State v. Barnes
| Decision Date | 24 September 1982 |
| Citation | 7 Ohio App.3d 83,7 OBR 96,454 N.E.2d 572 |
| Parties | , 7 O.B.R. 96 The STATE of Ohio, Appellee, v. BARNES, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. The venue of a post-conviction remedy has no constitutional basis, and does not depend on the situs of the crime. Irregularities in transferring venue over post-conviction proceedings, when the transferring court has jurisdiction, renders the judgment voidable.
2. Failure to make proper objection to a voidable judgment transferring venue waives the error rendering same voidable.
3. Appointment of counsel is not required for the initial burden of preparing and presenting petitions of indigents for post-conviction relief.
4. Where a hearing is required on the merits of a post-conviction remedy petition (R.C. 2953.21 et seq. ), an indigent petitioner is entitled upon request as a matter of right under the provisions of the Public Defender Act, R.C. Chapter 120, to have counsel appointed to represent him at such hearing.
Stephen E. Keister, Pros. Atty., and Charles F. Koch, Van Wert, for appellee.
Randall M. Dana, Public Defender, and Harry R. Reinhart, Asst. Public Defender, for appellant.
This is an appeal by the petitioner Robert E. Barnes from a judgment of the Court of Common Pleas of Van Wert County dismissing his petition for post-conviction relief from his conviction and sentence by the Court of Common Pleas of Henry County for the crime of murder occurring in Van Wert County. The post-conviction remedy petition was filed in the Court of Common Pleas of Henry County but proceedings thereon were transferred sua sponte to the Court of Common Pleas of Van Wert County. The judge who ordered the transfer is a judge of the Court of Common Pleas of Lucas County and is the same judge who acted as a judge of the Court of Common Pleas of Henry County in the original conviction and sentence and the same judge who acted as a judge of the Court of Common Pleas of Van Wert County in rendering the judgment now appealed, sitting by assignment in the counties of Henry and Van Wert respectively.
At the time of the hearing of this appeal on its merits, this court, being of the mistaken impression that the post-conviction remedy petition had been filed initially in Van Wert County rather than in Henry County, the county of sentence, required counsel for the parties to brief the issue of venue of the post-conviction remedy proceedings. This resulted in the petitioner, appellant herein, amending his brief to include as his second assignment of error the following which we will dispose of before considering the first assignment of error:
If these respective branches of the assignment of error conformed with the procedural aspect of this case, the appellant's arguments and authority dealing therewith would be most convincing, but the procedural aspect of this case presents a somewhat different issue. As hereinbefore noted the post-conviction remedy petition was, in fact, initially filed in Henry County and not in Van Wert County and it was decided by the Court of Common Pleas of Van Wert County only after venue was changed thereto sua sponte by the Court of Common Pleas of Henry County.
It should also be noted that neither of the parties has, prior to the issue being raised by this court on appeal, made any objection at any time from the standpoint of venue or jurisdiction to the entry of judgment on the post-conviction remedy petition by the Court of Common Pleas of Van Wert County. The issue thus narrows to whether under such circumstances the judgment rendered by that court is void or, for that matter, voidable by post-conviction proceedings.
Venue with respect to the situs of a crime is ordinarily considered an element of the offense which must be proved along with the other elements. As such it has a constitutional origin and guarantee which may be claimed by the defendant. Here, however, we have an entirely different situation. Conviction and sentence has already occurred, the crime has been proved, and the only issue (under R.C. 2953.21) is whether "there was such a denial or infringement of his [the defendant's] rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States." The issue has nothing to do with guilt or innocence, in fact, but relates solely to the procedure by which guilt was proved.
To a large degree the post-conviction remedy provided by R.C. 2953.21 is a procedural review, a special statutory proceeding, with different rules of pleading, different rules of evidence, different burdens of proof, and different judgments than exist in criminal trials.
Except for due process considerations, the venue of a post-conviction remedy proceeding has no constitutional basis and does not depend on the situs of the crime. Although R.C. 2953.21 requires that the post-conviction remedy petition be filed "in the court which imposed sentence," there is nothing in R.C. 2953.21 et seq., which either requires or precludes a transfer of venue of such proceeding. The same considerations existing respecting the selection of juries and/or the protection of witnesses in criminal trials have no bearing with respect to post-conviction remedy proceedings. Crim.R. 18 relating to venue and change of venue appears to be designed for the purpose of guaranteeing "a fair and impartial trial" of a "criminal case."
"Venue" is not the equivalent of "jurisdiction." The former denotes the locality where the suit should be heard whereas the latter denotes the power to hear. Irregularities in venue, when a court has jurisdiction over the subject matter, generally make the judgment merely voidable rather than void. As stated in 22 Corpus Juris Secundum 570-571, Criminal Law, Section 222:
In our opinion the change of venue from Henry County to Van Wert County was not void and, if erroneous, merely voidable. By failing to object thereto the petitioner waived any error in the transfer. The second assignment of error is, therefore, without merit.
Proceeding then to petitioner's first assignment of error:
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