People v. Cross

30 Mich. App. 326 (1971) 186 N.W.2d 398

PEOPLE
v.
CROSS

Docket No. 8911.

Michigan Court of Appeals.

Decided February 11, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.

Everett V. Cross, in propria persona.

Before: LESINSKI, C.J., and HOLBROOK and T.M. BURNS, JJ.

Affirmed by Supreme Court, 386 Mich 237.

LESINSKI, C.J.

Cross, an indigent, was charged with unlawfully driving away an automobile.^[1] On June 20, 1969, he pleaded guilty to the charge and on August 5, 1969, he was sentenced to a term of 4-1/2 to 5 years. On November 6, 1969, defendant in propria persona filed with the trial court a motion requesting that the court direct the county clerk to furnish him with the following specified records and transcripts:

"Complaint; Warrant; Transcripts of Arraignment; Transcripts of Preliminary Examination; Return of Order of Allowance; Transcripts of Circuit Court Arraignment; Transcripts of Guilty Plea; and the Transcripts of Sentencing."

Defendant represented to the court that the records and transcripts were required "for the purpose of perfecting an appeal (delayed) post-conviction".

It should be noted that this was defendant's first and only effort to appeal his conviction or to obtain any post-conviction relief, either direct or collateral.

On November 17, 1969, the Honorable Elza H. Papp denied defendant's motion stating as grounds that:

"This cause coming on to be heard on the motion of defendant Everett V. Cross, in propria persona, who petitions the court to enter an order directing the circuit court clerk to give him transcripts and records of his case at public expense because of his alleged indigent status; and

"Whereas, it appears that defendant was sentenced on August 5, 1969, by the Honorable Stewart A. Newblatt, J., and was informed by the court of his rights to appellate review, and that such requests were to be made to the court within 60 days from that date, and that failure to timely petition for either indigent appellate counsel or free records in his case would cause him to lose those rights; and

"Whereas, it appears that defendant's present request dated November 6, 1969, has not been timely filed, and there is no showing that the delay is not due to defendant's culpable negligence, defendant is not therefore entitled to the relief he now seeks.

"It is, therefore, ordered, that the above motion be, and the same is hereby denied."

On February 4, 1970, defendant, proceeding in propria persona and without benefit of transcript, filed a "petition for writ of habeas corpus" with this Court. As part of his brief in support of this petition for a writ of habeas corpus, defendant presents, pro se, the following question:

"1. Ex parte assigned question no. 1

"Did the denial of the trial court to grant petitioner's prayer in his petition for transcripts and records, petitioner acting in propria persona, counsel of record, on his first time to make application for post-conviction appeal (delayed) and petitioner unable to appeal his conviction properly without the certified records, operate to deny this injured petitioner his due process of law and equal protection of the laws, under the provisions contained in the Fourteenth Amendment of the Constitution of the United States of America, and under the provisions contained in the Michigan General Court Rules, 803.3, 806.3 and 806.4, respecting (delayed) appeal?"

Under the prior accepted practice of this Court, we would ordinarily, under like circumstances, treat defendant's petition as an application for leave to take a delayed appeal. However, neither this Court nor the defendant has been favored with portions of the records and transcripts sufficient to determine if there exist meritorious grounds for review of defendant's conviction. We have had access only to that portion of the transcript which the prosecuting attorney quotes in his brief in opposition to the granting of leave to appeal and in opposition to defendant's request that he be furnished with the transcript.

Heeding the admonition of the United States Supreme Court in Gardner v. California (1969) 393 US 367 (89 S Ct 580, 21 L Ed 2d 601), to refrain from taking the role of parens patriae, we have not searched the record to find possible error in defendant's conviction or to determine whether there exists meritorious grounds for appeal. We, therefore, refrain from granting or denying leave to appeal and will treat the claim of defendant contained in his question quoted above as an application for superintending control.

Thus, for the first time the question is clearly and squarely presented to an appellate court of this state — Does a convicted defendant who has not taken a timely appeal as of right, have a right to be provided with free transcripts of trial court proceedings when he later requests such transcripts for the purpose of preparing, pro se, an application for leave to take a delayed appeal?

