dissenting.
The majority holds in effect that since a right to appeal is not a due-process right but an equal-protection right, a right to counsel on appeal is likewise not a due-process right but an equal-protection right. Thus far I agree. I do not concur, however, in the view that the right to counsel on appeal, whatever its pedigree, can be waived by unwitting defendants.
Whatever logic may be marshaled in support of the majority view, the majority seems to me to be inconsistent with our own cases: e.g., State v. Neely, 239 Or 487, 395 P2d 557, 398 P2d 482 (1965). The majority concedes that its view is contrary to the holdings of the United States Court of Appeals for the Ninth Circuit. See, e.g., Doyle v. United States, 366 F2d 394 (9th Cir 1966).
I would prefer to hold uniformly in criminal cases that an unwitting waiver is not a waiver, and that a prisoner refused representation on appeal by retained counsel because the prisoner lacks funds is entitled to be told that he has a right to appeal at public expense. If an occasional retained counsel neglects to tell his client of his rights and thus imposes a burden on the courts, then it is a burden they ought to carry. It takes only a moment to ask a prisoner after sentence if his counsel has told him of his rights to an appeal. If not, the court can tell him that if he cannot afford an appeal he is entitled to one at public expense. Such advice may breed a frivolous appeal now and then, but it will avoid the protracted litigation in state and *93federal courts for which the instant case appears to be destined. Fay v. Noia, 372 US 391, 83 S Ct 822, 9 L Ed 2d 837 (1963), requires a considered choice on the defendant’s part. There was no such choice in this case.
I dissent.
Sloan, J., joins in this dissent.