Partsch v. Haskins

• Decision Date: 03 July 1963
• Docket Number: No. 38061,38061
• Citation: 23 O.O. 2d 419,191 N.E.2d 922,175 Ohio St. 139
• Parties: , 23 O.O.2d 419 PARTSCH v. HASKINS, Supt., London Correctional Institution.
• Court: Ohio Supreme Court

Page 139

175 Ohio St. 139

191 N.E.2d 922, 23 O.O.2d 419

PARTSCH v. HASKINS, Supt., London Correctional Institution.

No. 38061.

Supreme Court of Ohio.

July 3, 1963.

Louis Partsch, in pro. per.

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

PER CURIAM.

The sole ground upon which petitioner bases his right to release is that he was denied a speedy trial on the 1951 indictments, thus his rights under the provisions of Section 10, Article I of the Ohio Constitution, were violated.

There is no question in the present case that a lapse of 10 years occurred between the time the indictments against petitioner were returned and his entry of a guilty plea thereto. The question is, did such delay violate petitioner's constitutional rights so as to entitle him to release?

It is well established under our law that the right to a speedy trial conferred by the Constitution is not self-executing. Affirmative action on the part of an accused in the nature of a demand to be tried is necessary for one to invoke the protection of the Constitution. State v. Cunningham, 171 Ohio St. 54, 167 N.E.2d 897, and Crider v. Maxwell, Warden, 174 Ohio St. 190, 187 N.E.2d 875. In other words, there can be no denial where there has been no demand. The purpose of Section 10, Article I, is to provide a trial for an accused without undue delay with its attendant anxieties and the possibility that the defense might be prejudiced by the lapse of time. However, it was not intended as a shield to the guility, the protection of which might be invoked by sitting silently back and allowing the prosecution to believe that the accused is acquiescing in the delay. It is a right which must be claimed or it will be held to have been waived.

Thus, in order for an accused to procure his release on the basis of a denial of his right to a speedy trial, he must show affirmative action on his part to secure a speedy trial.

An accused may waive his right to a speedy trial not only by inaction in failing to claim his right thereto but also by taking some affirmative step in the proceedings which would be inconsistent with the claim that he did not waive his right to a speedy trial. Thus, ordinarily it is held that where, as here, an accused enters a plea of guilty without raising the question as to a denial of a speedy trial he waives his right thereto. Annotation, 57 A.L.R.2d 304, 343.

This brings us to a consideration of the facts in the instant case. There is no dispute as to the fact that there was a delay of 10 years between the return of the indictment and the plea thereto. Petitioner claims he did demand a speedy trial and stated that his prison docket would affirm this fact. An examination of this docket merely shows letters from the sheriff of Medina County indicating that petitioner was still wanted under his indictments from that county.

However, even assuming petitioner had made a demand for a speedy trial, when he entered his plea of guilty in 1961, it amounted to a withdrawal of such demand and waived his right to insist on the constitutional provisions relating to a speedy trial. 22A C.J.S. Criminal Law § 469, p. 41.

Petitioner has shown no deprivation of his right to a speedy trial.

Petitioner remanded to custody.

TAFT, C. J., and ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and HERBERT, JJ., concur.

GIBSON, Judge (dissenting).

I cannot concur with the majority of the court in this case. Althouth it is extremely difficult to generalize as to when those accused of crime have been denied the speedy public trial guaranteed by both state and federal constitutions, I am satisfied that the petitioner here has been deprived of such rights.

There is no question that one imprisoned for a crime is still entitled to his right to a speedy trial for other offenses. Only last December this court in State ex rel. Lotz v. Hover, Pros. Atty., 174 Ohio St. 68, 186 N.E.2d 841, expressly stated that, even though one is incarcerated in one of the state's penal institutions, he is still entitled to a speedy trial on any other indictment pending against him, and quoted with approval the following excerpt from the court's opinion in State v. Keefe (1908), 17 Wyo. 227, 257, 98 P. 122:

"The right of a speedy trial is granted by the Constitution to every accused. A convict is not excepted. He is not only amenable to the law, but is under its protection as well. No reason is perceived for depriving him of the right granted generally to accused persons, and thus, in effect, inflict upon him an additional punishment for the offense of which he has been convicted. At the time of defendant's trial upon the one information, he was under the protection of the guaranty of a speedy trial as to the other. It cannot be reasonably maintained, we think, that the guaranty became lost to him upon his conviction and sentence or his removal to the penitentiary. Possibly in his case, as well as in the case of other convicts, a trial might be longer delayed, in the absence of a statute controlling the question, than in the case of one held in jail merely to await trial without violating the constitutional right, for an acquittal would not necessarily terminate imprisonment. However, the purpose of the provision against an unreasonable delay in trial is not solely a release from imprisonment in the event of acquittal, but also a release from the harassment of a criminal prosecution and the anxiety attending the same; and hence an accused admitted to bail is protected as well as one in prison. Moreover, a long delay may result in the...