Under the provisions of Const 1963, art 1, § 20, every person convicted of a crime has an appeal as a matter of right. GCR 1963, 803.1 provides for a jurisdictional limit of 60 days for the taking of the appeal of right. See, also, GCR 1963, 806.1.

GCR 1963, 803.3 permits delayed appeals and provides that after expiration of the period for timely appeal, this Court may, in its discretion, grant leave to appeal upon a showing of merit in the grounds for appeal and that the delay was not due to the defendant's culpable negligence.

In criminal appeals there is no limit on the time during which a convicted defendant may seek leave to take a delayed appeal. GCR 1963, 806.4(2). Hampton v. Buchkoe (CA 6, 1964), 334 F2d 6, 7.

There is no need to consider in this case whether the Court must appoint counsel to assist a convict in taking a delayed appeal.^[2] However, it cannot be disputed that Const 1963, art 1, § 13 confers the right to seek relief in propria persona via that appellate route.

The question remains as to what assistance, if any, must be provided by the state to an indigent proceeding in propria persona who has failed to take a timely appeal as of right and is seeking leave to take a delayed appeal from his conviction. Const 1963, art 1, § 20 requires that an indigent shall have the right "to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal".

In this situation we are faced with two basic questions: (1) Did the indigent, by failing to take a timely appeal, waive or in any other manner, lose his right to be provided with a transcript for use in perfecting and prosecuting a delayed appeal? (2) May the giving or withholding of a transcript be placed within the discretion of the trial judge? The ultimate question, of course, is whether the indigent defendant seeking leave to take a delayed appeal is entitled to a transcript of the trial court proceedings.

We are here clearly confronted with a question of defendant's right under the Constitution of the United States. In any case requiring the determination of rights under the Federal Constitution, decisions of the United States Supreme Court are controlling; and the Supreme Court of Michigan is bound by the decisions of the United States Supreme Court which define Federal Constitutional rights. Boykin v. Alabama (1969) 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274); Chapman v. California (1967), 386 US 18 (87 S Ct 824, 17 L Ed 2d 705), reh den 386 US 987 (87 S Ct 1283, 18 L Ed 2d 241); Murphy v. Waterfront Commission of New York Harbor (1964), 378 US 52 (84 S Ct 1594, 12 L Ed 2d 768); Malloy v. Hogan (1964), 378 US 1 (84 S Ct 1489, 12 L Ed 2d 653); Maryland Committee for Fair Representation v. Tawes (1964), 377 US 656 (84 S Ct 1429, 12 L Ed 2d 595); Advisory Opinion re Constitutionality of PA 1966, No 261 (1968), 380 Mich 736; People v. Walker (On Rehearing, 1965), 374 Mich 331; People v. Gonzales (1959), 356 Mich 247.

In following these decisions of the United States Supreme Court and the Michigan Supreme Court, this Court has held in a number of cases that in the determination of Federal Constitutional rights, decisions of the United States Supreme Court are binding on this Court. People v. Wiejecha (1968), 14 Mich App 486; People v. Wolfe (1967), 5 Mich App 543; People v. Imbrunone (1966), 5 Mich App 42. It is obvious, therefore, that any constitutional or statutory provision, any court rule, or any holding in a state court decision which defines Federal Constitutional rights must fall if it fails to meet minimum standards set forth in decisions of the United States Supreme Court.^[3]

An examination of the decisions of that Court shows that an indigent's right to a free transcript on appeal is considered to be more basic than his right to counsel on appeal. Griffin v. Illinois (1956), 351 US 12 (76 S Ct 585, 100 L Ed 891, 55 ALR2d 1055), reh den 351 US 958 (76 S Ct 844, 100 L Ed 1480), which established the right of an indigent to be furnished with a transcript at public expense on appeal was decided seven years before Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L Ed 2d 799, 93 ALR2d 733), which established the right to counsel at trial in noncapital cases and Douglas v. California (1963), 372 US 353 (83 S Ct 814, 9 L Ed 2d 811), reh den 373 US 905 (83 S Ct 1288, 10 L Ed 2d 200), which established the right to counsel on appeal. The cases, post, show that the Court regards the lack of transcript as affecting access to the courts or availability of appeal, whereas the lack of counsel affects the quality of appeal.

