Shipman v. Gladden

453 P.2d 921, 253 Or. 192, 1969 Ore. LEXIS 444

• Court: Oregon Supreme Court
• Decided: April 30, 1969
• Status: Published

Opinions

McAllister, j.

This is a post-conviction proceeding in which the state appeals from an order of the trial court granting petitioner a delayed appeal. The questions raised are (1) whether the failure of petitioner’s retained counsel to timely file a notice of appeal deprived petitioner of his right to due process of law guaranteed by the Fourteenth Amendment to the United States Constitution, and (2) whether the Post-Conviction Hearing Act authorizes the granting of a delayed appeal in order to rectify the violation of that constitutional right.

Petitioner was convicted by a jury of receiving and concealing stolen property and sentenced to the penitentiary for three years. He was represented at the trial by a retained attorney who recommended an appeal and agreed to appeal the case. The attorney timely prepared and served a notice of appeal, but neglected to file it, thus admittedly depriving petitioner of his right to appeal.

In the landmark ease of Powell v. Alabama, 287 US 45, 53 S Ct 55, 77 L ed 158 (1932), the principle was established that denial to an accused in a capital case of the right to counsel infringes the due process clause of the Fourteenth Amendment. In framing the issue involved in that case the court said:

“* * * The sole inquiry which we are permitted to make is whether the federal Constitution was contravened (citations omitted); and as to that, we confine ourselves, as already suggested to the inquiry whether the defendants were in substance denied the right of counsel, and if so, whether such denial infringes the due process clause of the Fourteenth Amendment.” 77 L ed at 162.

And again the court restated the question as follows:

“* * * The question, however, which it is our duty, and within our power, to decide, is whether the denial of the assistance of counsel contravenes the due process clause of the Fourteenth Amendment to the federal Constitution.” 77 L ed at 166.

. ■ The court phrased its resolution of the question only in due process terms. It said:

“In the light of the facts outlined in the forepart of this opinion — the ignorance and illiteracy of the defendants, their yonth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces, the fact that their friends- and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives — we think the failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process.

“But passing that, and assuming their inability, even if opportunity had been given, to employ counsel, as the trial court evidently did assume, we are of opinion that, under the circumstances just stated, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of counsel was likewise a denial of due process within the meaning of the Fourteenth Amendment. * * *” (Emphasis supplied.) 77 L ed at 171-172.

The right to counsel in capital cases established in Powell v. Alabama was extended in Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733 (1963) to noncapital cases. The court, referring to the earlier case of Betts v. Brady, 316 US 455, 62 S Ct 1252, 86 L ed 1595 (1942), said:

* * It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. * * *” 9 L ed 2d at 802.

The court expressly overruled Betts v. Brady and reaffirmed the principles declared in Powell v. Alabama. See 9 L ed 2d at 805.

The right to counsel in the trial court established in Powell v. Alabama and Gideon v. Wainwright was extended to the appellate stage of the criminal prosecution by Douglas v. California, 372 US 353, 83 S Ct 814, 9 L ed 2d 811 (1963). It is clear that the opinion in Douglas v. California is based at least in part on the due process clause of the Fourteenth Amendment. The court said:

“We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court. We are dealing only with the first appeal, granted as a matter of right to rich and poor alike (Cal Penal Code §§1235, 1237), from a criminal conviction. We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction (see Cal Const, Art VI, §4c; Cal Rules on Appeal, Rules 28, 29), or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ * * ®” (Latter emphasis supplied.) 9 L ed 2d at 814.

See, also, Harlan, J., dissenting, 9 L ed 2d at 817.

①

We need not decide whether a state must afford an appeal as a matter of right in all criminal cases. It is sufficient to point out that Oregon has always provided appellate review as a part of its criminal procedure.② The statement of the Supreme Court about appellate review in Illinois is pertinent here.

“* * * Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection Clauses protect persons like petitioners from invidious discriminations. * * *” Griffin v. Illinois, 351 US 12, 76 S Ct 585, 100 L ed 891, at 898-899 (1956).

The due process right to assistance of counsel requires more than a pro forma representation. In Powell v. Alabama, supra, it was emphasized that the accused was entitled to the “effective” assistance of counsel. In Anders v. California, 386 US 738, 87 S Ct 1396, 18 L ed 2d 493 (1967), the court said:

“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. # # *” 18 L ed 2d at 498.

