COMMONWEALTH vs. ARTHUR A. GAUTHIER.

TAURO, C.J. On February 16, 1955, the defendant Gauthier was found guilty by a jury after being tried jointly with codefendants Donald F. Boisvert, Edward R. Beaulieu and Robert E. Weaver under G. L. c. 278, Sections 33A-33G, on indictments charging each with murder in the second degree, robbery, and conspiracy. [Note 1] Gauthier did not appeal. The three codefendants were found guilty on all the indictments except Boisvert who was found not guilty on the murder indictment. On appeal by the three codefendants judgments were affirmed. [Note 2] Gauthier filed a motion for a new trial on November 19, 1969 (almost fifteen years after the trial), and a hearing was held on November 24, 1970, under the authority of G. L. c. 278, Section 29 (see Earl v. Commonwealth, 356 Mass. 181). The motion was denied, and the defendant appeals on the following grounds:

(1) Counsel failed to prosecute an appeal; the defendant was not advised of his right to court appointed counsel on appeal; and in the absence of a knowledgeable and intelligent waiver of his right of appeal, the defendant was denied equal protection under the Fourteenth Amendment to the United States Constitution.

(2) An instruction on involuntary manslaughter was required by the evidence. (3) Supplementary instructions were improperly given to the jury in the defendant's absence without his effective waiver.

In the defendant's motion for a new trial he stated in part: "The facts of the event leading up to and including the incident which resulted in the death of the victim are aptly set forth in Commonwealth v. Beaulieu, supra. There is little need for elaboration of the facts at this

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point concerning the certain issues of law presented herein." The judge who heard the motion also presided at the original trial, and the entire transcript of that trial was admitted without objection at the hearing.

The defendant contends that even if he had been aware of his right to appeal, this was an empty formality since he was not advised of his right to appointed counsel on appeal. The pertinent evidence at the hearing on the defendant's motion was as follows. The defendant was represented at his trial by Mr. John R. Murphy (now deceased) and he was assisted in the preparation and certain other aspects of Mr. Alphonse S. Bachorowski who at one time had practised law with the defendant's father until his death in the 1940's. At the time of the trial, Mr. Murphy and Mr. Bachorowski were office associates. Mr. Bachorowski first became interested in the case at the request of the defendant's sister. He then arranged with Mr. Murphy, who is acknowledged to have been a capable trial lawyer, to undertake the case. Neither was appointed by the court and neither received any compensation.

After the defendant's conviction Mr. Bachorowski and Mr. Murphy informed the defendant of his right to appeal and told him that neither of them would represent him further. Mr. Bachorowski testified: "We told him what his rights were, that he had a right to appeal from the findings and verdict made by the Court and he had a right of twenty days to file that appeal. We also said, `You have a right of appeal to the Appellate Division from the sentence given you in this court. We will no longer represent you.' That was the end of it." [Note 3] No appeal was filed on behalf of the defendant by Mr. Bachorowski or by Mr. Murphy. A contributing factor in the decision was their opinion "that an appeal would not avail him and would not change the verdict." Mr.

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Bachorowski also testified that "Murphy's opinion was that . . . if he took an appeal, there was not enough evidence in there to upset the findings made by the jury."

In denying the defendant's motion for a new trial the judge found that "the defendant in testifying he was not properly and fully advised regarding his rights of appeal by his original counsel, Attorney John R. Murphy, deliberately and intentionally lied to this court . . . [and that] the defendant must have been completely aware of the appeals being taken by his pals, the codefendants, and hence knew all he needed to know if indeed he ever intended or wanted to appeal. The blunt truth of the matter is that he and his attorney had concluded that an appeal, if taken, would be fruitless." There was no evidence that the defendant was informed that he had a right to appointed counsel to prosecute his appeal. [Note 4]

Whether a defendant who is represented by retained counsel has a constitutional right to be informed of his right to appeal with the assistance of appointed counsel raises a question of first impression in this Commonwealth, and conflicting viewpoints have arisen in other jurisdictions.

The Supreme Court in Douglas v. California, 372 U.S. 353 (1963), reh. den. 373 U.S. 905, held that an indigent defendant has the right to appointed counsel on appeal. [Note 5] This decision was given retroactive effect in Smith v. Crouse, 378 U.S. 584 (1964).

