City of Dayton v. Hill

• Decision Date: 25 February 1970
• Docket Number: Nos. 69-121,69-122,s. 69-121
• Citation: 256 N.E.2d 194,21 Ohio St.2d 125,50 O.O.2d 328
• Parties: , 50 O.O.2d 328 CITY OF DAYTON, Appellant, v. HILL, Appellee. CITY OF DAYTON, Appellant, v. SMITH, Appellee.
• Court: Ohio Supreme Court

Page 125

21 Ohio St.2d 125

256 N.E.2d 194, 50 O.O.2d 328

CITY OF DAYTON, Appellant, v. HILL, Appellee.

CITY OF DAYTON, Appellant, v. SMITH, Appellee.

Nos. 69-121, 69-122.

Supreme Court of Ohio.

Feb. 25, 1970.

Syllabus by the Court

Sections 2953.21 to 2953.24, inclusive, Revised Code, do not apply to persons convicted of violating a municipal ordinance.

On January 2, 1968, appellees were tried in the Municipal Court of Dayton, Ohio, and found guilty of violation a Dayton municipal ordinance. Subsequent thereto, and without prosecuting an appeal, appellees filed a petition in that court to vacate the sentence imposed upon them alleging, with supporting affidavits, that they had been forced to stand trial without the presence or assistance of their retained counsel. Appellant's demurrers to the petitions were sustained on the grounds that the so-called Post Conviction Remedy Act, under which appellees' petitions were filed, was not applicable to sentences imposed for the violation of city ordinances. Appellees appealed to the Court of Appeals, where the judgments of the Municipal Court were reversed and the causes remanded for further proceedings. The causes are now before us pursuant to our allowance of appellant's motions to certify the records.

Lee C. Falke, Pros. Atty., and John E. Breidenbach, Columbus, for appellant.

Goldman, Bogin & Fox, and W. I. Shaman, Dayton, for appellees.

HERBERT, Justice.

At the outset, it should be noted that the allegation of denial of counsel (and the admission thereof for purposes of the demurrer) removes from these cases the question of res judicata, decided in State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. It is also clear that the offense with which appellees were charged was such that they had a right to 'appear and defend in person and with counsel.' Section 10, Article I of the Constitution of Ohio. Therefore, the sole question before us is whether Sections 2953.21 to 2953.24, inclusive, Revised Code, referred to as the Post Conviction Remedy Act, provide a remedy for the procedurally admitted wrong of denial of counsel in a Municipal Court prosecution for violation of a city ordinance.

In 1949, the United States Supreme Court declared that the states must provide their prisoners with some 'clearly defined method by which they may raise claims of denial of federal rights.' Young v. Ragen (1949), 337 U.S. 235, 239, 69 S.Ct. 1073, 1974, 93 L.Ed. 1333. Following a report made in June 1953 by a Special Committee on Habeas Corpus to the Conference of Chief Justices, it was concluded that the National Conference of Commissioners on Uniform State Laws should draft a Uniform Post Conviction Procedure Act for consideration by state legislatures. This was done, and in 1955 the Conference adopted the present Uniform Act. That Act is specifically limited to persons 'convicted of a felony.' 9B Uniform Laws Annotated 541 et seq. With Illinois preceding the adoption of a Uniform Act (Ill.Rev. Statutes Chapter 38, Sections 122-1 to 122-7, inclusive), and North Carolina following Illinois (N.C. General Statutes, Sections 15-217 to 15-222, inclusive), the states began providing prisoners with methods to seek the relief mentioned in Young v. Ragen, supra. In April 1965, Nebraska adopted its postconviction law (Neb.Rev. Statutes, Chapter 29, Sections 29-3001 to 29-3004, inclusive), and Ohio followed in July of that year. A reading of the first section of these two enactments clearly shows that the Ohio section was modeled after that adopted in Nebraska. Even though neither of the two acts was directly limited to state convictions, both leave no doubt that the county prosecuting attorney's office is to participate in any hearing on such petitions.

In Case v. Nebraska (1965), 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422, the United States Supreme Court remanded a pending appeal and ordered reconsideration of the cause by the Nebraska Supreme Court in light of that state's newly enacted postconviction law. Justices Clark and Brennan wrote concurrences to the court's Per Curiam opinion, in which they discussed such state enactments. Despite the absence in the Nebraska Act of a clear limitation to state convictions, the justices employed the phrases 'state criminal administration,' 'state courts,' 'state prisoners.' 'state criminal business' and 'state prosecutions.' Since their observations were clearly gratuitous and designed to be informative in the subject area, and in view of the heretofore cited Uniform Act, we view the Justices' usage of such terms as highly persuasive that the entire field of postconviction procedure was mandated by the Supreme Court in Young v. Ragen, supra, and conceived by the Commissioners on Uniform State Laws in 1955, as being related only to state-prosecuted convictions. Further, since the Ohio and Nebraska Acts are almost identical in this respect, it is also logical to assume that the high cou...