Opinion
No. 75-100
Decided November 19, 1975.
Criminal procedure — Armed robbery — Accused's right to counsel — Pretrial period — No showing of prejudicial error — Evidence — Admissibility — No abuse of discretion, when — Sentence.
APPEAL from the Court of Appeals for Hamilton County.
In the evening of January 19, 1973, Bruce Withers, appellant herein, and Michael Floyd were arrested for the robbery, at knifepoint, of a Cincinnati taxicab driver, Ronald Kotoff. The robbery occurred in the parking lot of an apartment complex some 15-20 minutes prior to the arrest. At the time of the arrest, Kotoff positively identified the appellant as one of the robbers. The victim's watch taken in the robbery and a pocket knife were found in appellant's possession when he was arrested.
The record before this court reveals that, following the arrest, defendants were taken to the Hamilton County Municipal Court for a joint preliminary hearing. A single defense attorney, Jack Rubenstein, cross-examined the only witness, Kotoff, concerning the actions of both defendants. Toward the close of the hearing, the court was advised by attorney Rubenstein that he represented defendant Floyd alone, at which point the court said: "Well, the Court certainly was under the impression that you represented this man [appellant too]." The attorney then addressed the court with respect to appellant's background as it affected the question of bail.
The proferred transcript of this hearing, as found in the record, appears to be incomplete and not certified.
On March 9, 1973, defendants were indicted for armed robbery, a violation of former R.C. 2901.13. Prior to trial, the Court of Common Pleas overruled appellant's "plea in abatement," which was based upon an alleged deprivation of his right to counsel at the preliminary hearing, and found that there had been no showing of any error prejudicial to appellant.
At the jury trial, the knife found on appellant was admitted in evidence over objection. In addition, the court, following the close of the state's case, refused to admit the entire transcript of the preliminary hearing in evidence.
On July 3, 1973, defendants were found guilty as charged, and sentenced to the reformatory. Defendants were not considered for probation since the statute (R.C. 2901.13), in the words of the court, "makes this offense [armed robbery], on a finding of guilty, a non-probational offense * * *."
Upon appeal, the Court of Appeals affirmed appellant's judgment of conviction.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. William E. Breyer, for appellee.
Mr. Martin E. McMullen and Mr. H. Fred Hoefle, for appellant.
Appellant contends, in his first of four propositions of law, that "he was effectively denied the assistance of counsel" at the preliminary hearing, in violation of the Sixth Amendment to the Constitution of the United States
Based on the record before us, we agree with the courts below that nothing occurred at appellant's preliminary hearing which was prejudicial to his rights. See State v. Childs (1968), 14 Ohio St.2d 56; Chapman v. California (1967), 386 U.S. 18; Coleman v. Alabama (1970), 399 U.S. 1.
In his second and third propositions of law, appellant argues that the trial court committed prejudicial error by admitting in evidence the pocket knife found in appellant's possession, and by refusing to admit in evidence the transcript of the preliminary hearing.
In State v. Hymore (1967), 9 Ohio St.2d 122, 128, it is stated that, "the trial court has broad discretion in the admission and exclusion of evidence and unless it clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere."
After a review of the record, we find no abuse of discretion on the part of the trial court herein with respect to the admissibility of the evidence.
Lastly, appellant contends that his mandatory sentence to the reformatory by the trial court amounted to a denial of equal protection of the laws.
The record clearly shows that appellant was arrested January 19, 1973, indicted on March 9th, and sentenced July 3, 1973. During that entire period, armed robbery was a non-probationary offense. Hence, appellant was treated no differently than other persons convicted of armed robbery at that time, with respect to eligibility for probation. Appellant's claim is, therefore, without merit.
From September 5, 1972, until its repeal, effective January 1, 1974, R.C. 2901.13 provided:
"No person, while armed with a pistol, knife, or other dangerous weapon, by force or violation, or by putting in fear, shall steal from the person of another anything of value.
"Whoever violates this section is guilty of armed robbery * * * and he shall not have the benefit of probation."
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.