Opinion
No. 68-93
Decided June 19, 1968.
Criminal procedure — No record as to counsel — Whether counsel represented accused on plea of guilty, question of fact — Postconviction relief — Duty of court of conduct hearing.
APPEAL from the Court of Appeals for Franklin County.
This case is before the court on an appeal from the judgment of the Court of Appeals affirming the judgment of the trial court denying appellant relief on his petition under the Postconviction Remedy Act without a hearing.
In November 1955, appellant was arrested and charged with three burglaries. At his preliminary hearing, he pleaded guilty and was bound over to the grand jury. In late November, an attorney appeared on his behalf and obtained a reduction in bail. In December 1955, he was indicted, and, upon arraignment, pleaded not guilty. On January 11, 1956, appellant appeared in open court and pleaded guilty to two of the three counts of the indictment, and the third was nol-prossed. There is nothing in the record to show whether appellant had counsel, whether he was advised of his right to counsel, or whether he voluntarily waived his right to counsel at any of the times mentioned above, except for the single recorded appearance of counsel for reduction in bail. There is no entry of withdrawal of that counsel in the record.
In 1965, appellant commenced this postconviction action, alleging that he was denied his right to counsel, and that counsel who appeared for the reduction in bail was hired by his family for that purpose only.
Mr. C. Howard Johnson, prosecuting attorney, and Mr. David H. Bodiker, for appellee.
Mr. Edwin Harry Bryant, in propria persona.
Whether appellant was represented by counsel when he pleaded guilty to burglary is a question of fact which can be resolved only after an evidentiary hearing. In a case where an accused is not represented by counsel at the time he pleads guilty and the record does not show whether the accused was advised of his right to counsel or that he intelligently waived counsel, it is incumbent on the court in a postconviction proceeding to conduct a hearing on such questions and make findings of fact in relation thereto. State v. Smith, 12 Ohio St.2d 7; State v. Perry, 10 Ohio St.2d 175.
A presumption that appellant was represented by counsel when he pleaded guilty, based on the absence of an entry of withdrawal of counsel who allegedly appeared only for a limited purpose, will not suffice to deny relief without a hearing. At such hearing, the facts relating to representation by counsel, or the explanation and possible waiver of appellant's rights thereto may be determined and there will be no need to indulge in presumptions from a silent record. See Carnley v. Cochran, 369 U.S. 506.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings according to law.
Judgment reversed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.