dissenting.
I am unable to agree with the majority that a federal constitutional question is raised under the facts of this ease.
The Fourteenth Amendment to the Constitution of the United States, so far as applicable, reads as follows:
“® * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; * *
It is quite cleár from a mere reading of the above amendment, and without the necessity of citations of authority, that this- amendment is a prohibition against state action.
The thrust of the decisions of the Supreme Court of the United States is -that due process requires the indigent defendant shall have the same rights before the law that is enjoyed by a person “of means”, and that state action is found in the failure of the state *206to provide the necessary means of perfecting and carrying out of an appeal by an indigent that is afforded one who is able to pay for these means.
This is disclosed in Douglas v. State of California, 372 US 353, 355, 83 S Ct 814, 9 L ed 2d 811 (1963), which quotes with approval the language from Griffin v. People of State of Illinois, 351 US 12, 19, 76 S Ct 585, 100 L ed 891, 55 ALR2d 1055:
“ ‘=!i * * There can be no equal justice where the kind of an appeal a man enjoys depends on the amount of money he has.’ ”
Again in Douglas v. State of California, supra, 9 L ed 2d at p. 813:
“* * * In Griffin v. Illinois, 351 US 12, 100 L ed 891, 76 S Ct 585, 55 ALR2d 1055, we held that a State may not grant appellate review in such a way as to discriminate against some convicted defendants on account of their poverty. There, as in Draper v. Washington, 9 L ed 2d 899, the right to a free transcript on appeal was in issue. Here the issue is whether or not an indigent shall be denied the assistance of counsel on appeal. In either case the evil is the same: discrimination against the indigent. For there can be no equal justice where the kind of an appeal a man enjoys ‘depends on the amount of money he has.’ Griffin v. Illinois, supra (351 US at p. 19).”
And again in Anders v. California, 386 US 738, 745, 87 S Ct 1396, 1400, 18 L ed 2d 493, 499, the court stated:
“This procedure will assure penniless defendants the same rights and oportunities on appeal— as nearly as is practicable — as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.”
*207I am able to agree with the majority that the time for appeal is a critical time for the assistance of counsel, and that the failure of counsel to file within the statutory time amounts to ineffective assistance of counsel, but I am unable to ascertain what relevance this has to the facts of this case.
The facts in this case are that the petitioner had employed his own counsel and his counsel had agreed to perfect the appeal, but through his counsel’s neglect the statutory time for appeal passed. Wherein then did state action prevent petitioner’s appeal? There is no showing that petitioner was in any way lacking in a right to an appeal or the means of perfecting it.
The only answer then that can logically be given is, while the state may provide for the orderly dispatch of cases by setting a reasonable time in which to appeal, it cannot enforce that statute in criminal cases. This simply means that an appeal in criminal cases is a matter of right. This view was rejected by this court in Gairson v. Gladden, 247 Or 88, 425 P2d 761 (1967).
While the language of the Illinois Supreme Court in People v. Brown, 39 Ill2d 307, 235 NE2d 562, a case involving a direct attack, not a collateral attack, upon the judgment, observed the concern of the Supreme Court of the United States to provide “that any defendant who so desires can obtain at least one full appellate review of his conviction,” it did not say this right was unlimited. Nor did the Illinois court find a federal constitutional violation upon which to base its decision, but based its decision on what might be considered a desirable social policy, as the matter lay within the discretion of the appellate court.
*208In Brown the notice of appeal was filed within the statutory period and later the case was dismissed by the appellate court for lack of prosecution. The court stated, 235 NE2d at p. 565:
“* * * This distinction in itself mitigates against inflexibly applying this agency rule to waive substantive rights of defendants in criminal prosecutions. Further mitigation against adhering to an inflexible application of this rule stems from the realization that the dismissal of an action for want of prosecution is within the discretion of the hearing court, with the right to reinstate likewise being a matter of judicial discretion (Combs v. Steele, 80 Ill. 101).
* * In keeping with this judicial attitude, and in light of the exceptional circumstances surrounding the defendant’s representation at the appellate level, principally the strong inference that his lawyer had no intention of prosecuting his appeal, we hold the instant case is not a proper one for application of the general rule that a client is bound by the acts or failure to act of his lawyer. In so holding, we find it irrelevant whether the attorney was paid for the appeal, since in the event on nonpayment his proper remedy would have been to move to withdraw from the ease rather than take no action and thereby forfeit defendant’s appeal rights.”
Other decisions cited by the majority find a constitutional denial in the indigency of the convicted appellant, or state action preventing a defendant from exercising his statutory rights.
