Opinion
No. 38446
Decided February 26, 1964.
Habeas corpus — Parole — Effect on former sentences — Right to counsel — Failure to appoint before arraignment — Right to speedy trial — Waiver — Constitutional rights not violated.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In January 1946, the Grand Jury of Summit County returned two indictments against petitioner, Daniel Abram Everhart. The first of these indictments contained 11 counts of burglary and larceny, and the second contained seven counts of operating a motor vehicle without the owner's consent. At his arraignment, petitioner pleaded not guilty, and counsel was appointed to represent him. Subsequently, petitioner pleaded guilty to the counts in both indictments and was sentenced on each count, the sentences on the counts in each individual indictment to run consecutively but the sentences on the two to run concurrently. Thus, the sentences were for 11 to 165 years.
Petitioner was paroled in December 1949. In January 1950, he was indicted by the Grand Jury of Stark County on three counts of breaking and entering three different service stations in the night season on or about December 29, 1949. He pleaded not guilty at his arraignment, and counsel was appointed to represent him. Petitioner was tried to and found guilty by a jury. He was sentenced on all three counts, the sentences to run consecutively. He was returned to the penitentiary. In 1952, the Pardon and Parole Commission refused parole on this sentence but continued the parole on his 1946 conviction.
In June 1954, petitioner walked away from the London Prison Farm. He was apprehended in October 1955 in Denver, Colorado, and was returned to the Ohio Penitentiary. In November 1955, the Pardon and Parole Commission again refused a parole on his 1950 conviction and continued the parole on the 1946 conviction.
After petitioner was returned to prison in 1955, the Grand Jury of Summit County returned an indictment charging him with five counts of armed robbery committed in the first part of 1955, and this indictment was served on him in the penitentiary early in 1956. In May 1957, petitioner wrote to the prosecuting attorney of Summit County asking for an immediate trial on the 1955 indictments. In August 1957, petitioner was removed to Summit County on a governor's warrant for trial on the 1955 indictments. Petitioner pleaded not guilty at his arraignment, and counsel was appointed to represent him. On October 9, 1957, petitioner entered a plea of guilty to the indictments and was sentenced to ten to 25 years thereon. In July 1958, the Pardon and Parole Commission granted him a parole on his 1950 sentences so that he could begin serving his 1955 sentence. In 1960, the commission, on the basis of an Attorney General's opinion, notified petitioner that its action in 1958 was without authority.
Mr. Daniel Abram Everhart, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
The primary contention of petitioner is that the Pardon and Parole Commission had the power to grant him a parole in 1958, and that the effect of such parole was to terminate his 1946 and 1950 sentences, so that he is now serving only his 1957 sentences for armed robbery.
Assuming, but not deciding, that petitioner's contention is correct, by his own admission in relation to this issue he is now properly incarcerated under his 1957 sentence and, therefore, is not entitled to release by habeas corpus.
Next, petitioner urges that he was deprived of his constitutional rights because he was not furnished counsel prior to arraignment on any of his four indictments. He admits that counsel was appointed in each case after arraignment. In support of this argument, petitioner urges that certain rights are lost if not urged at arraignment, and that the very order in which the statutes appear in the Code requires that counsel be appointed prior to arraignment. This question was considered extensively in Dean v. Maxwell, Warden, 174 Ohio St. 193, in which case we held that failure to appoint counsel prior to arraignment deprived an accused of none of his constitutional rights.
Finally, petitioner attacks his 1957 convictions for armed robbery, on the basis that he was denied a speedy trial thereon. The indictments for these crimes were returned in September 1955. Although he contends that other people were trying to procure a trial for him on these indictments after they were returned, he himself made no overt move until May 1957, at which time he wrote the prosecuting attorney, demanding trial. He was removed from the penitentiary in August for this purpose and entered a plea of guilty in October. Such facts do not indicate a denial of a speedy trial. Although one imprisoned in the penitentiary is entitled to a speedy trial on other indictments pending against him, such right must be demanded, it is not self-executing. State v. Cunningham, 171 Ohio St. 54; Crider v. Maxwell, Warden, 174 Ohio St. 190; and Partsch v. Haskins, Supt., 175 Ohio St. 139. Petitioner was afforded a trial when he demanded it. Furthermore, he waived any right to rely on it as a basis for his present release, by entering a plea of guilty and not raising the question at his trial. Partsch v. Haskins, Supt., supra.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.
MATTHIAS, J., not participating.