People v. Mallory

¶1(concurring in reversal). Mr. Justice Jackson, concurring in McGrath v. Kristensen (1950), 340 US 162 (71 S Ct 224, 95 L ed 173), gracefully and forthrightly acknowledged error in a prior opinion he had rendered as attorney general and, in the process, he assembled for us other memorable examples of judicial recantations. His own and *561some others included in his opinion are set forth in the margin.1

¶2I should like to think; that I shall display as much candor and grace as did Justice Jackson whenever it becomes necessary for me to “recede from a prior opinion that has proven untenable and perhaps misled others”. This appeal, however, does not present an occasion for my confession of error, Mr. Justice Black’s current opinion herein notwithstanding.

¶3In his current opinion Justice Black breaches that confidence which traditionally has surrounded views expressed in the sanctity of the Court’s conference room, in private discussions among the Justices, and in draft opinions never subscribed for *562a variety of reasons. He discloses publicly a view I expressed in a draft opinion and then retracted before judgment, not because of persuasion of error but, rather, because further reflection upon my colleagues’ contemporaneous views suggested to me a sounder appellate basis for our judgment. Whether I was right or wrong in the views I subsequently retracted is not important now, for those views remain retracted by me and would have misled no one had they not been resurrected by Justice Black. What is important, however, is Justice Black’s implicit threat to the continued privacy of our deliberations upon pending appeals.

¶4It has been my understanding that views expressed by judges of an appellate court while deliberating upon their decisions are confidential until they appear in an opinion, if they ever do, over the signature of the author. Such privacy permits judges to discuss freely among themselves all issues involved in a case, to advance tentative views for the sometimes enlightening reactions of wiser colleagues and to criticize candidly and sometimes bluntly the notions offered by other colleagues, all without fear of subsequent embarrassment to any member of the Court by public disclosure of anything said or written which does not survive the ordeal as a subscribed formal opinion.

¶5In my judgment such freedom of expression in camera should be encouraged among Justices whose duty it is to strive, at least, to reach majority accord when that can be achieved without compromise of legal principles. Such freedom should not be inhibited by the threat of public disclosure as Justice Black has done today.

¶6I agree with Mr. Justice Dethmers, but for reasons somewhat different from those stated by *563him, that the trial judge erred iu denying defendant’s request, as an indigent, for appointment of appellate counsel and for a free copy of his trial transcript in order to appeal his conviction of a misdemeanor cognizable by a justice of the peace. I also agree with Justice Dethmers, and based upon the reasons and authorities he cites, that the defendant’s service of his misdemeanor jail sentence, under the circumstances of this case, does not render a future appeal of that conviction moot so as to justify the trial judge’s denial of the defendant’s request, without a finding that he is not indigent, for appointment of appellate counsel and for the trial transcript.

¶7Defendant was convicted on May 11, 1964, by a judge of the recorder’s court for the city of Detroit, sitting without a jury, of the misdemeanor2 of receiving and concealing stolen property of a value under $100. After service of his 90-day jail sentence imposed upon conviction of this offense, defendant was imprisoned and there remains, it is fair from this record to say, as a consequence of his misdemeanor conviction, the State’s parole board having revoked defendant’s parole from a prior felony imprisonment because of defendant’s misdemeanor conviction.

¶8Effective August 1,1964, this Court amended GCR 1963, 785 by adding a new subrule .4. Subrule 785.4 is subdivided into two distinct parts. The first subpart, 785.4(1), applies to all criminal cases in which sentence is imposed on or after August 1, 1964, the effective date of the amendment. That sub-part requires, inter alia, that the sentencing judge advise the defendant at the time of sentencing of his constitutionally granted right to appellate review of his conviction (Const of 1963, art 1, § 20)3 and, if *564the defendant is nnable financially to retain his own attorney for snch purpose, that the trial judge will appoint counsel for him and will furnish whatever portions of the trial transcript are needed by such counsel. Subpart 785.4(1), in its entirety, reads as follows:

“.4 Appellate Court Review.

