stating that “[t] he 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” and “[s]ince 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”
How later courts described this case
- stating that “[t] he 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” and “[s]ince 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”
- holding that “unless appropriate relief is granted the denial of petitioner’s rights that occurred in this case will render his conviction void” and that “the Post-Conviction Hearing Act authorizes the granting of a delayed appeal when necessary to rectify a substantial denial of constitutional rights”
- holding, prior to enactment of ORS 138.071(4)(a), that, based on due process considerations, petitioner was entitled to a delayed criminal appeal where his criminal trial counsel failed to file a timely appeal
- holding, in criminal context, that “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”
Written by the judges who cited it.
The opinion
DENECKE, J.,
specially concurring.
I specially concur to state that in my opinion the Due Process Clause can only be invoked when there is *205 state action. The Sixth Amendment is made applicable to the states only through the Fourteenth Amendment. The Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” I find the requisite state action present in the instant case. Such action consists of the state continuing to confine the defendant and refusing to grant the defendant an appeal although the defendant timely ordered his attorney to appeal and the statute on appeals was not complied with because of the error of defendant’s counsel. Shelley v. Kraemer, 334 US 1 , 68 S Ct 836 , 92 L Ed 1161 , 3 ALR2d 441 (1948).