The question of the right of an indigent to a free trial transcript was first considered by the Court in Griffin v. Illinois, supra. That case concerned a timely direct appeal from an armed robbery conviction. Defendant requested a transcript for use on appeal and the trial court denied the motion. In reversing the denial, the United States Supreme Court said that there is no constitutional requirement that a state provide appellate courts or any right to appellate review. However, once having established an appellate court and a method of appellate review, the equal protection clause of the Fourteenth Amendment^[4] made it mandatory that the appellate review provided be made available to rich and poor alike. The court held that the denial of a free transcript "effectively denies the poor an adequate appellate review accorded to all who have money enough to pay the cost in advance". Therefore, those who are unable to pay for a transcript were denied equal protection of the laws. It was further held that the Fourteenth Amendment prohibited such invidious discrimination "at all stages of the proceedings". Justice Frankfurter, concurring, said that Illinois, by denying free transcripts to indigent appellants "has thereby shut off means of appellate review for indigent defendants".

The gist of the Court's holding in Griffin may be summed up in the one statement: "Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts".

As stated above, Const 1963, art 1, § 20, provides, in effect, that an indigent appellant has a right to reasonable assistance (which includes the furnishing of a transcript at public expense) "when the trial court so orders". Thus, the granting or withholding of this right is placed within the discretion of the trial judge. In Eskridge v. Washington State Board of Prison Terms and Paroles (1958), 357 US 214 (78 S Ct 1061, 2 L Ed 2d 1269), the Court considered a Washington law, having the same effect, which provided that the trial judge might furnish an indigent defendant a transcript at public expense "if in his opinion justice will be thereby promoted". The Court struck down this provision as unconstitutional holding that the conclusion of the trial judge is not an adequate substitute for the full appellate review available to all Washington defendants who have enough money to buy the transcript. In a per curiam opinion, the Court said (p 216):

"In Griffin v. Illinois (1956), 351 US 12 (76 S Ct 585, 100 L Ed 891, 55 ALR2d 1055), we held that a state denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials. We hold that Washington has denied this constitutional right here. The conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript."

Thus, Const 1963, art 1, § 20, if construed as vesting the trial judge with discretionary power to deny to an indigent defendant a transcript which is available to defendants who can afford to pay for it, conflicts with the decision of the United States Supreme Court in Eskridge. Clearly, the discretionary power to so withhold a transcript from an indigent defendant is a denial of equal protection of the laws.

Following the decision in Eskridge, the State of Washington formulated new court rules which provided that trial judges might grant free transcripts to indigents upon a showing of "nonfrivolity" of the appeal instead of the "promotion of justice" finding which had been invalidated by Eskridge. In Draper v. Washington (1963), 372 US 487 (83 S Ct 774, 9 L Ed 2d 899), the application of the test of "nonfrivolity" as applying only to indigents was also held to be violative of the equal protection clause. The court held that the test of nonfrivolity could stand only if, in determining the availability of transcripts, the tests of nonfrivolity of appeal were applied to indigent and non-indigent alike. The court said (p 499):

"Moreover, since nothing we say today militates against a state's formulation and application of operatively nondiscriminatory rules to both indigents and nonindigents in order to guard against frivolous appeals, the affording of a `record of sufficient completeness' to indigents would ensure that, if the appeals of both indigents and nonindigents are to be tested for frivolity, they will be tested on the same basis by the reviewing court."

Obviously, the portion of Const 1963, art 1, § 20, which places the granting or withholding of a transcript within the discretion of the trial judge applies only to indigents. It obviously does not apply to those who have money to buy transcripts. Under the holding of the United States Supreme Court in Draper, such a provision which applies only to indigents and not to non-indigents, is clearly a violation of the equal protection clause.

The prosecuting attorney in opposing the granting of records and transcripts to defendant takes the position that defendant had a right to a transcript at public expense while he had available an appeal as of right. It is contended, however, that this right was lost by failure to take a timely appeal as of right and that defendant is, therefore, not entitled to a transcript for use in a discretionary appeal. The court rejected this same contention in Burns v. Ohio (1959), 360 US 252 (79 S Ct 1164, 3 L Ed 2d 1209).

