Midling v. Perrini

• Decision Date: 24 April 1968
• Docket Number: No. 41411,41411
• Citation: 236 N.E.2d 557,14 Ohio St.2d 106
• Parties: , 43 O.O.2d 171 MIDLING v. PERRINI, Supt., Marion Correctional Institution.
• Court: Ohio Supreme Court

Page 106

14 Ohio St.2d 106

236 N.E.2d 557, 43 O.O.2d 171

MIDLING v. PERRINI, Supt., Marion Correctional Institution.

No. 41411.

Supreme Court of Ohio.

April 24, 1968.

Syllabus by the Court

Where a defendant, while represented by counsel, pleads guilty to an offense and is sentenced, the judgment of conviction cannot be collaterally attacked on the ground that the indictment fails to state one or more essential elements of the offense. Evans v. Sacks, 173 Ohio St. 116, 180 N.E.2d 151; Mills v. Maxwell, 174 Ohio St. 523, 190 N.E.2d 264; Perry v. Maxwell, 175 Ohio St. 369, 195 N.E.2d 103, approved and followed. Paragraph six of the syllabus of State v. Cimpritz, 158 Ohio St. 490, 110 N.E.2d 416, explained and distinguished.

Kenneth R. Midling, in pro. per.

William B. Saxbe, Atty. Gen., and William C. Baird, Columbus, for respondent.

TAFT, Chief Justice.

This is an action in habeas corpus originating in this court.

In January 1966, while represented by counsel, petitioner pleaded guilty to an indictment charging him, pursuant to Section 2907.12, Revised Code, with maliciously and forcibly, with the aid of certain instruments forcing an entrance into a 'depository box' containing money in excess of $60.

The indictment states that the money in the 'depository box' was 'the property of the Ohio Bell Telephone Company,' and we will therefore treat the indictment as though it specifically stated that the 'depository box' was a pay telephone, as petitioner contends.

After petitioner's sentence for the crime specified in Section 2907.12, Revised Code, this court held in State v. Aspell (1967), 10 Ohio St.2d 1, 225 N.E.2d 226, that 'the term 'depository box" in that statute did 'not include a cigarette vending machine and an open receptacle therein containing coins which have been deposited there for the purchase of packages of cigarettes.'

In reliance upon that case, petitioner contends that his judgments of conviction are based on indictments which do not charge an offense.

In reliance upon paragraph six of the syllabus in State v. Cimpritz (1953), 158 Ohio St. 490, 110 N.E.2d 416, petitioner then contends that a judgment of conviction based upon such an indictment is void and may be attacked in a collateral proceeding. There are words in that paragraph of the syllabus which so state. However, the Cimpritz case involved a direct appeal from the judgment of conviction and not a collateral attack on such a judgment. Hence, it would have been sufficient to use the word 'voidable' instead of 'void' in that paragraph of the syllabus. Also, no question with respect to a collateral attack was involved in the case, so that any statement with respect thereto may be disregarded. This was pointed out in the opinion in State v. Wozniak (1961), 172 Ohio St. 517, 522, 178 N.E.2d 800.

This court has previously held that, where a defendant while represented by counsel pleads guilty to an offense and is sentenced, the judgment of conviction cannot be collaterally attacked on the ground that the indictment fails to state one or more essential elements of the offense. Evans v. Sacks (1962), 173 Ohio St. 116, 180 N.E.2d 151; Mills v. Maxwell (1963), 174 Ohio St. 523, 190 N.E.2d 264; Perry v. Maxwell (1963), 175 Ohio St. 369, 195 N.E.2d 103. Such an indictment can only be attacked directly on appeal. See State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104.

Although the time for an appeal 'as a matter of right' has expired, Section 2953.05, Revised Code, does provide for an appeal 'by leave.' See State v. Catlino (1967), 10 Ohio St.2d 183, 226 N.E.2d 109. We express no opinion as to whether the Court of Appeals should, in its discretion, grant...