State v. Leroy

Corrigan, J.

The solitary feature of this appeal brings into focus the issue as to whether or not our decision in State v. Sims, supra (27 Ohio St. 2d 79), is to be given retroactive application to the cause under review, which dates back to June 1964, almost eight years after this appellant’s conviction on three counts of armed robbery.

The syllabus in Sims states the holding of this court and applies only to the factual pattern in that case. That syllabus reads:

“In the absence of evidence in the record upon which it could be determined that an indigent convicted defendant knowingly and intelligently waived his right of direct appeal and his right to court-appointed counsel for direct appeal prior to the expiration of the time in which such an appeal could be taken, a Court of Appeals must make such a factual determination before it dismisses a motion for leave to appeal.”

In Sims, the defendant was represented in the trial by court-appointed counsel, indicating his indigency. When he filed his motion for leave to appeal within six months of the judgment of conviction, he asserted his indigency to the Court of Appeals by affidavit. In the case before us, the defendant obviously was not indigent at the trial because he was represented by privately retained counsel. He asserts in his motion for leave to appeal, over six years later, that he endeavored to negotiate with his trial attorney for an appeal at the time of judgment in the trial court in 1964 but was unable to borrow any money to pay him therefor. It must be concluded that he knew at that time about appeal rights, from whatever source the information or advice was derived. There is absolutely nothing before us to show that defendant, Leroy, told the trial judge, after his conviction, that he was indigent or that he desired to appeal.

Although the rule stated in Sims in 1971 is sound and just, we do not believe that the United States Constitution required an Ohio Common Pleas judge in 1964 to find out whether Willis Leroy, who had just been convicted by a jury on three counts of armed robbery and who had been represented at trial by retained counsel, wished to prosecute an appeal and was no longer able to afford a lawyer to take such an appeal on his behalf.

Sims, in our opinion, is inapplicable to our instant factual pattern; likewise, Douglas v. California (1963), 372 U. S. 353.

Let us examine briefly the doctrine of Douglas, which was handed down in 1963. In that case, defendants were convicted in a California state court of 13 felonies and sentenced to imprisonment. Exercising their only appeal as of right, they appealed to an intermediate Court of Appeals, and, being indigent, applied to that court for appointment of counsel to assist them in the appeal. In accordance with a state rule of criminal procedure, that court made an ex parte examination of the record, determined that appointment of counsel for petitioners would not be “of advantage to the defendant or helpful to the appellate court” and denied appointment of counsel. Petitioners’ appeal was heard without assistance of counsel and their convictions were affirmed. The California Supreme Court denied a discretionary review. The United States Supreme Court held that where the merits of the one and only appeal an indigent has of right are decided without benefit of counsel in a state criminal ease, there has been a discrimination between the rich and the poor which violates the Fourteenth Amendment.

In the majority opinion written by Douglas, J., that court said, at page 354: “Although several questions are presented in the petition for certiorari, we address ourselves to only one of them. The record shows that petitioners requested, and were denied, the assistance of counsel on appeal, even though it plainly appeared they were indigents,.” (Emphasis added.)

Later, on page 355, the opinion states: “Here the issue is whether or not an indigent shall he denied the assistance of counsel on appeal.” (Emphasis added.) And, of course, Douglas is retroactive in effect, under Smith v. Crouse (1964), 378 U. S. 584, but that certainly does not mean any more than that the decision is retroactive in a situation such as was there presented.1