In United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L ed 2d 1149 (1967), the emphasis was on the erucial need for diligent representation by counsel at the pretrial stages of the prosecution, but the court recognized that the same crucial need was present at all “ ‘critical’ stages of the proceedings.” The court said:

“* * * jn recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to ‘critical’ stages of the proceedings. The guarantee reads: ‘In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for Ms defence.’ (Emphasis supplied) The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful ‘defence.’ ” 18 L ed 2d at 1156.

Since Douglas v. California has established appellate review as a critical stage of the criminal procedure we conclude that due process will not tolerate a deprivation of appellate review caused solely by the gross neglect of counsel. The failure to perform the simple procedure of timely filing a notice of appeal is not the “effective” assistance of counsel required by Powell v. Alabama, nor the diligent advocacy required by Anders v. California. The failure of counsel to timely file a notice of appeal after he has been requested or agreed to do so is incompetence as a matter of law and a denial of due process. This is equally true whether the negligent counsel has been appointed or retained. The “invidious discrimination” is not between the rich who can hire counsel and the poor for whom counsel must be appointed, but between those who are represented by competent counsel and those whose counsel prove to be grossly incompetent or culpably negligent.

Discrimination on account of poverty is not the only discrimination that violates the Fourteenth Amendment. This is illustrated by Dowd v. United States, 340 US 206, 71 S Ct 262, 95 L ed 215, 19 ALR2d 784 (1951). In. that ease one Cook was convicted of murder in an Indiana court, was sentenced to life imprisonment and immediately confined in the state penitentiary. His efforts to file a notice of appeal were frustrated by the warden acting pursuant to prison rules. The Supreme Court held (1) that Indiana discriminated against Cook because he had “never had the same review of the judgment against him as he would have had as of right in 1931 but for the suppression of his papers,” 95 L ed at 219, and (2) that “a discriminatory denial of the statutory right of . appeal is a violation of the Equal Protection Clause of the Fourteenth Amendment.” 95 L ed at 218. The court said:

“* « * The Fourteenth Amendment precludes Indiana from keeping respondent imprisoned if it persists in depriving him of the type of appeal generally afforded those convicted of crime. * * *” 95 L ed at 219.

Discrimination which denies equal protection is fundamentally unfair and consequently is also a denial of due process. This is evident from the fact that cases such as Douglas v. California and Anders v. California are rested on both equal protection and due process grounds. Even the landmark decision in Griffin v. Illinois, 351 US 12, 76 S Ct 585, 100 L ed 891, 55 ALR2d 1055 (1956), was based on both Fourteenth Amendment guarantees of due process and equal protection. In Coppedge v. United States, 369 US 438, 82 S Ct 917, 8 L ed 2d 21 (1962), the court in referring to Griffin v. Illinois said:

* * We found the failure of the State to provide for appellate' review for indigents in noncapital cases, when such review was available for all defendants able to purchase transcripts, an ‘invidious discrimination’ inconsistent with the guarantees of due process and equal protection of the laws of the Fourteenth Amendment. * * *” 8 L ed 2d at 29, Footnote 18.

In Wainwright v. Simpson, 360 F2d 307 (5th Cir. 1966), the court-appointed counsel, without consulting with or obtaining the consent of his client, failed to appeal the conviction. The court said:

“In Florida, as in Illinois, appellate review has now become an integral part of the state trial system for finally adjudicating the guilt or innocence of a defendant. One appealing from conviction for crime must be represented by counsel if his appeal is to be meaningful. However laudable his motive, court-appointed counsel for Simpson had no authority, without consulting with or obtaining the consent of his client, deliberately to forego Simpson’s right to move for a new trial or to appeal. When he did so, counsel proved himself ineffective. More, he completely abdicated his function and deprived Simpson of the aid of any counsel at a critical stage of the criminal proceeding.” 360 F2d at 309-310.

In United States ex rel. Maselli v. Reincke, 383 F2d 129 (2d Cir. 1967), a case in which retained counsel failed to file a notice of appeal, the court said:

“If counsel’s representation is so ‘horribly inept’ as to amount to ‘a breach of his legal duty faithfully to represent his client’s interests,’ Kennedy v. United States, 259 F.2d 883, 886 (5 Cir. 1958), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959), there has been a lack of compliance with the fundamental fairness essential to due process.” 383 F2d at 132.