“(1) Right to Timely Appeal. Hereafter, immediately upon sentencing, the court shall advise the defendant in open court that he is entitled as a matter of constitutional right to appellate review of his conviction and that, if defendant is financially unable to provide counsel to perfect such appeal, the court will appoint counsel for him and will furnish counsel with such portions of the trial transcript counsel requires to prepare postconviction motions and to perfect an appeal. The court shall further advise defendant that such request for the assistance of counsel must be made within 60 days on a form to be given to defendant by the court. *565Proceedings hereunder shall he stenographically recorded and a transcript thereof promptly made and filed with the clerk of the trial court as a part of the record of the case.”

¶9Almost a year and a half before our Court belatedly adopted subrule 785.4, the United States Supreme Court, in Douglas v. California (1963), 372 US 353 (83 S Ct 814, 9 L ed 2d 811), had ruled that when a State accorded a right of appeal to defendants convicted of crimes, as Michigan does now, it was obliged by the requirements of the equality clause of the Fourteenth Amendment of the United States Constitution to provide indigent appellants the assistance of counsel on appeal in order to avoid discrimination between rich and poor. In the Douglas Case, California provided for appellate review of criminal convictions as a matter of right, but it did not require the appointment of appellate counsel for indigent defendants requesting such assistance unless the appellate court first made an independent investigation of the record and determined that it would be advantageous to the defendant or helpful to the appellate court to have counsel appointed.

¶10The United States Supreme Court held that California’s denial of appellate counsel to those indigent defendants whose requests therefor did not survive the appellate court’s preliminary investigation of the trial court record, thereby forcing the indigent to prosecute his appeal as of right without the assistance of counsel, constituted an invidious discrimination between rich and poor in violation of the equality clause of the Fourteenth Amendment of the United States Constitution. The Supreme Court said (pp 357, 358):

“where the merits of the one and only appeal an indigent has as of right are decided without benefit *566of counsel, we think an unconstitutional line has been drawn between rich and poor. …

“The present case, where counsel was denied petitioners on appeal, shows that the discrimination is not between ‘possibly good and obviously bad cases,’ but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel’s examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is uncleár or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal.”

¶11On the same day the United States Supreme Court decided Douglas, supra,it also decided Lane v. Brown (1963), 372 US 477 (83 S Ct 768, 9 L ed 2d 892), and Draper v. Washington (1963), 372 US 487 (83 S Ct 774, 9 L ed 2d 899). The essence of those decisions is that, when a State grants an appeal as of right, it may not discriminate between rich and poor by denying to an indigent appellant the use of a trial transcript if such transcript may be purchased by an affluent appellant for use in presenting his appeal. See, also, Griffin v. Illinois (1956), 351 US 12 (76 S Ct 585, 100 L ed 891). Mr. Justice Goldberg, in Draper, put the matter succinctly (p 496) :

“In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds — the State must provide the indigent defendant with means of presenting his contentions to the appellate' *567court which are as good as those available to a non-indigent defendant with similar contentions.”

¶12None of the 1963 cases so far discussed, Douglas v. California, Lane v. Brown, and Draper v. Washington, was decided on the basis of the Sixth Amendment of the United States Constitution, as was Gideon v. Wainwright (1963), 372 US 335 (83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733), and other similar Federal and State cases concerned with the question whether a State is obliged constitutionally to provide trial counsel for an indigent person to be tried in its criminal courts. .Instead, Douglas, Lane, and Draperwere planted squarely upon the equality clause of the Fourteenth Amendment. For that reason Gideon v. Wainwright and other similar Federal and State cases cited to us by the parties hereto, are not apposite to the narrow issue presented in this appeal involving an indigent’s right to appellate counsel and to trial transcript. In the event defendant succeeds subsequently in prosecuting an appeal challenging the validity of his misdemeanor conviction, there will be time enough for this Court to determine whether his conviction without the assistance of trial counsel, an issue not presently before us, offends the Sixth Amendment as applied to the States in Gideon and, so, must be set aside for a new trial.

¶13Considered in the context of Michigan’s new constitutional guarantee of appellate review as of right, it cannot be doubted that Douglas v. California, Lane v. Brown, and Draper v. Washingtonrequire Michigan to appoint appellate counsel and to furnish trial transcripts for indigents in all criminal cases which now in this State may be appealed as of right. These are the requirements, of Federal constitutional magnitude, announced by the Supreme Court in Douglas, Lane and Draper, that this Court im*568plemented by adoption of subpart 785.4(1) of tbe rule.

