Opinion
No. 36913
Decided June 14, 1961.
Habeas corpus — Not proper remedy to review irregularities in sentencing an accused.
IN HABEAS CORPUS.
Petitioner, Baker, was indicted for the crime of armed robbery, appeared in open court for arraignment, was represented by counsel, and through counsel waived the reading of the indictment and entered a plea of guilty. He was sentenced to the penitentiary.
On appeal, the Court of Appeals found that there was error prejudicial to the defendant in that the trial court did not ask him whether he had anything to say as to why judgment should not be pronounced against him, and the Court of Appeals remanded the cause "for the sole purpose of resentence of the defendant as provided by law." He was resentenced to a term of from ten to twenty-five years, the same as the first sentence.
He now seeks his release from incarceration by this proceeding in habeas corpus, instituted in this court, contending that he is being confined without due process of law and in violation of his constitutional and statutory rights by reason of the fact that he was denied the right of counsel at the time of resentencing.
Mr. James N. Baker, in propria persona. Mr. Mark McElroy, attorney general, and Mr. Aubrey A. Wendt, for respondent.
Habeas corpus cannot be used to review alleged irregularities in the resentencing of an accused by a court of competent jurisdiction. Ex parte Shaw, 7 Ohio St. 81; Ex parte Hagan, 25 Ohio St. 426.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.