Ohio court rules provide for an appeal as of right in criminal cases. In 1953, Burns was convicted of burglary and sentenced to life imprisonment. His conviction was affirmed by the Ohio court of appeals that same year. He immediately filed a notice of appeal in the court of appeals but did nothing further until 1957 when he sought leave to appeal in the Supreme Court of Ohio. His motion for leave was rejected for failure to pay a $20 docket fee. Although the case did not deal with a free transcript question, the court had decided the question squarely on the assistance-to-indigents reasoning of Griffin.

The state of Ohio argued that the case should be distinguished from Griffin because of the fact that Burns had received one appellate review in Ohio, while Illinois had left Griffin without any appellate review of his conviction. The state contended that Griffin did not apply in the case of Burns, who was seeking leave to appeal (p 257):

"This is a distinction without a difference for, as Griffin holds, once the state chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty." (Emphasis supplied.)

Responding to Ohio's argument that Griffin should be distinguished because review in the Illinois Supreme Court was a matter of right, while leave to appeal in the Ohio Supreme Court was a matter of discretion, the Court said (pp 257, 258):

"Since Griffin proceeded upon the assumption that review in the Illinois Supreme Court was a matter of right, 351 US, at 13, Ohio seeks to distinguish Griffin on the further ground that leave to appeal to the Supreme Court of Ohio is a matter of discretion. But this argument misses the crucial significance of Griffin. In Ohio, a defendant who is not indigent may have the Supreme Court consider on the merits his application for leave to appeal from a felony conviction. But as that Court has interpreted § 1512^[5] and its rules of practice, an indigent defendant is denied that opportunity. There is no rational basis for assuming that indigents' motions for leave to appeal will be less meritorious than those of other defendants. Indigents must, therefore, have the same opportunities to invoke the discretion of the Supreme Court of Ohio."

Thus, the situation in Burns was very similar to the instant case. The Ohio defendant had failed to perfect his appeal as of right and in his motion for leave to obtain a discretionary appeal it was necessary, as in the case at bar, that he make a showing of merit as a condition to the granting of leave. Defendant here is in the same position in Michigan as Burns was in Ohio. Burns cannot be distinguished from the case which we are now considering because it concerned payment of a fee rather than denial of a transcript as a bar to appeal. The United States Supreme Court decided the fee question in Burns solely and squarely on the right-to-transcript rationale of Griffin. It is obvious, therefore, that the same reasoning applies regardless of the method by which an indigent defendant is barred from access to appellate review.

Clearly, in the light of Burns and Griffin, we cannot sustain plaintiff's claim that defendant's right to a transcript at public expense was lost by his failure to take a timely appeal as of right and that he has no right to a transcript for use in seeking leave to take a delayed appeal which is discretionary.

In another of the Griffin line of cases which involved payment of a statutory fee by an indigent defendant, Smith v. Bennett (1961), 365 US 708, 709 (81 S Ct 895, 6 L Ed 2d 39), the Court continued to adhere to the right-to-transcript reasoning of Griffin when it stated:

"We hold that to interpose any financial consideration between an indigent prisoner of the State and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws."

For the first time the Court in that case extended the Griffin rationale to collateral proceedings. The state of Iowa, in anticipation of the rule in Griffin, had provided by statute for appeals by indigent defendants without prior payment of filing fees and for transcripts to be provided at public expense. In Smith v. Bennett, the state refused to extend the statutory benefits to a prisoner filing a petition for a writ of habeas corpus in a state court. In attempting to distinguish Griffin and Burns, the state claimed that

"Those cases `were concerned with the rights of a convicted criminal seeking to make a direct attack upon his conviction by appeal * * *.' Habeas corpus, on the other hand, is not an attack on the conviction but on the validity of the detention and is, therefore, a collateral proceeding."

The United States Supreme Court, not pausing to "quibble" as to the context in which the question arose said (p 712):

"The availability of a procedure to regain liberty lost through criminal process cannot be made contingent upon a choice of labels."

After a discussion of the sanctity of the writ of habeas corpus, the Court said (p 713):

"When an equivalent right is granted by a state, financial hurdles must not be permitted to condition its exercise."

