State v. Henry

• Decision Date: 20 March 1968
• Citation: 42 O.O.2d 379,13 Ohio App.2d 217,235 N.E.2d 533
• Parties: , 42 O.O.2d 379 The STATE of Ohio, Appellee, v. HENRY, Appellant.
• Court: Ohio Court of Appeals

Page 217

13 Ohio App.2d 217

235 N.E.2d 533, 42 O.O.2d 379

The STATE of Ohio, Appellee, v. HENRY, Appellant.

Court of Appeals of Ohio, Fourth District, Gallia County.

March 20, 1968.

Syllabus by the Court

An accused is not denied his constitutional guaranty of a speedy trial where, following the filing of an affidavit charging him with a felony and his plea of not guilty, he is bound over to the Common Pleas Court and then turned over to the authorities of another county for trial for felony, found guilty and sentenced to the penitentiary and, when released from confinement three years later, he is delivered to the authorities of the first county to be tried for such previously-charged felony on an information filed subsequent to his release from confinement and enters a plea of guilty thereto.

John A. Epling, Pros. Atty., for appellee.

William J. Henry, in pro. per.

GRAY, Judge.

This is an appeal from a judgment of the Common Pleas Court of Gallia County denying postconviction relief to defendant.

An affidavit was filed in the Municipal Court of Gallipolis, on June 24, 1964, charging defendant with breaking and entering a service station with intent to commit larceny. Defendant entered a plea of not guilty and was bound over, under bond, to the Court of Common Pleas of Gallia County.

Defendant was then delivered to the custody of the authorities of Erie County, Ohio, on a charge of breaking and entering. He was tried, found guilty and sentenced to the Ohio Penitentiary on the Erie County charge. Defendant was released from the Marion Correctional Institution on August 3, 1967, and was then delivered to the authorities of Gallia County for trial on the above charges of breaking and entering and larceny.

On August 14, 1967, defendant was brought into open court and there, in the presence of the prosecuting attorney, his court-appointed attorney, and the trial judge, he waived in writing prosecution by indictment and also waived service of a copy of the information filed against him.

The journal entry filed August 18, 1967, shows that he pleaded guilty to the charge of burglary and also to the charge of larceny as set forth in the information filed in this cause.

On December 4, 1967, defendant filed motions for appointment of counsel, to vacate the sentence, and to grant defendant his parole. On the same date, he also filed a petition under the postconviction remedy statutes of Ohio 'to void his conviction and to vacate the sentence in this instant case.'

The burden of defendant's complaint is that he did not receive a speedy trial. The trial court, on December 11, 1967, filed its decision, wherein it made findings of fact and stated its conclusions of law. The transcript of the record of defendant's pleas of guilty was reproduced in full in the decision. Among other things, it shows that defendant was represented by counsel; that he understood the nature of the charges brought against him; that he had discussed his case with his counsel; that he understood that he could require that he be indicted by a grand jury before he could be prosecuted-all of which was explained to him by this attorney; that the penalty for each charge was explained to him; that he signed a waiver permitting the court to proceed by information; that he pleaded guilty to both charges; that both he and his attorney were inquired of to determine if they had anything further to say why sentence should not then be pronounced upon defendant; and that their answers were in the negative. Defendant, upon inquiry by the trial judge, indicated that he had a previous record. The trial court then sentenced defendant to confinement in the Ohio Penitentiary on both counts, both sentences to run concurrently.

The trial court journalized its judgment on December 18, 1967, and found that defendant was not denied a speedy trial.

On December 26, 1967, defendant filed his notice of appeal and thereby lodged this case in this court.

At the outset it should be noted that the alleged crime was committed on June 15, 1964, and the charge was filed in Municipal Court on June 24, 1964. After serving over three years in a penal institution defendant was brought back to Gallia County, and an information was filed against him on August 14, 1967. He was brought into court on that day, and, after the above proceedings took place, he pleaded guilty and was sentenced.

The Supreme Court of Ohio, in Dowell v. Maxwell, Warden, 174 Ohio St. 289, at pages 290 and 291, 189 N.E.2d 95, at page 96 said:

'The validity of an accused's conviction is dependent on the jurisdiction of the trial court. The jurisdiction of the court is invoked by the return of a valid indictment and is not based on the process by which an accused is taken into custody or the findings made on the preliminary examination. Any defect or irregularity in either the arrest or preliminary examination does not affect the validity of the accused's conviction. Brown v. Maxwell, Warden, 174 Ohio St. 29, 186 N.E.2d 612; Norton v. Green, Supt., 173 Ohio St. 531, 184 N.E.2d 401; and Doughty v. Sacks, Warden, 173 Ohio St. 407, 183 N.E.2d 368. Hence, the trial court had jurisdiction over the crime and of the person of the petitioner by the return of the indictment against him. There is no validity to petitioner's argument in this respect.'

Section 2945.71, Revised Code, states in part:

'No person shall be detained in jail without a trial for a continuous period of more than two terms after his arrest and commitment on an indictment or information, or, if he was in jail at the time the indictment or information was found, more than two terms after the term at which the indictment or information was presented. * * *' (Emphasis added.)

It should be noted that that section uses the term, 'jail,' and not 'penitentiary.' Defendant was in the penitentiary and not in jail.

At this juncture we would like to make the...