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
*212 O’CONNELL, J.,.
dissenting.
;' In the present ease there is no basis for arguing that the accused was deprived of his right to appeal because of his indigency. He was deprived of review by this court simply because his counsel failed to timely file ,a notice of appeal.
McKane v. Durston, 153 US 684 , 14 S Ct 913 , 38 L Ed 867 (1894) holds that a review by an appellate court of the final judgment in a criminal case is not a necessary element of due process of law. That case has not been overruled. Our own cases are to the same effect. See, e.g., Gairson v. Gladden, 247 Or 88 , 425 P2d 761 (1967).
Douglas v. California, 372 US 353 , 83 S Ct 814 , 9 L Ed2d 811 (1963); Lane v. Brown, 372 US 477 , 83 S Ct 768 , 9 L Ed2d 892 (1963), and Anders v. California, 386 US 738 , 87 S Ct 1396 , 18 L Ed2d 493 (1967), relied upon by the majority, are not to the contrary. They merely hold that if appeal procedure is provided it must be made available equally to the rich and the poor.' These decisions rest upon the equal protection clause of the Fourteenth Amendment; they do not hold that appellate review is necessary to satisfy the due process requirement of the Fourteenth Amendment.
Apparently the majority accepts the view that appellate review of a judgment of conviction is not a necessary element .of due process and that the legislative assembly could entirely eliminate criminal appeals. The reasoning must be, then, that although appellate review may be wholly abolished, pnce.it is granted by the legislature the state must, as a matter of‘constitutional law, take such additional action as is necessary to see that all defendants, whether rich or poor, do not lose their right to appeal through *213 their own ignorance of their rights or through their own negligence or the negligence of their attorney, appointed or retained. The state’s failure to act under these circumstances is deemed by the majority to be “state action” within the meaning of the Fourteenth Amendment.
According to this reasoning it is not enough for the state to see that the accused has counsel — the state must also see that counsel carries out his duties in perfecting a timely appeal. This, it is said, is necessary in order to satisfy the requirements of due process.
It seems to me that this reasoning can be supported only upon the premise that the accused must be afforded a right to appellate review as a matter of due process. The majority is saying, in effect, that appellate review is so important to safeguard the accused’s rights, it is not enough that he be given counsel, but that he must be assured the right of appeal if he desires it. If appellate review is this important, it is a necessary element of due process and the state could not abolish it. We might so interpret our own constitution (Oregon Constitution, Article I, §10), but until we do there is nothing compelling us to take the position which the majority takes in the present case. Under the view now adopted if the accused was not informed by his counsel that he had a right to an appeal, the state would have to inform him or give him a delayed appeal. Since this is directly contrary to Gairson v. Gladden, 247 Or 88 , 425 P2d 761 (1967), that case should be overruled.
I think that the majority has been driven to its misinterpretation of the due process clause of the Fourteenth Amendment and the “due course of law” provision of Oregon Constitution, Article I, § 10 because *214 it finds abhorrent the idea that a man could lose the right to appeal through no fault of his own. I, too, find the spectacle distasteful, but I think that it is for the legislature and not for us to correct this defect in bur criminal procedure.
It is to be borne in mind that the view I take does not deny relief to an accused who asserts that the judgment of conviction was void because his constitutional rights were violated in the procedure leading uj) to judgment. In that case he is entitled to post-conviction relief under OES 138.510 to 138.680.
Perry, C. J., concurs in this dissent.