Lane v. Brown (1963), 372 US 477 (83 S Ct 768, 9 L Ed 2d 892), dealt with the denial of an indigent's request for a transcript of a coram nobis hearing, the denial of which was being appealed by the indigent defendant. The Court reiterated its holding in Griffin and Burns that once a state chooses to establish an appellate procedure it cannot foreclose indigents from any phase of that procedure because of their poverty. The Court restated its holdings in former cases that the Griffin rule is not restricted to direct appeals but applies to all post-conviction proceedings, both direct and collateral (pp 484, 485):

"The present case falls clearly within the area staked out by the Court's decisions in Griffin, Burns, Smith, and Eskridge. To be sure, this case does not involve, as did Griffin, a direct appeal from a criminal conviction, but Smith makes clear that the Griffin principle also applies to state collateral proceedings, and Burns leaves no doubt that the principle applies even though the State has already provided one review on the merits."

In Long v. District Court of Iowa (1966), 385 US 192 (87 S Ct 362, 17 L Ed 2d 290), defendant filed in a state court a petition for writ of habeas corpus which was denied. Defendant then applied to the district court for appointment of counsel and for a free transcript of the habeas corpus proceedings for use on appeal of the denial. The district court denied the motions for counsel and transcript on the ground that "habeas corpus being a civil action there is no provision in the law for the furnishing of a transcript without the payment of fee, or for the appointment of counsel." In considering this demand, the Supreme Court said (p 194):

"The judgment below must be reversed. The State properly concedes that under our decisions in Smith v. Bennett [1961], 365 US 708 [81 S Ct 895, 6 L Ed 2d 39], and Lane v. Brown [1963], 372 US 477 [83 S Ct 768, 9 L Ed 2d 892] `to interpose any financial consideration between an indigent prisoner of the state and his exercise of a state right to sue for his liberty is to deny that prisoner the equal protection of the laws.' Smith v. Bennett, supra, 365 US at 709 (81 S Ct 896, 6 L Ed 2d 40). We specifically held in Smith that having established a post-conviction procedure, a state cannot condition its availability to an indigent upon any financial consideration. And we held in Lane that the same rule applies to protect an indigent against a financial obstacle to the exercise of a state-created right to appeal from an adverse decision in a post-conviction proceeding.

"In Lane v. Brown, supra, at 483, the Court reaffirmed the fundamental principle of Griffin v. Illinois (1956), 351 US 12, 19 (76 S Ct 585, 100 L Ed 891, 55 ALR2d 1055), that `Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.' The Court in Lane went on to observe that Smith had established `that these principles were not to be limited to direct appeals from criminal convictions, but extended alike to state post-conviction proceedings.'"

Thus, the United States Supreme Court in Lane and Long has extended the Griffin rule far beyond the holding that an indigent defendant is entitled to a transcript of the trial court proceedings leading to his conviction. The Court in Lane and Long held that an indigent is entitled to transcripts of hearing in collateral post-conviction proceedings for use in appeal from the denial of defendant's petition therein. Thus, under the holdings of the Court in those cases, an indigent defendant is entitled not only to a transcript of the trial court proceedings which led to his conviction, but also is entitled to transcripts of post-conviction proceedings, both direct and collateral, when he appeals from denials of his petitions in such post-conviction proceedings. The Court has clearly and firmly held that denial of free transcripts of hearings in collateral post-conviction proceedings is a denial of equal protection of the laws. These decisions have rigidly adhered to the initial holding in Griffin that, although there is no constitutional requirement that a state provide any form of appellate review of a conviction, once any appellate or post-conviction proceeding is established, an indigent may not be foreclosed from any phase thereof because of his poverty.

The decision in Gardner v. California (1969), 393 US 367, 370 (89 S Ct 580, 21 L Ed 2d 601), indicates that so long as there is any appellate or post-conviction route open by which an indigent convict may obtain his liberty, he is entitled to transcripts for use in pursuing that end.

"So long as this system of repeated hearings exists and so long as transcripts are available for preparation of appellate hearings in habeas corpus cases, they may not be furnished those who can afford them and denied those who are paupers."

