Opinion
No. 38557
Decided May 13, 1964.
Criminal procedure — "Speedy" trial of indeterminate meaning — Right to, lost or waived, how — No affirmative action by accused — Plea of guilty on arraignment — Accused incarcerated at time indictment returned — Defect in service — Waived if not raised prior to trial — Habeas corpus denied.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In May 1959, the petitioner, Bobby Lee Goman, was indicted by the Grand Jury of Fairfield County on two counts of burglary and two counts of forgery and uttering and publishing a forged instrument. Petitioner entered a plea of guilty to all counts and was sentenced to the Ohio Penitentiary, the sentences to run concurrently. In January 1960, while petitioner was in the penitentiary, the Grand Jury of Fairfield County returned indictments charging petitioner with automobile larceny and burglary. These indictments were not served on petitioner at that time; they were not served until 26 months later in March 1962, when petitioner was released on parole on his 1959 sentence. When arraigned in March on these indictments, petitioner pleaded guilty and was placed on probation. In August 1962, an information was returned charging him with embezzlement. On the same day the information was returned, petitioner signed a written waiver of counsel and a waiver of indictment consenting to trial by information. Once again, petitioner pleaded guilty. The court thereupon sentenced him to the penitentiary under the plea to the information, revoked his probation on the March plea to automobile larceny and burglary, and sentenced him on these charges, the sentences to run consecutively.
Mr. Bobby Lee Goman, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner in this action raises issues both as to his 1960 indictments and the 1962 information.
Petitioner urges that he was denied a speedy trial on his 1960 indictments, and that, therefore, he is entitled to release.
There is no question that there was a delay of some 26 months between the time these indictments were returned by the Grand Jury and the time they were served on petitioner. A detainer on these indictments was placed on him on April 3, 1961, but petitioner contends that he did not hear of them until July 1961.
As petitioner urges, even though he was imprisoned at the time these indictments were returned, he was still entitled to a speedy trial thereon. State, ex rel. Lotz, v. Hover, Pros. Atty., 174 Ohio St. 68. However, it has been held many times that this right is one which demands affirmative action by the accused. State v. Cunningham, 171 Ohio St. 54.
Thus, an accused either may lose such right by failing to demand it or may waive it by entering a plea of guilty to the charge. Crider v. Maxwell, Warden, 174 Ohio St. 190; and Partsch v. Haskins, Supt., 175 Ohio St. 139. Petitioner not only took no affirmative action to secure a speedy trial on these indictments but when arraigned on them pleaded guilty without raising the issue of speedy trial. He has by his conduct waived any right to release on this ground.
Irrespective of this, however, the delay itself in the present instance was not unreasonable. The term, "speedy trial," is one of indeterminate meaning, and whether an accused has been deprived of his right to a speedy trial must be determined from all the facts and circumstances in each particular case. Where, as here, the accused was in the penitentiary at the time the indictment was returned against him, a delay of 26 months until he was released did not violate his right to a speedy trial.
It should be noted that one of the primary purposes of the rule as applied to persons in the penitentiary is to prevent the state from returning indictments against one for crimes which occurred prior to his incarceration and for which he could have been tried at the same time he was tried for the crime for which he is presently incarcerated and not draw his prosecutions out over an indefinite period of time.
This, however, is not the fact in the present instance. Petitioner while he was imprisoned at the London Prison Farm walked away therefrom on November 27, 1959, and the crimes for which he was indicted in January 1960 occurred while he was at large on November 28, 1959. Thus, one of the basic reasons for the rule is not applicable in petitioner's case. He could not have been prosecuted for this crime at the same time he was tried on his 1959 indictment.
In relation to petitioner's 1962 conviction on the information charging him with embezzlement, petitioner contends that this conviction was void because the information was not served upon him 24 hours prior to his arraignment. It is not necessary to decide whether such service was required in relation to informations in this case. It is well settled that any claimed defect in service must be raised prior to trial, or it is waived. Click v. Eckle, Supt., 174 Ohio St. 88; and Boyer v. Maxwell, Warden, 175 Ohio St. 318.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.