Norton v. Green, 37326

• Decision Date: 11 July 1962
• Docket Number: No. 37326,37326
• Citation: 173 Ohio St. 531,184 N.E.2d 401,20 O.O.2d 148
• Parties: , 20 O.O.2d 148 NORTON v. GREEN, Supt., Marion Correctional Institution.
• Court: Ohio Supreme Court

Page 531

173 Ohio St. 531

184 N.E.2d 401, 20 O.O.2d 148

NORTON v. GREEN, Supt., Marion Correctional Institution.

No. 37326.

Supreme Court of Ohio.

July 11, 1962.

James C. Norton, in pro. per.

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

PER CURIAM.

Petitioner's first contention is that he was denied due process because he was represented by incompetent counsel. He appears to base this argument primarily on the fact that his counsel was subsequently convicted of a felony. This, of course, does not conclusively indicate incompetency. Counsel was of petitioner's own choosing and, according to the record, appeared with him at each stage of the proceeding. Questions relating to the competency of counsel must be raised by appeal and not in a habeas corpus proceeding. McConnaughy v. Alvis, Warden, 165 Ohio St. 102, 133 N.E.2d 133, and Lewis v. Tinsely, Warden, 138 Colo. 117, 330 P.2d 532.

The petitioner raises two questions as to his preliminary hearing. First, he contends he did not have one. According to the Municipal Court entry attached to petitioner's own brief, this claim is without foundation since such entry recites that an examination was had before the petitioner was bound over to the grand jury. Secondly, the petitioner alleges an undue delay between his arrest and preliminary hearing which was held some seven days after the prosecuting witness signed the complaint. Petitioner was represented by counsel during this period, and, if his rights were being infringed, such issue could have been taken care of by his counsel. Petitioner was arrested on a Friday on charges of intoxication and cutting with intent to wound, the complaint was filed against him on the following Monday by the prosecuting witness, and petitioner had his preliminary hearing on the following Monday. Such a period of time does not appear to constitute undue delay. Furthermore, it has been held that even failure to have a preliminary hearing is not a ground for relief by habeas corpus. Clarke v. Huff, 73 App.D.C. 351, 119 F.2d 204. Since failure to hold a preliminary examination is not a ground for discharge, a delay of a few days in holding such examination should have no effect on the rights of the accused.

Petitioner contends that his incarceration is illegal for the reason that he filed no written waiver of a jury trial. A failure to file such waiver does not infringe the constitutional rights of one who pleads guilty to an indictment. State ex rel. Scott v. Alvis, Warden, 156 Ohio St. 387, 102 N.E.2d 845, and State v. De Lucia, 63 N.J.Super. 90, 164 A.2d 81. This principle is especially applicable in cases, such as this, where petitioner, being represented by counsel, pleads not guilty at his arraignment and subsequently, after time for reflection, withdraws such plea and enters a plea of guilty.

Petitioner alleges that he did not want to plead guilty but wanted a jury trial. He appeared in open court, accompanied by his counsel, when he withdrew his original plea. According to the court record which bears a presumption of validity, he was asked by the trial judge whether he had anything to say, and he stood mute. He cannot now raise this question in a habeas corpus proceeding. See Christian v. Dowd, Warden, 219 Ind. 265, 37 N.E.2d 933. The fact that, as alleged by petitioner, his attorney made certain representations to him as to what he could do for him on a plea of guilty, thereby allegedly inducing such plea, is not a ground for relief by habeas corpus. Davis v. Rhay, Supt., 9 Cir., 256 F.2d 617; Davis v. Rhay, Supt., D.C., 156 F.Supp. 114.

Petitioner urges violation of his rights as to a fair trial, including the right to confront the witnesses against him. By pleading guilty he waived his right to a trial and all the incidents thereto, admitted the material facts in the indictment, dispensing with the necessity of proving them, and authorized the court by such plea to proceed to judgment. Carper v. State, 27 Ohio St. 572, and Craig v. State, 49 Ohio St. 415, 30 N.E. 1120, 16 L.R.A. 358.

Petitioner contends next that there was error in the order binding him over to the grand jury, in relation to the fact that the court instructed the Clerk of the Court of Common Pleas to set bail. He urges further that he was held without bail after his arrest because of a 'hold for parole officer' which was erroneous. There is nothing in the record to show that petitioner attempted to be released on bail. Irrespective of this, however, although habeas corpus would have been the proper action to compel his release on bail at the time of his arrest and before conviction, any error therein did not, after petitioner had been indicted and had pleaded guilty, constitute any jurisdictional irregularity or a denial of a fundamental right which would have resulted in a loss of jurisdiction by the trial court.

The petitioner urges further that his indictment was void because it failed to include therein the number of the Code section under which he was indicted. Petitioner's indictment read as follows:

'The jurors of the Grand Jury of the county of Stark and state of Ohio, then and there duly impaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of...