Opinion
No. 40066
Decided June 7, 1967.
Criminal procedure — Appeal — Convicted indigent defendant — Right to appointment of counsel.
APPEAL from the Court of Appeals for Pickaway County.
On March 9, 1965, defendant, while represented by retained counsel, was found guilty of armed robbery by a jury. On June 24, 1965, defendant, on his own behalf, filed a motion for a new trial based on the ground of newly discovered evidence. The motion came on for hearing on August 13, 1965, at which time, on inquiry by the court, appellant indicated that he was aware of his right to counsel but desired to represent himself. During the hearing, a continuance was granted the prosecuting attorney to subpoena and interrogate the affiants to the affidavits filed by appellant in support of his motion. When the hearing was resumed on August 19, 1965, the appellant, after examining one witness, requested a continuance in order to obtain an attorney. This request was denied by the court. Appellant's motion for a new trial was overruled.
Appellant filed a timely appeal to the Court of Appeals from the order overruling that motion, and requested that court to assign counsel. Appellant, at the same time, filed an affidavit of indigency in the trial court, requesting a free bill of exceptions and assignment of counsel for his appeal from the denial of his motion for a new trial. The trial court found the appellant indigent and granted the motion for a free bill of exceptions. However, the trial court denied appellant's request for assigned counsel for the reason that the appellant "has already filed a notice of appeal, therefore, any appointment of counsel would have to be made by the Court of Appeals rather than by this court."
The Court of Appeals then also denied appellant's motion for assignment of counsel, and on January 17, 1966, the judgment of the trial court was affirmed.
This court granted leave to appeal on September 28, 1966, and appointed counsel.
Mr. Robert H. Huffer, prosecuting attorney, for appellee.
Mr. Ralph V. Thomen, for appellant.
In the instant case, appellant, an indigent convicted defendant, was denied counsel on his appeal as of right.
Under the doctrine enunciated in State v. Catlino, 10 Ohio St.2d 183, and Douglas v. California, 372 U.S. 353, a convicted indigent defendant has a constitutional right to court-appointed counsel at state expense on his appeal as of right to the Court of Appeals.
The trial court, having determined that appellant was an indigent, erred in denying his request that it appoint counsel for him for his appeal as of right.
The judgment of the Court of Appeals is reversed and the cause is remanded to the trial court for the appointment of counsel for appellant's appeal from the denial of his motion for a new trial.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.