. 353, was decided after the judgment in the instant case became final, an indigent's right to court-appointed counsel at state expense on an appeal as of right is retrospective. Anders v. California, 35 L.W. 4385 (May 8, 1967); and Smith v. Crouse, Warden (1964), 378 U.S. 584 ( 192 Kan. 171, 386 P.2d 295).
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. In the opinion by Taft, C.J., it is stated, at page 184, that:
"If the prisoner had not been denied his right to counsel, he would have had a reasonable opportunity to file his notice of appeal within the time limited by statute * * *."
Paragraph two of the syllabus of Catlino states:
"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." Cf. State v. Perry (1967), 10 Ohio St.2d 175.
We then reversed Catlino's judgment of conviction and remanded the cause, so that the Court of Appeals could grant Catlino's motion for leave to appeal.
In the instant case, the appellant too was diligent, for he delivered his notice of appeal to the proper prison authorities four days before the time for appeal elapsed. Because of the "Received" stamp on the notice document, it was evident to the Court of Appeals that the notice had been delivered to the proper prison authorities before the appeal time had elapsed.
In such an instance, the indigent, but diligent, appellant is not required to show probable error to overcome the presumption of regularity of the proceedings under which he was sentenced. Otherwise, such an appellant, because indigent, would be in a less advantageous position than a nonindigent who, with counsel, would have a reasonable opportunity to file his notice of appeal within time. See Anders v. California, supra.
Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court for further proceedings.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.