In United States ex rel. Smith v. McMann, 417 F. 2d 648 (en banc) (2d Cir.) cert. den. sub nom. McMann v. Smith, 397 U.S. 925, the majority stated: "We think the only practical, logical and fair interpretation to be

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given to Douglas v. California is that it imposes upon the state a duty to warn every person convicted of crime of his right to appeal and his right to prosecute his appeal without expense to him by counsel appointed by the state, if he is indigent. The right to appeal at the expense of the state is mere illusion if the convicted indigent defendant does not know such a right exists. And the one way to make sure that he does know is to tell him so." Id. at 654.

The court based its decision on equal protection of the laws. It stated, "It is enough to establish the prisoner's right to federal collateral relief that by reason of his indigence he has been deprived of his right to appeal by the action or inaction of the judicial instrumentalities of the state in which the judgment of conviction was entered" (emphasis added). Id. at 654.

The court set forth that two basic factors must be present: "[T]he fact of indigence at the time of sentence and the fact that the prisoner did not know he could appeal without expense to himself." Id. at 655. [Note 6] This rule was followed by the Sixth Circuit in Goodwin v. Cardwell, 432 F. 2d 521.

The Third and Fifth Circuits have taken a contrary view. Their position is that "when a defendant has retained counsel of his own choosing the State cannot be held to have violated the constitutional right of an indigent to counsel on appeal, unless the need for appellate counsel is brought home to the State, either by the defendant's request for appellate counsel or because a responsible State official has actual knowledge that the defendant is indigent and desires to appeal his conviction" (emphasis added). Pate v. Holman, 341 F. 2d 764, 773 (5th Cir.), modified 343 F. 2d 546 (5th Cir.). [Note 7]

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Accord, Beto v. Martin, 396 F. 2d 432, 434 (5th Cir.); Gregory v. United States, 446 F. 2d 498, 499 (5th Cir.). See United States ex rel. Smith v. McMann, supra, at 657-659 (Friendly, J., dissenting); Goodwin v. Cardwell, supra, at 523-529 (O'Sullivan, J., dissenting).

The Third Circuit in United States ex rel. O'Brien v. Maroney, 423 F. 2d 865, found the position taken by the Fifth Circuit and "the dissent in the Second Circuit persuasive and sensible, especially as it relates to convictions which had become final long prior to the Douglas decision." [Note 8] Id. at 872. The court did not interpret the Douglas case "to suggest the presence of a threshold obligation of the state to inquire about the financial means of one who appears at trial with privately retained counsel and thereafter offers no indication that his financial resources have been exhausted." Id. at 871. [Note 9]

The distinction between the two positions is grounded on the concept of State action. There is no doubt that where the defendant has court appointed counsel at trial he is to be afforded appointed counsel for purposes of appeal. See Anders v. California, 386 U.S. 738. With representation by retained counsel, "[T]he mandate of the sixth amendment is implemented not by action of the state, but by action of the individual defendant." United States ex rel. O'Brien v. Maroney, supra, at 869.

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"State action is shown when a responsible official in the State's system of justice rejects a request for counsel or fails to take proper steps toward appointment of counsel for a convicted defendant when he has knowledge of the defendant's indigency and desire for appellate counsel. When an accused person retains counsel on the original trial, the State may rely on the presumption that the accused's lawyer will protect his client's rights on appeal. [Note 10] But that presumption is rebuttable" [Note 11] (emphasis added). Pate v. Holman, 341 F. 2d 764, 775 (5th Cir.). Accord, Harris v. Beto, 392 F. 2d 191 (5th Cir.); Worts v. Dutton, 395 F. 2d 341 (5th Cir.); Langford v. Alabama, 422 F. 2d 760 (5th Cir.), cert. den. 400 U.S. 851. Consequently "misfeasance by privately retained counsel is not state action and therefore does not constitute a deprivation of due process or equal protection." [Note 12] McGriff v. Wainwright, 431 F. 2d 897, 899 (5th Cir.). See Harris v. Beto, supra; Worts v. Dutton, supra.

Here, the defendant was represented by retained counsel at the trial. We are of the opinion that there was no obligation on the part of the trial judge to inform the defendant after conviction and sentence that he had a right of appeal and to court appointed counsel to prosecute the appeal. We find the cases in the Third and Fifth Circuits discussed above persuasive on this point as we do the dissenting opinion of Judge Friendly

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(joined by Chief Judge Lumbard and Judge Moore) in United States ex rel. Smith v. McMann, supra.

There was no error in the denial of the defendant's motion for a new trial.

Order denying motion for new trial affirmed.