The Court in that case discussed the indigent's practical need for a transcript when proceeding in propria persona (pp 369, 370):

"It is argued that since petitioner attended the hearing in the superior court, he can draw on his memory in preparing his application to the appellate court. And that court, if troubled, can always obtain the transcript from the lower court. But we deal with an adversary system where the initiative rests with the moving party. Without a transcript the petitioner, as he prepared his application to the appellate court, would have only his own lay memory of what transpired before the superior court. For an effective presentation of his case he would need the findings of the superior court and the evidence that had been weighed and rejected in order to present his case in the most favorable light. Certainly a lawyer, accustomed to precise points of law and nuances in testimony, would be lost without such a transcript, save perhaps for the unusual and exceptional case. The lawyer, having lost below, would be conscious of the skepticism that prevails above when a second hearing is sought and would as sorely need the transcript in petitioning for a hearing before the appellate court as he would if the merits of an appeal were at stake. A layman hence needs the transcript even more.

"It is said that the appellate court may send for the transcript and deduce from it whether there is merit in this new application for another hearing. That philosophy would make the appellate tribunal parens patriae of the indigent habeas corpus litigant. If that would suffice for appellate hearings in habeas corpus, why not in review of cases on appeal? Since our system is an adversary one, a petitioner carries the burden of convincing the appellate court that the hearing before the lower court was either inadequate or that the legal conclusions from the facts deduced were erroneous. A transcript is therefore the obvious starting point for those who try to make out a case for a second hearing. The state can hardly contend that a transcript is irrelevant to the second hearing, where it specifically provides one, upon request, to the appellate court and the state attorney."

Although the above discussion would not, per se, be determinative of defendant's rights, it is of particular interest in this case. It would be apparent from defendant's brief, even if not known to us, that defendant in seeking leave to appeal has nothing to work from except his own recollection of the trial court proceedings. On the other hand, the prosecuting attorney, in his brief in opposition to the granting of a transcript to defendant, quotes liberally from the same transcript which he seeks to deny to defendant.

In Roberts v. LaVallee (1967), 389 US 40 (88 S Ct 194, 19 L Ed 2d 41), the Court extended the Griffin rule to require that a transcript of a preliminary examination be furnished to an indigent defendant for use on appeal, and in Williams v. Oklahoma City (1969), 395 US 458 (89 S Ct 1818, 23 L Ed 2d 440), the rule applied to appeals from convictions on charges of petty offenses.

Admittedly, there is no decision of the United States Supreme Court, nor of either appellate court of this state, which specifically deals with the rights of an indigent seeking leave to take a delayed appeal from his conviction under the provisions of GCR 1963, 803.3, and GCR 1963, 806.4(2), or under any like provisions in any other state. This is undoubtedly because the Michigan provision for delayed appeal is sui generis. However, considering the wide range of post-conviction situations in which the United States Supreme Court had held that denial of a transcript constitutes denial of equal protection of the laws, we cannot say that the Michigan provision for delayed appeal does not come within the ambit of the Griffin principle.

Michigan by court rule has provided that one convicted of a crime who has failed to take a timely appeal as of right from his conviction may, upon a showing of merit and a lack of culpable negligence in delay, obtain leave to take a delayed appeal from his conviction.

Thus, Michigan has provided this method of appellate review which is available to rich and poor alike. To deny an indigent the opportunity to regain his liberty, through this means of direct appellate review, would be denial of equal protection of the laws.

To hold that the Michigan provision for delayed appeal does not come within the principles enunciated in Griffin and its progeny would be an unreasoned distinction within the meaning in Williams v. Oklahoma City, supra, where the United States Supreme Court said that the states are not required to establish avenues of appellate review, but that "once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts".

A further word should be said as to the prosecuting attorney's claim that defendant, by failing to take a timely appeal as of right from his conviction, has waived his right to a transcript at public expense for use in preparing an application for leave to take a delayed appeal. The Michigan Supreme Court in People v. McKinley (1970), 383 Mich 529, 536, stated clearly the strong presumption against waiver of basic rights.

