Opinion
No. 32199
Decided November 29, 1950.
Habeas corpus — Not available where adequate remedy by appeal — Conviction and sentence on pleas of guilty — Accussed not represented by counsel — Presumption that right to have counsel appointed waived.
APPEAL from the Court of Appeals for Franklin county.
This proceeding in habeas corpus was instituted in the Court of Appeals by petitioner, Levenson, seeking a release from imprisonment in the Ohio State Penitentiary.
Petitioner was convicted of armed robbery, sentenced to an indeterminate term and later paroled. Thereafter he was arrested and charged with parole violation and armed robbery. Upon a plea of guilty to the offense of armed robbery, he was sentenced to an indeterminate term and returned to custody on the charge of parole violation.
Petitioner was not represented by counsel at the time of either conviction and did not, at any time, expressly waive his right to representation by counsel.
The Court of Appeals dismissed the petition and remanded petitioner to custody.
It is contended here that petitioner was denied due process in the failure to assign counsel to him or advise him of his right to the appointment of counsel.
Mr. Abraham Gertner and Mr. R. Brooke Alloway, for appellant, petitioner. Mr. Herbert S. Duffy, attorney general, and Mr. Alan E. Schwarzwalder, for appellee, respondent.
The judgment of the Court of Appeals is affirmed on authority of In re Burson, 152 Ohio St. 375, 89 N.E.2d 651.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and FAUGHT, JJ., concur.
The dissenting opinion of Judge Stewart in In re Burson, 152 Ohio St. 375, 89 N.E.2d 651, cited in the per curiam opinion in the instant case, points out that it is "illogical and incorrect to say that a remedy is adequate where it is not practically available" and points out that in a case such as this "there could be no record upon which an appeal could be based." (See Section 13445-1, General Code, requiring the court to fix the time within which a bill of exceptions or objections shall be filed which, "in no case, shall be more than 30 days from the overruling of the motion for a new trial," and Section 13449-2, General Code, relative to the time within which a motion for new trial may be filed, generally "within three days after the verdict was rendered, unless unavoidably prevented.")
If the rights which petitioner now asserts as grounds for collateral attack on his convictions had been promptly asserted, even though the time had elapsed within which an effective appeal could have been made, relief might well be granted petitioner in view of the facts found by the Court of Appeals.
However, in one instance a period of over 19 years and in the other a period of over 15 years have elapsed since those convictions.
If petitioner is released in these proceedings, such release will be on grounds having no relation to the question as to whether he was guilty or not guilty of the two crimes of which he was convicted. That being so, the interests of the public would clearly require retrials to determine whether he was or was not guilty of either or both of the two crimes for which he was indicted.
The lapse of time since those convictions 15 and 19 years ago has been such as to make it unlikely that the witnesses, who could have testified for the state, can now be located or will, if located, remember with any degree of accuracy the facts about which they would be required to testify. Under such circumstances, and in the absence of special or unusual facts accounting for or excusing such lapse of time, the interests of justice require a holding that petitioner's failure to take prompter action bars his assertion of the alleged rights, which he once may have have had, to collaterally attack these convictions. See In re Tremper, 126 N.J. Eq. 276, 8 A.2d 279 (affirmed on other grounds, 129 N.J. Eq. 274, 19 A.2d 342); Commonwealth, ex rel. Quinn, v. Smith, Warden, 144 Pa. Sup., 160, 19 A.2d 504; Ex parte Snow, 84 Okla. Cr. 423, 183 P.2d 588; Ex parte Matthews, 85 Okla. Cr. 173, 186 P.2d 840 (certiorari denied, 333 U.S. 858); Ex parte Motley, 86 Okla. Cr. 401, 193 P.2d 613; Ex parte Ray, 87 Okla. Cr. 436, 198 P.2d 756; Ex parte Workman (Okla.), 207 P.2d 361; Ex parte Cole (Okla.), 208 P.2d 193; Ex parte Hall (Okla.), 215 P.2d 587; and 39 Corpus Juris Secundum, 620.
STEWART, J., concurs in the foregoing concurring opinion.