¶14But subpart 785.4(1) had not been adopted when defendant Mallory was convicted. Thus that part of the rule avails him nothing now, although it could be argued that had he claimed an appeal as of right within the time therefor then provided by GCB-1963, 803, as also amended January 21, 1964, he, as an indigent, would have been entitled to the services of appellate counsel and to be furnished trial transcript by the requirements of the equality clause of the Fourteenth Amendment as determined by Douglas, Lane, and Draper, even absent their timely implementation by us by rule. The- fact is that defendant Mallory did not attempt to perfect a timely appeal as of right, nor did he within such time assert his rights to trial transcript and to the appointment of counsel to assist him in doing so.

¶15Thus, if he has any rights to such transcript and to the appointment of appellate counsel now, they must be found elsewhere than in GCB. 1963, 785.4(1). That brings us to the second distinct part of the subrule added by our amendment effective August 1, 1964.

¶16While 785.4(1) applies prospectively, in the sense that it specifies procedures to be followed at sentencing in current criminal cases where timely appeal, as of right exists, 785.4(2) applies retrospectively, in the sense that it specifies the procedures for furnishing appellate counsel and free trial transcript to indigents in all other criminal cases completed through sentencing before August 1, 1964, the effective date of 785.4(1). Having been convicted and sentenced prior to the effective date of 785.4(1), defendant Mallory’s entitlement to the appointment of appellate counsel and to the use of a trial tran*569script must be found, if it exists by court rule as of right, in 785.4(2).

¶17Douglas v. California, supra,does not hold that a State must, as a matter of Federal constitutional requirement, appoint appellate counsel to assist an indigent in pursuing discretionary review of his criminal conviction. While it does not so hold, some have argued that the constitutional principles of equality which the Supreme Court relied upon in Douglas, and in Laneand Draperwith reference to the availability of trial transcript, apply as well to applications for discretionary review as they do to appeals as of right. See, pertinently, Burns v. Ohio (1959), 360 US 252 (79 S Ct 1164, 3 L ed 2d 1209). But whether the Supreme Court ultimately decides they do or they do not, this Court in promulgating GCR 1963, 785.4(2) said that in all other criminal cases than those current ones to which >785.4(1) applies, and that would include in 785.4(2) the criminal cases long since tried to conviction and sentencing, in which application for discretionary review may be filed, upon request by an indigent defendant our trial courts shall appoint counsel and shall furnish so much of the trial transcript as such counsel requires to prepare delayed motions for postconviction proceedings in the trial court and to prepare applications for leave to take delayed appeal.

¶18There is no discretionary power granted to trial judges in this subpart of the rule to refuse appellate counsel or trial transcript, once indigency is determined.

¶19It is this part of the rule which, by its express terms, required the trial judge to grant defendant Mallory’s request for appellate counsel and trial transcript upon proof of indigency. The trial judge’s refusal to do so requires our reversal,

¶20*570"Subpart 785.4(2), in its entirety, reads as follows:

“(2) Delayed Appeal. In all other criminal cases, application for leave to take delayed appeal may be filed pursuant to the provisions of Rule 806. Upon defendant’s request, if defendant is indigent, the trial court in which defendant was convicted shall appoint counsel for him and shall furnish such portions of the trial transcript counsel so appointed requires to prepare delayed motions for postconvictipn prpceedings in the trial ceurt and to prepare an application for leave to take delayed appeal. Requests for appointment of appellate counsel shall be in writing and accompanied by an affidavit of indigency setting forth the facts upon which defendant relies for support of his claim that he is too poor to employ counsel. Such written request and affidavit shall be filed in the trial court and a copy thereof shall”be served upon the prosecuting attorney of the county -in which the trial court is located. Counsel shall be- appointed by the trial court if, after hearing, the defendant is found to be indigent or if the prosecuting attorney does npt file objections within 30 days of service upon him of defendant’s request and affidavit of indigency. ■ Appeal fees shall be waived for indigent defendants for whom appellate counsel has been appointed by the court.”

¶21Hhving implemented, in subpart 785.4(1), the clear.' requirements of the Fourteenth Amendment, as construed in Douglas v. California, Lane v. Brown, and Draper v. Washington, article 1, § 20 of our Constitution of 1963 considered, it may be conceded, arguendo, that this Court was not obliged to do more than that by any United States Supreme Court decision. Yet this Court did go beyond the express requirements of Douglas, Lane, and Draperin adopting subpart 785.4(2) and it did so for sound reasons of public policy if not, indeed, for reasons of Federal constitutional compulsion.