In United States v. Reincke, 383 F2d 132 (2nd cir., 1967), a case in which the facts cry out for relief, the defendant had retained counsel at the trial. After conviction he advised his retained- counsel of his de*209sire to appeal. "When his retained counsel learned, he was without fluids to finance the appeal, he resigned without informing the defendant that as an indigent he would be furnished counsel for the appeal. This lack of knowledge of the right to an appeal through court appointed counsel forms the basis of the deei-. sion. Note 7 of the opinion (p. 134) clearly discloses this:
“It is also arguable, though the point was not raised on this appeal and we need not decide it, that drawing a distinction between cases in which the assistance of counsel on appeal was expressly requested of the State, e.g., Pate v. Holman, 341 F.2d 764 (5 cir. 1965), and those in which no such request was made, e.g., United States ex rel. Bjornsen v. LaVallee, 364 F.2d 489 (2 cir. 1966), is no longer permissible in light of the Supreme Court’s emphasis in Miranda v. State of Arizona, 384 U.S. 436, 473, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) upon the importance of advising all defendants, whether they appear to be rich or poor, knowledgeable or ignorant, of their constitutional right to receive the assistance of counsel from the onset of the accusatory stage in criminal proceedings, a right which also extends, of course, to the appellate stage, Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed. 2d 811 (1963).”
Thus the wrongful state action was found to lie in the failure of the court to advise the party of his right to appeal whether he had the financial means or not. This view was also rejected in Gairson v. Gladden, supra. Reincke cannot be considered as authority for holding that the delay of paid counsel in filing timely appeal is the denial of a constitutional right.
I can agree with the majority that the Supreme Court of the United States has expressed concern with the view that a convicted person should have at *210least one appeal, but at no point have they ever said this is an unqualified right that may be enforced against the states through the Fourteenth Amendment. Each opinion is quite to the contrary. Anders v. State of California, 386 US 738, 87 S Ct 1396, 18 L ed 2d 493 (1967); Swenson v. Bosler, 386 US 258, 87 S Ct 996, 18 L ed 2d 33 (1967); Shockey v. Illinois, 375 US 22, 84 S Ct 83, 11 L ed 2d 43 (1963); Douglas v. People of California, 372 US 353, 83 S Ct 814, 9 L ed 2d 811 (1963); Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733 (1963).
The difference between the burden placed upon the state when the state retains counsel for an indigent and. the burden placed upon a person able to procure his own counsel is ably set forth in United States ex rel Darcy v. Handy, 203 F2d 407, 425-426 (C.A. 3), cited with approval in Davis v. Bomar, 344 F2d 84, 87 (6th cir, 1965):
“ ‘The concept of due process of law contained in the Fourteenth Amendment unquestionably involves the right to have the assistance of counsel for one’s defense in a criminal case. The amendment, however, is directed only to action by a state and its command in this regard accordingly is that the state through its officers shall not deny to a defendant in a criminal case the effective assistance of counsel for his defense. This may well impose a definite obligation upon the state through its courts to appoint competent counsel for indigent defendants in criminal cases. There is, however, as Judge Huxman pointed out in Hudspeth, Warden v. McDonald, 10 Cir., 1941, 120 F2d 962, 968, “a vast difference between lacking the effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel.” It is the latter only for which the state is responsible, the former being normally *211the sole responsibility of the defendant who selected his counsel. * * * (Emphasis supplied.)
“ ‘When counsel is retained by a defendant to represent him in a criminal case he acts in no sense as an officer of the state. For while he is an officer of the court his allegiance is to his client whose interests are ordinarily diametrically opposed to those of the state. It necessarily follows that any lack of skill or incompetency of counsel must in these circumstances be imputed to the defendant .who employed him rather than to the state, the acts of counsel thus becoming those of his client and as such so recognized and accepted by the court unless the defendant repudiates them by making known to the court at the time his objection to or lack of concurrence in them.’ ”
As recently as March 26, 1969, the Supreme Court of Tennessee cited with approval Darcy v. Handy, supra, and Davis v. Bomar, supra. State ex rel Robert E. Richmond v. C. Murray Henderson, Warden, — Tenn —, 439 SW2d 263.
These cases alone have considered the burden of Federal due process placed upon the state where there has been no affirmative action by the state to prevent a defendant from exercising the privileges granted to all persons.
In my opinion this court should not attempt to envisage the future actions of the Supreme Court of the United States or leave the impression that its decision made this day is compelled by the Supreme Court.
Since the state provided a right of appeal and in no way prevented or misled the defendant to his detriment, I am unable to discover wherein the. defendant’s constitutional rights were denied him.
I would reverse the judgment of the trial court.