Opinion
No. 38797
Decided July 1, 1964.
Criminal law — Competency of counsel not cognizable in habeas corpus proceeding — Ability of trial judge as affecting conviction — Regularity of process by which accused apprehended — Conviction not affected thereby.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In December 1959, the Grand Jury of Stark County returned an indictment charging petitioner, Forest Hiram Swogger, with carnal knowledge of a female under 12 years of age. He retained counsel of his own choosing, which counsel was subsequently appointed by the court to represent him, due to petitioner's lack of resources. A plea of not guilty and not guilty by reason of insanity was entered. Petitioner was sent to Lima State Hospital for observation. Upon his return from that institution, petitioner, in open court, changed his plea to guilty, and, the court, having determined petitioner to be a psychopathic offender, sentenced him to the Ohio Penitentiary and committed him to Lima State Hospital. In October 1961, it being found that petitioner no longer required observation, he was transferred to the Ohio Penitentiary.
Mr. Forest Hiram Swogger, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner's primary contention is that he was denied the effective assistance of counsel. He contends that his counsel represented him in a manner contrary to his wishes. Petitioner bases this argument on his own statement that counsel entered the plea of guilty for him contrary to his wishes. Competence of counsel is not cognizable in a habeas corpus proceeding but must be raised on appeal. Gallagher v. Maxwell, Warden, 175 Ohio St. 440. However, petitioner's argument is completely refuted by the trial transcript made at the time the guilty plea was entered. As shown by this transcript, the court asked petitioner personally whether he desired to change his plea, and petitioner himself stated, "yes," and entered a plea of guilty. Thus, a matter of fact, petitioner, not his attorney, entered the plea.
Next, petitioner contends that he was denied due process on the ground that the trial judge was under a disability. To substantiate this point, petitioner, assuming his statement is correct, would have to indicate in what manner the disability of the judge affected petitioner's conviction. There is nothing in the record which would indicate that petitioner was denied any of his rights.
Finally, petitioner urges that his conviction was void because he was arrested without a warrant. It is well established that the validity of an accused's conviction is not affected by the regularity of the process by which he was apprehended. Brown v. Maxwell, Warden, 174 Ohio St. 29; Jetter v. Maxwell, Warden, 176 Ohio St. 219; and Wells v. Maxwell, Warden, 174 Ohio St. 198.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.