¶22*571At the time we acted, in the summer of 1964, there had been granted the right of appeal in all criminal prosecutions only since January 1,1964, the effective date of our Constitution of 1963. Prior thereto this Court had recognized no such right in criminal cases except in those in which a prison sentence of one or more years had been imposed and that right we did not recognize until January 1, 1963. See G-CK, 1963, 806.2(3) prior to its amendment on January 21, 1964. Thus, when subrule 785.4 was adopted, of the 8,499 inmates of the State’s prisons, 3,640 had been convicted and sentenced before 1963 when there was no appeal as of right from any criminal conviction.4 Prom those 3,640 prisoners (whose number diminishes each day by death, service of sentence, and parole) and from those convicted and sentenced to imprisonment for more than one year subsequent to January 1, 1963, but who had not perfected appeals as of right, this Court continued to receive applications for leave to take delayed appeal for its consideration usually without references with pinpoint accuracy to the trial transcripts to support the claims made and without the beneficial assistance of appellate counsel in the translation of their inept pleas of injustice into the legal language judges can understand.

¶23Our published volumes of official reports through volume 374 bear silent witness to the infrequency of our grant of leave to appeal such cases. That errors meriting reversal existed in some at least of those cases, but were not revealed to our appellate gaze by the unskilled draftsmen of those applications, none can deny. On the other hand, other .applications were being filed in behalf of affluent *572prisoners who could afford not only the full trial transcript, sometimes even printed for our myopic eyes, but also skilled counsel to prepare and present carefully documented and scholarly briefs riddled with authoritative legal citations and references to the trial transcript to command our attention and our granted leave. Comparison of such applications and briefs, prepared by counsel, with those which were homemade by sometimes barely literate indigent prisoners, demonstrated that indigency alone was responsible for the gross disparity in their persuasive power.

¶24It seemed then to a majority of the Court, and it still seems so to us, that justice to those prisoners who were too poor to retain counsel required no less than that they at least be accorded the assistance of appellate counsel and be furnished trial transcripts to assist them in their attempts to persuade us that there was merit in our undertaking to review their convictions. We did not extend to such prisoners the right to appeal which had been granted, first by court rule and then by our new Constitution, to those convicted subsequent to January 1, 1963; what we did in subpart 785.4(2), instead, was to provide those indigent prisoners, not entitled to appeal their convictions as of right, with the professional skills and tools necessary to prepare more effectively than they could previously their applications for discretionary grant of leave to appeal.

¶25It is suggested that subrule 785.4 has applied heretofore only to felonies and, presumably, for that reason subpart 785.4(2) is not available to defendant Mallory. No such restriction appears in the language of the subrule. 785.4(1) of that subrule, considering its language in the light of Douglas v. California, Lane v. Brown, and Draper v. Washington, supra,certainly must reach as’ far as does article 1, *573§ 20 of our Constitution of 1963 by which, the right of appellate review is granted “in every criminal prosecution.” While there has been expressed in these opinions the view that such constitutional language may not apply to city and village ordinance violations, no one yet has claimed that our people in adopting it did not intend that it apply to statutory misdemeanors as well as to felonies.5 785.4(2) of *574the subrule applies to those criminal cases, whether misdemeanors or felonies, which were tried to conviction and sentence before the August 1, 1964 effective date of 785.4(1) and in which an application for discretionary grant of leave to appeal now is necessary if there is to be appellate review. As a practical matter, except for such rare cases as this case of Mallory and its companion, People v. Copeland, 378 Mich 611, where the misdemeanor convictions are the effective causes of defendants’ continued imprisonment notwithstanding their completion of service of the misdemeanor sentence, 785.4(2) will not be available to a misdemeanant simply because few, if any other, misdemeanants convicted and sentenced after the effective date of 785.4(1) still remain incarcerated as a result of such convictions. In the case of current convictions since adoption of subrule 785.4, whether of felonies or of misdemeanors, an indigent’s right to appellate counsel and trial transcript is measured by the time limitations contained in 785.4(1). If such right is not invoked timely, it may subsequently be granted but, as was previously our universal practice, only in the exercise of the inherent discretionary power of the trial or appellate court and not by virtue of anything required as of right either by 785.4(1) or 785.4(2).

