Gairson v. Gladden

425 P.2d 761, 247 Or. 88, 1967 Ore. LEXIS 454

Opinions

O’CONNELL, J.

This is an appeal by petitioner from an order dismissing his petition seeking relief under the Post-Conviction Hearing Act.

Petitioner was convicted and sentenced to life imprisonment for the crime of murder in the second degree. He was represented by retained counsel at trial. After the judgment of conviction was entered, petitioner’s attorney was advised that petitioner desired to appeal but that petitioner had no money to prosecute an appeal. Petitioner’s attorney did not advise him that an indigent defendant was entitled to court appointed counsel on appeal. It is contended that the failure to so advise petitioner deprived him of his constitutional rights. This contention is clearly without merit.

An acensed has a constitutional right to be informed that he is entitled to be represented by appointed counsel in the trial of the charge against him. He has no constitutional right to an appeal and therefore if the legislature should see fit it could provide that upon appeal no one is entitled to counsel.

① However, if counsel is permitted on appeal, then the equal protection clause of the Fourteenth Amendment requires that the indigent be given substantially the same opportunity to employ counsel as a defendant who has the money to do so.

Petitioner takes the position that an indigent defendant not only has this constitutional right of equal protection, but also the right, apparently under the due process clause of the Fourteenth Amendment, to have the state inform him that he is entitled to appointed counsel on appeal. Since the right to appeal is merely a statutory right the assistance of counsel necessary to implement that right can be of no greater magnitude and does not rise to the level of a constitutional right under the due process clause of the Fourteenth Amendment, although as we have indicated above it may, under the proper circumstances, give rise to a constitutional right under the equal protection clause of the Fourteenth Amendment.

When an indigent informs the court of his need for counsel on appeal, he is entitled to have counsel appointed. But neither the court nor any other agency of government is required to inquire of a convicted defendant for the purpose of determining whether he intends to appeal and if so whether he has the means to employ counsel.② Cases in other jurisdictions have reached this same conclusion.③

Judgment affirmed.

State v. Gates, 230 Or 84, 368 P2d 605 (1962); State v. Jairl, 229 Or 533, 368 P2d 323 (1962); State v. Foster, 229 Or 293, 366 P2d 896 (1961); State v. Endsley, 214 Or 537, 331 P2d 338 (1958); State v. Berg, 138 Or 20, 3 P2d 783, 4 P2d 628 (1931).

It has been suggested that even where counsel is not requested defendant may be entitled to appointed counsel if “a responsible State official has actual knowledge that the defendant is indigent and desires to appeal his conviction.” Pate v. Holman, 341 F2d 764, 773 (5th Cir 1965). It is not necessary for us to decide whether in such a case there is a constitutional right to be informed that counsel is available at state expense.

See, McIntosh v. Commonwealth, 368 SW2d 331, 336 (Ky App 1963); State ex rel Dych v. Bomar, 213 Tenn 699, 378 SW2d 772, 775 (1964).

But cf., Doyle v. United States, 366 F2d 394 (9th Cir 1966); Wainwright v. Simpson, 360 F2d 307 (5th Cir 1986).