In a case in which retained counsel filed a notice of appeal, but thereafter through either culpable negligenee or intentional malfeasance permitted the appeal to he dismissed, the Supreme Court of Illinois granted a delayed appeal. The following language from the opinion is an excellent exposition of the modern rule:

“For a representative system of litigation to function, it is self-evident that under most circumstances clients must he bound by the acts of their lawyers. However, it is equally self-evident that a mechanical application of this legal proposition can lead to harsh results repugnant to commonly held notions of justice and fair play. (See Justice Black’s dissent in Link v. Wabash Railroad Co.) These results can be even harsher in a criminal case than a civil one since in the latter suit the aggrieved client has, in theory, a malpractice action against his attorney for damages, while in the former no attorney can restore his client’s lost liberty. * * *

“We find the consequences of the dismissal here most significant, for while the right of appeal in a criminal case is not per se of constitutional dimension (see Douglas v. People of State of California, 372 U.S. 353, 365, 83 S.Ct. 814, 9 L.Ed.2d 811, 819), any denial of it is subject to the due-process and equal-protection guarantees of the Federal and State constitutions. Moreover, recent decisions have implemented this right, providing that indigents are entitled to competent appointed counsel on appeal (Douglas v. California), even where pleas of guilty were made below (Milani v. Illinois, 386 U.S. 12, 87 S.Ct. 874, 17 L.Ed2d 702), and to free transcripts of the trial record. (Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L. Ed. 891.) These decisions reflect courts’ concern with providing that any defendant who so desires can obtain at least one full appellate review of his conviction. * * *” People v. Brown (Ill. 1968) 235 NE2d 562, 565.

Other cases in which a delayed appeal or other appropriate relief has been granted to a convicted defendant whose retained counsel has failed to timely file a notice of appeal include the following: Leventhal v. Gavin, 396 F2d 441 (1st Cir. 1968); Kinsey v. Wainwright, 251 FS 30 (M.D. Fla. 1965) (appeal dismissed by retained counsel without client’s consent); Hines v. United States, 287 A2d 827 (D.C. Ct. of App., 1968). For another case involving appointed counsel see Williams v. United States, 402 F2d 548, 552 (8th Cir. 1968).

We hold that because of the culpable negligence of his counsel petitioner was deprived of his Fourteenth Amendment right to due process. Since the state’s criminal process would be found lacking in fundamental fairness if it permitted the deprivation of appellate review by the culpable neglect of counsel, the state must provide a remedy adequate to restore the impaired right. Fortunately, Oregon has provided such a procedure as part of its Post-Conviction Hearing Act. ORS 138.530 directs the post-conviction court to grant relief when it is established that there has been:

“A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.”

We nóte that relief is to be granted for a denial of constitutional rights in either the trial or the appellate court. We think the filing of the notice of appeal is a part of appellate review, even though the notice, as an administrative matter, is filed in the trial court. We are also satisfied that unless appropriate relief is granted the denial of petitioner’s rights that occurred in this case will render his conviction void.

We concur in the finding of the trial court that the Post-Conviction Hearing Act authorizes the granting of a delayed appeal when necessary to rectify a substantial denial of constitutional rights. ORS 138.520 provides that the relief which a court may grant includes

“* * * release, new trial, modification of sentence, and such other relief as may be proper and just. * * *” (Emphasis supplied.)

The phrase “such other relief as may be proper and just” conveys the same meaning as ORS 34.670, which directs a habeas corpus court “to dispose of the party as the law and justice of the case may require.” As we pointed out in Landreth v. Gladden, 213 Or 205, 324 P2d 475 (1958), these phrases should be construed broadly to achieve the remedial purpose of the statutes.

Although the act does not mention a delayed appeal the drafters intended such a remedy to be included.③ We think the legislature also intended to provide a delayed appeal in those cases where such a remedy is “proper and just.” The alternatives would be to discharge the defendant or to grant him a new trial, either of which would be, from the standpoint of proper judicial administration, a less desirable result. If defendant is now provided with an appeal on the merits he will be in the same position as if his counsel had timely filed the original notice of appeal.

The judgment of the trial court is affirmed.

“In holding that an indigent has an absolute right to appointed counsel on appeal of a state criminal conviction, the Court appears to rely both on the Equal Protection Clause and on the guarantees of fair procedure inherent in the Due Process Clause of the Fourteenth Amendment, with obvious emphasis on ‘equal protection.’ ” 9 L ed 2d at 817.

General Laws of Oregon 1851, pp 255, 257; Deady, General Laws of Oregon 1845-1864, p 480, §§ 224, 226.

Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337, at 343-344.