State v. Carter, 27898
| Citation | 304 N.E.2d 415,36 Ohio Misc. 170,65 O.O.2d 276 |
| Decision Date | 10 September 1973 |
| Docket Number | No. 27898,27898 |
| Parties | , 65 O.O.2d 276 The STATE of Ohio v. CARTER. |
| Court | Ohio Court of Common Pleas |
Randall A. Anderson, Assistant Pros. Atty., for plaintiff.
James L. Mackin, Columbus, for defendant-petitioner.
The defendant-petitioner, Lewis Carter, has filed a petition for postconviction relief, pursuant to Revised Code Section 2953.21 et seq., setting forth as his sole contention the allegation that, because of the inadequacy of trial counsel, he was deprived of his Sixth Amendment right to counsel guaranteed him by the federal Constitution and made applicable to the states through the Fourteenth Amendment.
The defendant was convicted by a jury of one count of armed robbery and was sentenced to a term of not less than ten nor more than twenty-five years in the Ohio State Pententiary.
Named in the defendant-petitioner's petition for post-conviction relief were the state of Ohio and Harold J. Cardwell, then Warden of the Ohio State Penitentiary. Both of these parties (styled defendants in the petition for postconviction relief) have filed separate motions to dismiss. The court's rulings thereon, and the reason for said rulings, follow:
A. The motion of the defendant, Harold J. Cardwell, Warden of the Ohio Penitentiary, seeking an order of the court dismissing him as a party defendant for the reason that he is not a proper party to the captioned cause is, in the court's opinion, WELL TAKEN and the court does, therefore, SUSTAIN same in its entirety. Harold J. Cardwell is, thus, dismissed as a party to this petition for postconviction relief. In a postconviction action, the court concludes that the only proper parties are those who were parties to the judgment and conviction itself.
B. The motion of the state of Ohio seeking an order of the court dismissing the petition for postconviction relief upon the grounds that the sole issue raised in said petition (inadequacy of counsel) could have been raised by the defendant-petitioner at trial or on appeal from the judgment of conviction and is, therefore, res judicata, pursuant to the decision of the Ohio Supreme Court in State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, is, in the court's opinion, NOT WELL TAKEN and the court does, therefore, OVERRULE same in its entirety. In so ruling, the court makes the following, non-exclusive, observations:
1. The case of State v. Perry, supra, is the authoritative Ohio Supreme Court decision dealing with the question of what can and cannot be raised in a postconviction petition filed pursuant to Revised Code Section 2953.21 et seq. That case states, in pertinent part, as follows:
'Constitutional issues cannot be considered in postconviction proceeding under Section 2953.21 et seq., where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment and thus have been adjudicated against him.' (Paragraph 7 of the syllabus.)
'Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who is represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.' (Paragraph 9 of the syllabus, emphasis added by the Ohio Supreme Court.)
2. Following his conviction, the defendant retained new counsel for the purposes of appeal; trial counsel not participating in any stage subsequent to the defendant-petitioner's sentencing.
3. The defendant-petitioner did attempt to raise the issue of inadequacy of counsel-for the first time-in the Court of Appeals. That court dismissed the defendant-petitioner's contention as to this issue in the following language:
Thus, the defendant-petitioner did attempt to raise this issue at the appellate level but was prevented from doing so by virtue of the fact that he had not raised it initially in the trial court, either by motion for new trial or otherwise.
4. Since it is clear from the record that the issue of inadequacy of counsel was not riased in the trial court and, thus, according to the appellate court, could not be raised on appeal, it remains to be seen whether or not this is an issue which could have been raised at the trial court level.
5. The...
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Van Hook v. Anderson, No. C-1-94-269.
...from raising a claim of ineffective assistance of counsel in a petition for postconviction relief.'" (quoting State v. Carter, 36 Ohio Misc. 170, 304 N.E.2d 415 (1973))); City of Dayton v. Hill, 21 Ohio St.2d 125, 125, 256 N.E.2d 194 (1970). Although an attorney is not required to raise his......
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...that the issue of competent counsel has been adjudicated. Id. at 75, 341 N.E.2d 304. The Ohio Supreme Court quoted State v. Carter, 36 Ohio Misc. 170, 304 N.E.2d 415 (1973), with approval, which reasoned that the allegation of ineffective assistance of trial counsel can be raised in a petit......
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Jamison v. Collins
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