Maloney v. Maxwell
| Decision Date | 12 December 1962 |
| Docket Number | No. 37537,37537 |
| Citation | 174 Ohio St. 84,186 N.E.2d 728 |
| Parties | , 21 O.O.2d 341 MALONEY v. MAXWELL, Warden. |
| Court | Ohio Supreme Court |
Rolland Maloney in pro. per.
Mark McElroy, Atty. Gen., and John J. Connors, Jr., Toledo, for respondent.
The petitioner bases his right to relief on the ground that Section 2961.12, Revised Code, is unconstitutional. He urges this contention on the grounds that such act is retroactive, and that it denied him the equal protection of the laws.
However, even if such question was cognizable in a habeas corpus proceeding, petitioner's argument in this respect is untenable. It is now a well established principle that habitual criminal acts are valid and do not conflict with the constitutional provisions relating to ex post facto or retroactive laws, due process, equal protection or double jeopardy. State ex rel. Drexel v. Alvis, Warden, 153 Ohio St. 244, 91 N.E.2d 22; Gryger v. Burke, Warden, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; annotation, 139 A.L.R., 673; and footnote, 45 L.Ed. 542.
Petitioner also raises the question as to equal protection on the basis that many persons who are subject to the Habitual Criminal Act are not prosecuted thereunder. So long as a statute is equally applicable to members of a given class, the fact that there is a lack of diligence in enforcement of the statute so that many subject thereto are not prosecuted does not constitute a denial of equal protection to one who is prosecuted under such statute. In other words, equal protection does not entail uniform enforcement. Society of Good Neighbors v. Mayor, 324 Mich. 22, 36 N.W.2d 308; State v. Hicks, 213 Or. 619, 325 P.2d 794; and 16 A C.J.S. Constitutional Law, § 563, p. 522.
To follow petitioner's contention would lead to an unconscionable result. It would relieve from liability the guilty on the basis that others equally guilty had not been prosecuted. Uniform operation of criminal justice does not require the release of the guilty for failure to prosecute others equally guilty.
Petitioner contends further that Section 2961.12, Revised Code, is unconstitutional on the basis that it is indefinite and fails to state the crime completely. He bases this on the fact that such section instead of listing the various crimes subject to the Habitual Criminal Act refers to Section 2961.11, Revised Code, for enumeration of such crimes. There is nothing indefinite in this statute and under the doctrine of reference it is a valid enactment. 50 Ohio Jurisprudence (2d), 40, Statutes, Section 32. Reference to another section does not constitute indefiniteness in a statute. The crime is fully described therein, and the incorporation of that statute in the indictment was all that was required.
The petitioner in his brief raises the question of former jeopardy. The plea of former jeopardy constitutes a defense which must be raised in the trial court, and nay claimed error in relation thereto must be pursued on appeal. It is not a matter for habeas corpus inasmuch as it concerns the judgment and sentence thereunder and not the jurisdiction of the court. Barker v. Sacks, Warden, 173 Ohio St. 413, 183 N.E.2d 385; Weaver v. Sacks, Warden, 173 Ohio St. 415, 183 N.E.2d 373; and Foran v. Maxwell, Warden, 173 Ohio St. 561, 184 N.E.2d 398.
Petitioner claims there is no such crime as a habitual criminal, that these statutes are merely an enhancement of the punishment, and that, therefore, he could not be sentenced for something which was not a crime. The effect of the Habitual Criminal Act is to attach an additional penalty for a fourth offense, and the statutory procedure of indictment and jury trial is for the protection of the accused. Blackburn v. State, 50 Ohio St. 428, 36 N.E. 18. This procedure determines the status for the purpose of imposing this enhanced punishment. State v. Hicks, supra.
The petitioner makes a general attack on the validity of one of his former convictions upon which the habitual criminal indictment was returned.
Even if error had intervened in such prior conviction such matter cannot be brought up in a habeas corpus proceeding attacking petitioner's habitual criminal sentence. If such attack could be made at all in a collateral proceeding, the proper place to raise such questions was at the hearing on the habitual criminal indictment.
An attack on the validity of a sentence under the Habitual Criminal Act must be made by appeal of the original action; review cannot be had by habeas corpus. Ex parte Puckett, 164 Tex.Cr.R. 587, 301 S.W.2d 649; and annotation, 116 A.L.R. 209. 240.
Apparently, two habitual criminal indictments were returned against petitioner. Prior to trial, the first indictment at the request of the prosecutor was...
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