"Waiver, as that term has been repeatedly defined by this Court, is the intentional relinquishment or abandonment of a known right. See Welling v. Dave's Cut Rate Drugs, Inc. (1961), 362 Mich 389; Book Furniture Company v. Chance (1958), 352 Mich 521; Maxey v. Proctor (1955), 343 Mich 453; Kelly v. Allegan Circuit Judge (1969), 382 Mich 425. The Court indulges every reasonable presumption against waiver of constitutional rights. (See Johnson v. Zerbst [1938], 304 US 458 [58 S Ct 1019, 82 L Ed 1461].)"

In light of the above, waiver of so basic a right cannot be so lightly presumed.

It cannot be disputed that defendant has, by reason of his failure to take a timely appeal, lost his right to an appeal as of right. However, Michigan has provided an additional opportunity for review of convictions by means of an application for delayed appeal. There certainly can be no presumption that failure to take a timely appeal as of right resulted in the loss of any rights incident to the right to delayed appeal.

We conclude, therefore, that the trial judge erred in denying defendant the trial court transcript and records which he requested. Superintending control is granted and the trial court is ordered to furnish defendant with the records and transcripts requested.

T.M. BURNS, J., concurred.

HOLBROOK, J. (dissenting).

This writer accepts the counter-statement of issue involved which is stated by the people as follows:

"Is a convicted criminal defendant entitled to free copies of the circuit court records of his case where the trial court at sentencing informed him in open court as well as in writing of his constitutional right to appellate review; free counsel and records to perfect such appeal if indigent, and that such petition must be filed with the trial court within 60 days of sentencing to be timely, and failure to timely file would result in loss of the right to timely appeal, free counsel and records, and appellant stated that he understood those rights, but where defendant files his petition for free records 90 days after sentencing, but fails to show that the delay in filing was not due to his culpable negligence, and fails to show that he has a meritorious basis for either post-conviction motions or an appeal?"

Defendant was charged in the Genesee County prosecuting attorney's information with unlawfully driving away an automobile. MCLA § 750.413 (Stat Ann 1954 Rev § 28.645).

On June 20, 1969, defendant, who was represented by counsel, appeared before the Honorable Stewart A. Newblatt for the specific purpose of withdrawing his previously entered not guilty plea and entering a plea of guilty to the charge contained in the information. The guilty plea of defendant was tendered by defendant and accepted by the trial court in conformity with the requirements of GCR 1963, 785.3(2).

On August 5, 1969, defendant, with his counsel, appeared before the trial court for sentencing. The sentence imposed was for imprisonment in the state penitentiary for not less than four and one-half nor more than five years.

At the conclusion of sentencing, defendant was advised of his constitutional right to appellate review. The reporter's transcript reflects the following:

"The Court: It's my duty to inform you that you have a constitutional right to appeal your conviction. If you're financially unable to hire an attorney to perfect that appeal, the court would appoint an attorney for you and would furnish that attorney with such portions of the record of these proceedings as that attorney would require to prepare any post-conviction motions or to take an appeal in your behalf.

"I further advise you that if you claim financial inability to hire your own attorney, and you want the court to appoint an attorney for you, you should make that request to the court within sixty days from today.

"I will give you some forms for you to fill out. To do that, you should fill out these forms, sign them under oath and return them to me within sixty days or it will have three consequences. First, you will lose your right to appeal; secondly, you lose your right to have an attorney appointed at public expense and; thirdly, you will lose your right to have a transcript of these proceedings furnished to you at public expense. Do you understand that, Mr. Cross?

"The Defendant: Yes, sir.

"The Court: I will give you the forms at this time and ask that you sign the top one as a receipt, please.

(Whereupon defendant signed receipt for above-mentioned form)

"Thank you, Mr. Cross. You may be seated."

In a petition dated November 6, 1969, defendant, in propria persona, requested that the trial court enter an order directing the Genesee County Clerk to furnish him with ALL the transcripts and records in his case free of charge because of his alleged indigent status.

Defendant's petition was brought on for hearing on November 17, 1969, before the Honorable Elza H. Papp (alternate of Judge Stewart A. Newblatt).

Defendant's request was denied by the trial court in its order dated November 17, 1969.

