Vitoratos v. Maxwell
Citation | 351 F.2d 217 |
Decision Date | 22 September 1965 |
Docket Number | No. 16054.,16054. |
Parties | William VITORATOS, Petitioner-Appellant, v. E. L. MAXWELL, Warden, Ohio Penitentiary, Respondent-Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
William Vitoratos, in pro per.
William B. Saxbe, Atty. Gen., John Cianflona, Asst. Atty. Gen., Columbus, Ohio, for appellee on brief.
Before WEICK, Chief Judge, MILLER, Circuit Judge, and MATHES, Senior District Judge.*
Appellant, who is now a prisoner of the State of Ohio serving a sentence of "not less than one or more than twenty years", appeals from a judgment denying his petition for The Writ of Habeas Corpus.
The material facts disclosed by the record are the following. On January 12, 1959, appellant was indicted in the Court of Common Pleas of Summit County, Ohio, for the crime of sodomy as defined in § 2905.44 of the Revised Code of Ohio; he was arrested on March 26, 1959, and arraigned on March 30, 1959. His first claim is that he was denied "due process of law" under the Fourteenth Amendment by being deprived of an attorney at his arraignment.
The transcript of the arraignment proceedings in this connection discloses the following:
It appears most likely that appellant had not in fact retained an attorney as he represented to the State court at the time of arraignment; for only three days later the Presiding Judge, before whom appellant had been arraigned, entered the following order:
"THIS DAY, to-wit: The 2nd day of April A.D., 1959, it appearing that the said defendant, BILL VITORATOS aka BILL VICTOR, is in indigent circumstances and unable to employ counsel, the court hereby appoints Attorney Bill Watson as counsel to defend him in this case."
The case was set for trial on April 17, 1959, but on April 14th attorney Watson on behalf of appellant moved for a postponement of the trial, which motion was denied. Attorney Watson then, for reason not revealed by the record, moved for leave to withdraw as appellant's attorney. The Court granted the motion by the following order:
"On this day, April 16, 1959, the Court hereby permits William Watson, Attorney of record, to withdraw from said case and appoints Robert Blakemore to represent the Defendant in said matter."
The trial date was postponed until April 21, 1959, at which time the record shows the following occurred, inter alia:
Thereafter the case proceeded to jury trial with attorney Blakemore representing appellant. The trial was concluded two days later, on April 23rd, when the jury returned a verdict of guilty.
The record further shows that the State court "thereupon ordered the defendant to Lima State Hospital at Lima, Ohio, for mental examination not to exceed sixty (60) days". Such examination was required by law, once appellant had been convicted of violation of § 2905.44 of the Ohio Revised Code. § 2947.25, Ohio Revised Code.
On April 27, 1959, the trial court entered an order permitting attorney Blakemore to withdraw from the case. The record next shows that on June 15, 1959, the appellant "being in Court and accompanied by counsel", the Court held a "hearing on the report from Lima State Hospital" and found that appellant was "not mentally ill, mentally deficient, nor a psychopathic offender". The Court next "considered a motion for a new trial and said motion was duly overruled". Then "the Court * * * inquired of said Defendant if he had anything to say why sentence should not be pronounced against him and Defendant showing no good and sufficient reason", the Court sentenced appellant to an indeterminate term of "not less than the minimum of ONE (1) year and not more than the maximum of TWENTY (20) years, as provided by Section 2905.44 of the Revised Code of Ohio, for punishment of the crime of sodomy. * * *" Since probation was not available to appellant § 2951.04, Ohio Revised Code, that was the only sentence which could have been imposed under Ohio law § 5145.01, Ohio Revised Code.
Appellant appealed the judgment of conviction and sentence to the Court of Appeals of Summit County, Ohio, where the judgment was affirmed on January 14, 1960. Case No. 4934, unreported. On October 13, 1960, the Ohio Supreme Court denied appellant's motion for leave to appeal to that Court Case No. 36,565, unreported; and the United States Supreme Court thereafter denied his petition for a writ of certiorari Vitoratos, alias Victor v. State of Ohio, 366 U.S. 920, 81 S.Ct. 1097, 6 L.Ed.2d 242 (1961).
More than two years later, on August 12, 1963, appellant's petition for The Writ of Habeas Corpus was filed in the District Court. Henry Clay Scott, Esq., was appointed as appellant's attorney and has represented him, proceeding in forma pauperis, in the District Court and upon the argument of this appeal, although it appears that the "Brief of Appellant", filed with the Clerk of this Court on August 6, 1964, was "in Pro Per", as was the "Supplemental Brief of Appellant", filed October 23, 1964, and the "Reply Brief of Appellant", filed December 8, 1964.
Appellant's primary contentions as to claimed denial by the Ohio courts of his Fourteenth-Amendment rights are found in the various briefs filed by him "Pro Per", and by his attorney in his behalf, and in the transcript of the habeas corpus hearing in the District Court.
As stated above, the first claimed denial of "due process of law" is alleged to have occurred at his arraignment in the Court of Common Pleas, where a plea of not guilty was ordered entered on behalf of appellant while he stood at the bar without counsel. Appellant contends that, because he was not represented by an attorney at his arraignment, he lost many valuable rights required to be asserted prior to entry of plea. See §§ 2941.59, 2943.03, Ohio Revised Code. But there is no allegation that he has ever attempted to exercise any of these rights, nor is there any allegation in his petition or elsewhere that any of such rights would have been appropriate or available in his case had they not been...
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Bonnell v. Mitchel, No. 00CV250.
...Bonnell, 61 Ohio St.3d 179, 573 N.E.2d 1082, 1085-1086 (1991). The Court agrees. As this circuit reiterated in Vitoratos v. Maxwell, 7 Ohio Misc. 106, 351 F.2d 217 (6th Cir.1965): arraignment in Ohio is not always a `critical stage' of the trial process. (Dean v. Maxwell, ... 174 Ohio St. 1......
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Van v. Jones
...deliberately to elicit testimonial evidence from him. Our court first took up this line of doctrine in Vitoratos v. Maxwell, 7 Ohio Misc. 106, 351 F.2d 217 (6th Cir.1965), a non-capital prosecution for sodomy in which we adopted the Ohio Supreme Court's view that "arraignment in Ohio is not......
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Madison v. Tahash
...Counsel for the Suspect: Massiah v. United States and Escobedo v. State of Illinois, 49 Minn. L.Rev. 47 (1964). 9 Vitoratos v. Maxwell, 351 F.2d 217 (6th Cir. 1965); United States ex rel. Spinney v. Fay, 221 F.Supp. 419 (S.D.N.Y.), aff'd, 325 F.2d 436 (2d Cir. 1963), cert. denied, 377 U.S. ......
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Gilmore v. Armontrout
...provided that any uncounselled plea or waiver of rights was subject to withdrawal after the appointment of counsel. Vitoratos v. Maxwell, 351 F.2d 217, 221 (6th Cir.1965), cert. denied, 383 U.S. 105, 86 S.Ct. 718, 15 L.Ed.2d 618 Applying these principles, this court held in McClain v. Swens......