Dean v. Maxwell

• Decision Date: 06 February 1963
• Docket Number: No. 37836,37836
• Citation: 5 A.L.R.3d 1263,187 N.E.2d 884,174 Ohio St. 193
• Parties: , 5 A.L.R.3d 1263, 22 O.O.2d 144 DEAN v. MAXWELL, Warden.
• Court: Ohio Supreme Court

Page 193

174 Ohio St. 193

187 N.E.2d 884, 5 A.L.R.3d 1263, 22 O.O.2d 144

DEAN v. MAXWELL, Warden.

No. 37836.

Supreme Court of Ohio.

Feb. 6, 1963.

Homer J. Dean, in pro. per.

Mark McElroy, Atty. Gen., and John J. Connors, Jr., Columbus, for respondent.

PER CURIAM.

Petitioner's primary contention is that the failure of the trial court to appoint counsel to act on his behalf prior to arraignment deprived him of the right to enter certain pleas and defenses. He claims that the right to urge such pleas and defenses was lost to him when he entered the plea of not guilty, and that, subsequently, the entering of such pleas was not a matter of right but a matter of the unreviewable discretion of the trial court, and thus petitioner was denied the right to a fair trial.

Petitioner urges as authority for his position the case of Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. In that case the Supreme Court of the United States held that the failure to appoint counsel prior to arraignment in a capital case in Alabama was, under the Alabama law, such a deprivation of the constitutional rights of the accused as to entitle Hamilton to be released from his conviction. The court in the course of its opinion said:

'Arraignment under Alabama law is a critical stage in a criminal proceeding. It is then that the defense of insanity must be pleaded (15 Ala.Code § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is 'not revisable' on appeal. Rohn v. State, 186 Ala. 5, 8, 65 So. 42, 43. Cf. Garrett v. State, 248 Ala. 612, 614-615, 29 So.2d 8, 9. Pleas in abatement must also be made at the time of arraignment. 15 Ala.Code s279 [1940]. It is then that motions to quash based on systematic exclusion of one race from grand juries (Reeves v. State, 264 Ala. 476, 88 So.2d 561), or on the ground that the grand jury was otherwise improperly drawn (Whitehead v. State, 206 Ala. 288, 90 So. 351), must be made.

'Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes.'

An examination of the Hamilton case shows that the court based its decision on the fact that certain pleas and defenses were lost by pleading at the arraignment, and that, even as to the change to a plea of insanity after the arraignment, such change was within the unreviewable discretion of the trial court.

That, however, is not the situation in Ohio. So far as a change of plea is concerned, Section 2943.03, Revised Code, provides in part as follows:

'The court may, for good cause shown, allow a change of plea at any time before the commencement of the trial.'

The obvious difference in the Ohio statute is that pleas are permitted to be changed for good cause shown, and clearly, under Ohio law, the refusal of a trial judge to allow a change of plea is reviewable on the question of abuse of discretion. 15 Ohio Jurisprudence (2d), 414, Criminal Law, Section 215. Unquestionably, where an indigent accused has pleaded to an indictment without benefit of counsel, the appointment of counsel to act on his behalf would constitute such good cause that a subsequent refusal by the trial court to permit a change of plea would constitute an abuse of discretion.

The contrast between the Ohio and Alabama law is even more apparent when considered in relation to those sections of the Revised Code dealing with exceptions and demurrers to indictments.

Section 2941.59, Revised Code, provides:

'The accused waives all defects which may be excepted to by a motion to quash or a plea in abatement, by demurring to an indictment, or by pleading in bar or the general issue.'

This section standing alone would seem to substantiate the petitioner's contention that by his plea he waived certain rights. However, this section must be read in conjunction with Sections 2941.52 and 2941.61, Revised Code.

Section 2941.52, Revised Code, provides:

'After the accused is brought into court and counsel has been assigned to him as provided by section 2941.50 of the Revised Code, the court shall allow the accused a reasonable time to examine the indictment and prepare exceptions thereto.'

Section 2941.61, Revised Code, provides:

'After a demurrer to an indictment is overruled, the accused may plead under section 2943.03 of the Revised Code.'

When these sections are read together, it is clear that, where an indigent accused pleads to an indictment without the benefit of counsel, the subsequent appointment of counsel to act on his behalf places the accused, for practical legal purposes, in the same position he was in prior to his arraignment. As has been shown, neither Section 2941.52 nor Section 2941.61, Revised Code, places any discretion in the trial court in relation to the filing of exceptions or the entering of pleas to the indictment in those instances where counsel is appointed to act for an indigent accused. As a matter of fact, in the instant situation a demurrer was filed by counsel after they were appointed and after petitioner had entered his original plea.

Thus, under the law of Ohio, the failure to appoint counsel for this defendant prior to arraignment does not appear to have so deprived him of defenses or pleas as to deny him his constitutional right to a fair trial. See White v. State, 227 Md....