The denial was based on essentially these grounds: First, defendant had been advised by the sentencing judge of his constitutional right to appellate review; second, defendant had been advised of his right to appellate counsel at public expense and free records; and that requests for the same were to be made to the court within sixty days of sentencing on a form which had been furnished to defendant at his sentencing; third, defendant was informed that failure to timely petition the trial court would result in the loss of the right to timely appeal, free appellate counsel, and free records. Thus, defendant's tardy petition in this cause, after being advised of his rights at sentencing and the applicable time limitations, and without a showing that the delay in filing his petition was not due to defendant's culpable negligence, appropriately called for denial of his requests.

Defendant now appeals to this Court filing a petition for writ of habeas corpus, which is treated as an application for leave to appeal. It appears that defendant's contention is that the trial court's denial of his petition for free records should be reversed.

GCR 1963, 803.3 provides as follows:

"Delayed Appeal. After expiration of the period for timely appeal, the Court of Appeals may, in its discretion, grant leave to appeal from any order or judgment from which timely appeal would have been available either as of right or by leave, upon showing, supported by affidavit, that there is merit in the grounds for appeal and that the delay was not due to appellant's culpable negligence."

GCR 1963, 806.4(2) provides in part:

"Where timely appeal would have been of right, application for delayed appeal need not be accompanied by settled statement of facts but shall affirmatively show, by statement of facts and brief, that there is merit in the claim of appeal and, by affidavit of facts, that the delay was not due to appellant's culpable negligence."

Defendant has not shown any meritorious basis for an appeal nor has he shown why he waited over ninety days from the time of his sentence to file a petition for the free records because of his alleged indigent status.

Defendant bases his claim for relief on the premise that a person who is able to purchase a transcript should be in no better position than an indigent person and that the equal protection clause of the United States Constitution requires the Court to furnish to him at this time, without cost, a copy of the records and transcript. That he was entitled to such free transcript and records is unquestioned provided he had followed the General Court Rules of the State of Michigan. This he did not do.

In United States v. Shoaf (CA 4, 1964), 341 F2d 832, Judge Haynsworth said that an indigent defendant is not entitled to a free transcript for a keepsake nor, with no showing of need, to comb such record in hope of discovering some flaw.

In State v. Brazell (1968), 15 Ohio App 2d 104, 108 (239 NE2d 125), the Court in part stated:

"Defendant claims that he is entitled to a transcript of the proceedings of his original trial at the taxpayers' expense. To enable him to receive such transcript, he either must be within rule at the time the request is made or have a motion for leave to appeal granted. State ex rel. Catlino v. Clerk of Common Pleas Court (1967), 9 Ohio St 2d 101 (224 NE2d 130). Inasmuch as defendant does not now have an appeal pending, he, therefore, is not entitled to copies of the records furnished him at state expense."

See also People v. Rivera (1969), 60 Misc 2d 414 (303 NYS2d 1); Williams v. Peyton (WD Va, 1969), 297 F Supp 857.

Absent a showing of a meritorious basis for an appeal and a satisfactory explanation showing that the delay was not due to defendant's culpable negligence, it appears to this writer that defendant is not entitled to have furnished him free of charge the records and transcript concerning his conviction in the trial court. People v. Gorka (1969), 381 Mich 515; Jensen v. Menominee Circuit Judge (1969), 382 Mich 535; People v. Berry (1970), 384 Mich 270; and Calhoun v. Macomb Circuit Judge (1968), 15 Mich App 416.

Defendant having not complied with the General Court Rules nor having cited any case in the United States Supreme Court directly in point requiring the state to furnish transcripts and records to a defendant under similar circumstances, I would rule as did the trial court and affirm.

NOTES

[1] MCLA § 750.413 (Stat Ann 1954 Rev § 28.645).

[2] See People v. Berry (1970), 384 Mich 270, which held that there is no right to counsel at public expense for indigents who seek leave to appeal.

[3] At the time of repeal of GCR 1963, 785.4, the Supreme Court directed this Court to proceed "in accordance with such decisions of the United State Supreme Court and of the Supreme Court of Michigan as may be deemed applicable". 379 Mich xxxi. Thus, as an intermediate appellate court, we do not hesitate to so decide this constitutional question of first impression in this state.

[4] US Const, Am 14.

[5] General Code of Ohio, § 1512.