The Supreme Court of the United States has denied retroactivity in connection with many constitutional rules of criminal procedure, under the general principle that ‘ ‘ the court may in the interest of justice make the rule prospective * * * where the exigencies of the situation require such an application * * Johnson v. New Jersey (1966), 384 U. S. 719, 726-727. For example, Linkletter v. Walker (1965), 381 U. S. 618, refused retroactive application to Mapp v. Ohio (1961), 367 U. S. 643 (illegal search and seizure, Fourth Amendment); Tehan v. United States, ex rel. Shott (1966), 382 U. S. 406, to Griffin v. California (1965), 380 U. S. 609 (comment on failure to take the witness stand, Fifth Amendment); Johnson v. New Jersey, supra, to both Escobedo v. Illinois (1964), 378 U. S. 478, and Miranda v. Arizona (1966), 384 U. S. 436; Stovall v. Denno (1967), 388 U. S. 293, to United States v. Wade (1967), 388 U. S. 218 (lineup identification, Fifth and Sixth Amendments), and Gilbert v. California (1967), 388 U. S. 263; Desist v. United States (1969), 394 U. S. 244, refused retroactive application to Katz v. United States (1967), 389 U. S. 347 (electronic eavesdropping as illegal search and seizure, Fourth Amendment); DeStefano v. Woods (1968), 392 U. S. 631, to Duncan v. Louisiana (1968), 391 U. S. 145 (right to jury trial—serious offenses, Sixth Amendment), and Bloom v. Illinois (1968), 391 U. S. 194 (right to trial by jury—-serious criminal contempt, Sixth Amendment); Williams v. United States (1971), 28 L. Ed. 2d 388, to Chimel v. California (1969), 395 U. S. 752 (unreasonable search and seizure, Fourth Amendment); and Mackey v. United States (1971), 28 L. Ed. 2d 404, refused retroactive application to Marchetti v. United States (1968), 390 U. S. 39, and Grosso v. United States (1968), 390 U. S. 62 (self-incrimination; failure to register as a gambler, Fifth Amendment).

In Stovall v. Denno, supra (388 U. S. 293), at page 297, the court set forth the following criteria guiding resolution of the question of whether a case, which overturns prior doctrines in the area of criminal law, should be applied only prospectively:

“* * * (a) the purpose to he served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”

All three factors favor prospective application of the rule stated in State v. Sims, supra (27 Ohio St. 2d 79).

The case of United States, ex rel. Smith, v. McMann (1969), 417 F. 2d 648, seems to be closest to our fact situation, but the court in that case, upon appeal from a denial of a habeas corpus writ, found that Smith was indigent at the time sentence was imposed. We have no such finding before us.

Worthy of mention also is the case of Adams v. Illinois (1972), 31 L. Ed. 2d 202, decided March 6, 1972. In Adams, a decision of the Illinois Supreme Court, affirming the lower court’s overruling of a motion to dismiss the indictment because of that court’s failure to appoint counsel to represent defendant at a preliminary hearing in 1967, was upheld. Defendant’s conviction was affirmed by the Ulinois Supreme Court on the ground that Coleman v. Alabama (1970), 399 U. S. 1, in which the holding was that a preliminary hearing is a critical stage of the criminal process at which the accused is constitutionally entitled to assistance of counsel, did not have retroactive application, namely, to preliminary hearings conducted prior to June 26, 1970. Conversely, Coleman is to be prospective only in application.

Retrospective application of law is proper when the principle to be applied goes to the “fairness of the trial— the very integrity of the fact finding process.” Linkletter v. Walker, supra (381 U. S. 618, 639). See, also, Roberts v. Russell (1968), 392 U. S. 293; McConnell v. Rhay (1968), 393 U. S. 2; and Berger v. California (1969), 393 U. S. 314.

No error was here alleged which attacked “the very integrity of the fact finding process. ’ ’ Linkletter v. Walker, supra (381 U. S. 618).

With full cognizance of the United States Supreme Court’s guidelines, as established in Linkletter, supra, and of the trifurcated test described in Stovall, supra, it is our opinion that this court’s decision in State v. Sims should not be given retroactive application to the cause under review here which dates back to 1964.

The judgment of the Court of Appeals is, therefore, affirmed.

Judgment affirmed.

Schneider, Leach and Brown, JJ., concur.

O’Neill, C. J., Herbert and Stern, JJ., dissent.

1 The legal conclusions sought to be dogmatized’ in footnote No. 8 of the dissenting opinion, herein, must have had origin in nubibus or perhaps in gremio magistrates inasmuch as they are contrary to the established doctrine of the United States Supreme Court that an ‘•opinion must '->e read as a whole in view of the facts on which it was based. The facts are the foundation of the entire structure, which cannot with safety be used without reference to the facts,”