Opinion
No. 40720
Decided July 19, 1967.
Criminal procedure — Appeal — Convicted indigent defendant entitled to counsel — Request for counsel — Time for making.
APPEAL from the Court of Appeals for Summit County.
Appellant, Henry Talley, was indicted on a charge of first degree murder and on arraignment (April 8, 1966) pleaded not guilty. Trial was set for May 16, 1966.
Appellant was tried and, on June 13, 1966, a jury returned a verdict of guilty of second degree murder.
On June 21, 1966, a motion for new trial was overruled, and appellant was sentenced.
During the arraignment, trial and sentencing, appellant was represented by court-appointed counsel.
On July 7, 1966, appellant, in propria persona, mailed to the trial court (1) a notice of appeal, (2) a praecipe directing the clerk of court to prepare and file in the Court of Appeals a transcript of the docket and journal entries, and (3) a motion to require the state to furnish the cost of a bill of exceptions, an application for assignment of counsel, and an affidavit of indigency. They were stamped filed July 12. On July 18, he refiled the same documents which were stamped filed July 20.
The record does not disclose any action taken by the Court of Common Pleas on the application for the appointment of counsel or on the request for a bill of exceptions at state expense.
The bill of exceptions was filed in the Court of Common Pleas on September 6 and was signed, allowed and filed in the Court of Appeals on September 12.
The Court of Appeals journal entry, dated December 2, 1966, reads:
"An appeal on questions of law was lodged in this court on July 12, 1966, by the filing of a notice of appeal in the Court of Common Pleas of Summit County, Ohio. That notice of appeal sought to bring to this court, for review, a judgment of guilty of murder in the second degree rendered upon the verdict of a jury, and the subsequent judgment entered thereon on June 23, 1966. Accompanying the notice of appeal was a motion to require the state of Ohio to furnish the cost of the bill of exceptions, and the assignment of counsel. At the trial in the Court of Common Pleas this appellant, Henry Talley, was assigned very capable counsel to conduct his defense. There is nothing shown in the record before us that such counsel failed to perform their duty. Upon sentence, no request for appointment of counsel for the purpose of appeal was made to the trial court, as required by Section 2941.50 (B). No request was then made for a bill of exceptions for the purpose of pursuing an appeal. Appeals from a conviction for felony are governed by Chapter 2953, Ohio Revised Code. Nowhere in the Ohio Revised Code is there a provision that upon application, or otherwise, the Court of Appeals has the authority, or the power, to appoint counsel for an indigent prisoner, or to order, in a situation such as confronts us, a bill of exceptions. This court, after a review of all of the original papers and journal entries filed in the transcript, finds no errors apparent on the record. The appeal herein is dismissed for the failure of the appellant herein to comply with the terms of the statutes. Appeal dismissed."
The allowance of a motion for leave to appeal brings the cause to this court for review.
Mr. James V. Barbuto, prosecuting attorney, and Mr. Gustav Goldberger, for appellee.
Mr. Gerald A. Messerman and Mr. Maurice Kelman, for appellant.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court on authority of Douglas v. California, 372 U.S. 353, with instructions to appoint counsel to represent appellant on appeal from his judgment of conviction, and to provide him at state expense with those portions of the transcript of the proceedings of the trial court which such counsel deems necessary for prosecution of an appeal that he may find to be appropriate. State v. Catlino, 10 Ohio St.2d 183.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.