We think that, according to constitutional standards enunciated by the United States Supreme Court since the time this case was heard in the state courts, relator was denied the right to counsel on direct appeal from his conviction. We do not deem it necessary to hold a hearing because the necessary facts are apparent from the record of the trial and from testimony in the state hearing. At trial, following the return of the jury's guilty verdict, relator indicated to the court that he felt that there had been legal errors in the proceedings against him, and that he wished to seek redress by moving for a new trial and, if necessary, appealing to a higher tribunal. He stated that: "* * * I don't think I should be convicted in this case. I think the higher Court should hear this." (N.T. 101) At this point relator's trial counsel stated that he knew of no legal reason to advance as grounds for a new trial (N.T. 101), and asked leave of court to withdraw from the case. The court agreed, saying "Very well. I suppose you (i.e. Relator) can make your own motion." (N.T. 103) Relator thereupon pursued his motion for a new trial and his appeal pro se.
It is now well established that the equal protection clause of the Fourteenth Amendment requires the state to appoint counsel for indigents after conviction to prosecute their first appeal as of right. Even if the court and trial counsel do not think that there are any errors in the record, the indigent convicted is entitled as a person of means would be to "benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf * * *." Douglas v. California, 372 U.S. 353, 358, 83 S. Ct. 814, 817, 9 L. Ed. 2d 811 (1963). This decision is to be applied retroactively. See McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968). It is possible, of course, for this right to be waived, but such a waiver to be effective must be an intelligent relinquishment of a known right. The fact that an indigent does not specifically request counsel on appeal cannot in itself be construed as a knowing and intelligent waiver. As the Supreme Court said in Swenson, Warden v. Bosler, 386 U.S. 258, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967), "When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from defendant's failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel." 386 U.S. 258, at 260, 87 S. Ct. 996 at 998, 18 L. Ed. 2d 33.
It is clear from the record of trial that relator felt that there were legal errors in proceedings against him and that he desired to have his case presented to an appellate court. From the fact that relator's trial counsel withdrew and that relator was prepared to commence an appeal of his own accord, the question of whether relator was appealing pro se because he could not afford to retain counsel
should have been pursued. Commonwealth v. Ezell, 431 Pa. 101, 104, 244 A.2d 646 (1968)
Under such circumstances, it should appear on the record that the accused knew of his right to counsel, and that he made an intelligent waiver of that right. Beasley v. Wilson, 370 F.2d 320 (9th Cir. 1966); Cranford v. Rodriguez, 373 F.2d 22 (10th Cir. 1967). Relator clearly knew of his right to appeal, but there is nothing on the record to indicate that he knew of his right to counsel on appeal.
In view of the fact that relator did take a pro se appeal from the verdict here complained of, and that his case has been reviewed numerous times on collateral attack petitions prepared by this petitioner with uncommon legal proficiency, the possibility of error being found on appeal at this point might seem slight indeed. However, there may be some error which relator is precluded from raising by way of post-conviction remedies, and which he neglected to urge on direct appeal due to lack of counsel. Therefore, if the state does grant him an appeal nunc pro tunc with the assistance of counsel, he will then be able to raise questions which he might have raised on direct appeal from his conviction had he had counsel at that time.
Although we consider relator's other claims to be lacking in merit in view of our decision in another application by him, United States ex rel. Sliva v. Rundle, 222 F. Supp. 774 (D.C.1963), and the decisions of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), we will dismiss them without prejudice due to the possibility of further state proceedings.