¶26It may be noted, furthermore, that of all of the subrules of GrCR 1963, 785, only subrule 785.3 ever *575has been limited by express language to felonies. This Court currently is considering its express expansion to include some, if not all, misdemeanors.

¶27It has been suggested also that it would be anomalous to read subrule 785.4 as requiring appointment of appellate counsel to all indigent misdemeanants as well as felons while subrule 785.3.may not require appointment of trial counsel in some misdemeanor cases. That there is a lack of logical symmetry in this possibility cannot be denied. However, as Mr. Justice Holmes reminded us 85 years ago, in The Common Law, “The life of the law has not been logic: it has been experience.” Our own experience suggests that where opportunity exists for effective appellate review of trial court proceedings, such proceedings usually are conducted with greater diligence toward the rights of the accused and greater attention to the adequacy of the record to support what is done in the trial court. If this great society of ours yet cannot afford to appoint both trial and appellate counsel for every indigent charged with a misdemeanor and a choice must be made between the two insofar as those indigents are concerned who are charged with commission of the lesser misdemeanors, our experience suggests that a greater public benefit will be realized by providing the means for effective appellate review than by furnishing-trial counsel for all indigent misdemeanants.

¶28Furthermore, our people, having granted, in article 1, § 20 of our Constitution of 1963, appeals as of right “in every criminal prosecution,” by which no one has suggested yet it was intended to exclude any statutory misdemeanors, it is doubtful that denial of appellate counsel to such misdemeanants, or any of them, would withstand Federal constitutional challenge. See Douglas v. California, supra,discussed in the forepart of this opinion.

¶29*576Whether or not required by constitutional principles of equality, what we did in adopting subpart 785.4(2) reduced the likelihood that any of our people would remain imprisoned in this State as the result of convictions which could not withstand appellate scrutiny. There is no way by which we can determine how many trial judges have reversed their own prior decisions on postconviction proceedings in the trial courts since adoption of 785.4(2). However, data is available from which we can determine the incidence of reversible error found on discretionary appellate review after 785.4(2) was adopted and appellate counsel and trial transcript were made available to indigent prisoners to obtain and perfect such discretionary appellate review. That data6 and the opinions of the Court of Appeals *577which, since January 1, 1965, has heard and decided such appeals disclose that there have been a significant number of reversals for substantial errors which the defendants, unassisted by counsel and without trial transcripts, previously could not have persuaded a court merited review let alone reversal. Whether such asserted errors relate to the substan7 tive issue of guilt or innocence or to the procedure by which guilt is established, no defendant appearing in our courts should be denied, just because he is poor, the means effectively to persuade us that reversible error occurred and that a new trial should be granted. Justice requires no less in a society such as ours which regards equality as the essence of democracy and which guarantees to every man that measure of fair treatment by his government we call by the name of due process of law.

¶44(concurring in reversal). I join in Justice Black’s decision that, “until the Supreme Court speaks otherwise, I shall look upon the pertinent requirement of the Sixth Amendment and of our Constitution as being fully consistent with the petty offense exception made by the criminal justice act,” and I hereby register my objection and dissent to the recent August 24, 1966, amendment to Rule 785 of the General Court Rules of 1963 (effective January 1, 1967), requiring appointment of counsel to those charged with misdemeanors upon conviction for which the accused could be jailed for 90 days or more.

¶45*578I disagree with Justice Black’s affirmance and agree with Justice Dethmers’ reversal because defendant has served and is still serving a lengthy prison sentence in addition to a 90-day confinement in jail due to the fact that a recorder’s court judge, without a jury and without defendant being represented by counsel, pronounced judgment that defendant was guilty of a petty misdemeanor.

¶46The record discloses:

¶47(.1) A letter dated January 8, 1965, from the parole board, signed by Frank G-. Buchko, “Re: Alton Mallory, B-101696,” as follows:

“The above named man was paroled on 4-2-64 for a period of two years. He was returned to prison on 7-30-64 and at a parole violation hearing conducted on August 17, he was found automatically guilty of parole violation by reason of a conviction on 5-11-64 for receiving stolen property. He received a term of 90 days at the Detroit house of correction as a result of this conviction.” (Emphasis ours.)

