Opinion
No. 39100
Decided December 23, 1964.
Habeas corpus — Right to counsel — Court record discloses counsel appointed — Conflict with testimony of petitioner — Record controls over memory of petitioner.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In 1944, petitioner, Dennie Ray Murphy, was indicted for and pleaded guilty of armed robbery and automobile theft in Hamilton County. He was sentenced to the Ohio Penitentiary for terms of one to 20 and 10 to 25 years, the sentences to run concurrently. Petitioner was paroled in 1951, and during the period between 1951 and 1957, while he was at large, he was on and off parole and in and out of various jails and federal penitentiaries. Petitioner was returned to the Ohio Penitentiary in 1957 as a parole violator. In April 1959, he was again paroled, and, in November 1959, he was declared a parole violator. In January 1960, petitioner pleaded guilty to armed robbery in Kentucky. After his release on parole in 1963 in Kentucky, he was returned to the Ohio Penitentiary.
Mr. Dennie Ray Murphy, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner bases his right to release on the alleged fact that he did not have the assistance of counsel at the time he entered his pleas of guilty in 1944.
According to petitioner's testimony, he was an illiterate youth of 19 when he entered his plea of guilty. He testified that his mother had retained counsel to represent him, but that such counsel withdrew after petitioner jumped his bond. Petitioner stated that he thereafter entered his plea of guilty without the assistance of counsel.
In rebuttal of petitioner's contention, respondent introduced into evidence a copy of the trial judge's docket. This docket indicates, as petitioner testified, that his counsel withdrew with the consent of the court. However, this record shows also that, on the same day petitioner's counsel was permitted to withdraw, the court appointed counsel to represent petitioner, and that nearly a month elapsed between the time of the appointment and the time petitioner pleaded guilty.
Petitioner contends that he not only never saw such counsel but that he had never even heard of him. In the face of the written record where it is shown that counsel was appointed to represent petitioner on the same day his retained counsel withdrew, such testimony is unbelievable. Where, as here, there is a conflict in the evidence as shown by a written judicial record and the memory of the petitioner in relation to facts which occurred some 20 years ago, the record of the trial court must be considered more reliable than the memory of the petitioner.
Inasmuch as it is a matter of record that counsel was appointed to represent petitioner, petitioner's argument is not well taken.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.