Opinion
No. 38853
Decided October 7, 1964.
Habeas corpus — Petitioner in custody on four separate indictments — Plea of guilty entered to each count — Sentence imposed — Petitioner apprised of charges against him — Rights fully explained and counsel offered — No basis for release presented.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. On April 2, 1962, petitioner, James Troxell, was in custody on four separate indictments. The first of these indictments charged him with breaking and entering in the day season, the crime occurring on January 2, 1962. The second indictment charged him with escape on February 26, 1962. The third indictment contained five counts, one count of breaking and entering an inhabited dwelling in the night season with intent to steal property, two counts of armed robbery, one count of larceny and one count of stealing a motor vehicle, all occurring on February 26, 1962. The fourth indictment charged petitioner with attempt to escape and contained two counts of assault with a dangerous weapon on March 25, 1962.
Upon his arraignment on April 2, 1962, petitioner entered a plea of not guilty to all counts. Subsequently on the same day, petitioner requested to again appear before the court. When he reappeared before the court he withdrew his pleas of not guilty and entered a plea of guilty to each count. The court thereupon determined that, although petitioner was a male person between the ages of 16 and 21 years, he was not eligible to be sent to the Ohio State Reformatory because he had served a sentence for a prior felony conviction in a state prison facility. The court sentenced him to the Ohio Penitentiary on all counts in the separate indictments, the sentences to run consecutively.
Mr. James Troxell, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
The petitioner bases his right to release on the alleged failure of the trial court to inform him of the charges pending against him, failure to inform him of his right to counsel, and failure to appoint counsel to act in his behalf.
At his hearing, petitioner presented no evidence nor would he make any statement on his own behalf. His only statement was that the Ohio courts are unjust and unfair, and that he has only contempt for them.
On behalf of respondent, the Attorney General presented as a witness Judge Darrel R. Hottle of the Court of Common Pleas of Highland County, the trial judge who conducted the proceedings in relation to petitioner.
The judge testified that he had a clear and vivid recollection of the proceedings in relation to petitioner. He explained this recollection by stating that at the time he was sitting in Clermont County by assignment the case was impressed on his mind because of the publicity given to it by the very nature of the numerous serious offenses with which petitioner was charged, such being unusual in the smaller counties, and petitioner's attempt to escape prior to his arraignment. He testified also that in view of petitioner's record the number of guards in the courtroom was increased.
The judge testified that the proceedings were as follows: Petitioner was brought into the courtroom, and he had been previously served with the indictments, although the judge did not know by whom. He then very carefully apprised petitioner of the charges against him and asked him whether he had counsel, whether he wanted counsel, and whether he had funds to employ counsel. (The prosecuting attorney later testified that, at that time, he informed the judge that he knew the petitioner's parents and that they did not have the means to employ counsel.) The judge then informed the petitioner that he would appoint counsel to represent him at the state's expense.
Petitioner pleaded not guilty and indicated that he had been informed that counsel would be appointed to represent him. The judge then sent him from the courtroom.
The judge, being a stranger in the community, was in the process of procuring counsel for him when he was told that petitioner wished to reappear. Consent was given and petitioner was returned to the courtroom.
Petitioner then informed the court that he wished to withdraw his pleas of not guilty and enter a plea of guilty to each count.
The judge testified that, because of the nature and number of offenses with which petitioner was charged and prior to accepting his change of plea, he was more meticulous in the proceedings than he had ever been before, that he read each section of the Code under which the charges were filed to petitioner, explained each individual penalty and went to the extent of totalling the penalties under the various counts, and that he informed petitioner that because of his record it was doubtful whether the sentences on the counts would be made to run concurrently. He further informed petitioner that he as a judge could not advise him but it was possible an attorney could and maybe should help him. The judge told him this not once but several times.
He testified that petitioner said that he did not want counsel but wanted to plead guilty.
The state also called Ralph Hill, the prosecuting attorney of Clermont County since 1956, who had personally conducted the proceedings against petitioner. He also testified that he clearly remembered the proceedings in relation to petitioner. He based this recollection on the facts that in a small county there are very few serious crimes, that this one was the most serious he had seen, and that he also knew the parents of petitioner and had in fact represented them. He testified also that he was impressed with the procedure adopted by the judge because of his thoroughness in explaining the charges and his rights to petitioner, and that he had never before seen a judge go to the trouble of totalling the penalties which could be imposed.
The prosecuting attorney testified that the judge when petitioner was first brought before him asked petitioner whether he had received copies of the indictments and understood them. The judge very carefully explained the charges and petitioner's right to counsel and to a jury trial.
The prosecuting attorney testified that he was in the process of preparing the entries and was waiting for the judge to appoint counsel to represent petitioner so that he could set a trial date, when he was called back to the courtroom because petitioner wished to reappear.
The prosecuting attorney's testimony as to what occurred at petitioner's second appearance before the court that day, when petitioner withdrew his plea of not guilty and entered a plea of guilty to each count, fully substantiates that of the trial judge in every respect.
There is no doubt from the evidence adduced at the hearing that petitioner's rights were fully and comprehensively explained to him, that he was offered counsel, and that the charges and penalties were all carefully explained to him. Such evidence completely refutes the contention of petitioner. There is no basis for release in the instant case.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.