¶48(2) Frank G. Schemanske, judge of the recorder’s court, on January 25, 1965, certified the “concise statement of proceedings and facts in support of the application for leave to appeal,” which statement reads:

“1. On May 11, 1964, Alton Mallory, defendant-appellant, stood charged and was convicted of the criminal offense of receiving and concealing stolen property under the value of $100 in the recorder’s court of the city of Detroit, by the Honorable Frank G. Schemanske, judge of the recorder’s court. Defendant was sentenced to 90 days in the Detroit house of correction, and the said 90 days have been served.

“2. Trial by jury had been waived. Defendant was not represented by counsel at the trial,

*579“3. On or about May 19, 1964, an attorney (on behalf of the defendant) made a motion for a new trial. The motion was withdrawn by the attorney on May 27, 1964, ánd never came on for a hearing. The 15-day period in which to make a motion for new trial in misdemeanor cases (as provided in Rule 26 of the recorder’s court of the city of Detroit) expired on May 26, 1964. .

“4. On September 25, 1964, defendant, in propria persona, made a motion for appointment of appellate counsel and for free transcript for appellate purposes.

“5. On October 29, 1964, defendant’s motion was denied by Judge Schemanske for .the reason ‘that the case is already moot, since the sentence has been served.’ ”

¶49(3) Defendant’s January 27,1965, affidavit (Court of Appeals) pursuant to GCR 1963, 806.3(3) (b), as follows:

“1. That he is the defendant and appellant in these proceedings.

“2. That although a motion for. a new trial was made in the lower court by an attorney on May 19, 1964, said motion was withdrawn by the attorney without the permission of defendant-appellant and never came on for a hearing.

' “3. That he is presently incarcerated in the State Prison of Southern Michigan, at Jackson, Michigan, for violation of parole. An automatic adjudication .of guilt of that offense was made when he was convicted of the instant offense of receiving and concealing stolen property.”

¶50(4) The order of the Court of Appeals, dated March 2, 1965:

“It is ordered that the application for delayed appeal be, and the same is hereby denied, the ques*580tion presented therein being moot, the case of People v. Pyrros, 323 Mich 329 controlling therein.”

¶51Justice Dethmers, considering the question of “mootness,” states:

“After the May 11, 1964, misdemeanor conviction, defendant was found guilty by the parole board of. parole violation and, after service of his 90-day misdemeanor sentence, was remanded to State prison as a parole violator and is still there as provided by law, serving the remainder of his sentence for the 1962 felony conviction. …

“Defendant’s misdemeanor conviction automatically brought about a finding by the parole board of parole violation or that, at least, that conviction was an element and factor in the parole violations charged against defendant and considered by the b,oard in mating its finding of parole violation. Accordingly, we consider the above cases cited by the people with respect to mootness inapt. Defendant’s present incarceration may well be considered a consequence, in part at least, of this misdemeanor conviction. More to the point is United States v. Morgan, 346 US 502 (74 S Ct 247; 98 L ed 248), in which the United States Supreme Court said (pp 512, 513) :

“ Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties … As the power to remedy an invalid sentence exists, … respondent is entitled to an opportunity to attempt to show that this conviction was invalid.’ ” (Emphasis ours.)

¶52Justice O’Hara writes:

“I do agree with Mr. Justice Dethmers that the appeal in this case is not dismissible as moot for the reasons he assigns and on the basis of the authority he cites.”

¶53*581I agree with Justices Dethmers and O’Hara.

¶54The parole board rules and our decisions* authorize the board in finding that defendant was “automatically guilty of parole violation by reason of a conviction on 5-11-64 for receiving stolen property.” The board does not have or exercise the right to pass appellate judgment on court decisions.

¶55Defendant does not challenge the board’s action, but asks for appellate review of the May 11, 1964, misdemeanor conviction that automatically placed him behind prison walls for a period that has not expired at the time I write this opinion.

¶56We are confronted with a misdemeanor charge and a felony penalty, and the same reasons that justify a finding that the case is not moot also justify granting defendant’s request to have counsel appointed for appeal.

¶57Repeating the words of the United States Supreme Court in United States v. Morgan, supra,defendant “is entitled to an opportunity to attempt to show that this conviction was invalid.”

¶58I agree with Justice Dethmers’ holding for reversal and remand.