State v. Milanovich, No. 74-350

CourtUnited States State Supreme Court of Ohio
Writing for the CourtSTERN; C. WILLIAM O'NEILL; CELEBREZZE
Citation42 Ohio St.2d 46,325 N.E.2d 540,71 O.O.2d 26
Parties, 71 O.O.2d 26 The STATE of Ohio, Appellant, v. MILANOVICH, Appellee.
Docket NumberNo. 74-350
Decision Date02 April 1975

Page 46

42 Ohio St.2d 46
325 N.E.2d 540, 71 O.O.2d 26
The STATE of Ohio, Appellant,
v.
MILANOVICH, Appellee.
No. 74-350.
Supreme Court of Ohio.
April 2, 1975.

Syllabus by the Court

1. Where a claim raised by a petition for postconviction relief under R.C. 2953.21 is sufficient on its face to raise an issue that petitioner's conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief.

2. Upon a motion by the prosecuting attorney for summary judgment, a petition [325 N.E.2d 541] for postconviction relief shall be dismissed where the pleadings, affidavits, files and other records show that there is no genuine issue as to any material fact, and there is no substantial constitutional issue established.

On January 17, 1972, Nicholas Milanovich, Jr., appellee herein, was arraigned in the Court of Common Pleas of Columbiana County upon an indictment for armed robbery and entered a plea of not guilty. He was represented by appointed counsel, Donald A. Lewis. The next day, defendant appeared with counsel in open court and requested to change his plea from not guilty to guilty. He submitted a written change of plea in which he certified 'that no promises of leniency, or probation, or threats of any kind have been made to me by my counsel, or by any members of the prosecutor's staff, and that my action today is entirely voluntary on my part.' After making inquiries as to defendant's understanding of his change of plea, the

Page 47

court permitted him to enter a plea of guilty. Defendant was sentenced to form 10 to 25 years in the state penitentiary.

On February 29, 1972, defendant's counsel filed a motion to suspend further execution of the sentence, pursuant to the provision of R.C. 2947.061 for 'shock parole.' After a hearing, the motion was denied.

On May 29, 1973, Milanovich filed a petition for postconviction relief, alleging that his guilty plea had been induced by counsel's promise that 'stock parole' would be obtained if petitioner pleaded guilty. Petitioner claimed that his counsel instructed him that 'if the judge asks you if you have been made any promises you should answer 'no sir' because legally we aren't permitted to do such but we all do it under the table anyway.'

On July 27, 1973, the Court of Common Pleas held a hearing to determine whether petitioner was entitled to a formal evidentiary hearing under R.C. 2953.21 et seq. The prosecuting attorney appeared for the state, and petitioner's court-appointed counsel at the time of the change of plea also appealed. *

The trial judge dismissed the petition, and made the following findings of fact and conclusions of law:

'1. The court find that the defendant in open court stated that no promises had been made to him that he would get probation, neither by his counsel or any members of the prosecutor's staff.

'2. The court finds that the defendant through his counsel and in open court specifically asked for leave to change his plea from not guilty to guilty and to be immediately sentenced.

Page 48

'3. Defendant made no request or application for probation to the court.

'4. That the record shows that petitioner's claim that he was assured by his counsel that he would be placed on probation is untrue.'

The Court of Appeals reversed the judgment and remanded the cause for an evidentiary hearing.

This court granted a motion for leave to appeal, and appointed counsel to represent the petitioner before this court.

Joseph J. Baronzzi, Prosecuting Atty., for appellant.

David W. Fais, Columbus, for appellee.

[325 N.E.2d 542] STERN, Justice.

This is a case brought under R.C. 2953.21, Ohio's statutory provision for postconviction determination of constitutional rights. R.C. 2953.21 provides, in part:

'(C) Before granting a hearing the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including but not limited to the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript. Such court reporter's transcript if ordered and certified by the court shall be taxed as court costs. If the court dismisses the petition it shall make and file findings of fact and conclusions of law with respect to such dismissal.

'(D) Within ten days after the docketing of the petition or within such further time as the...

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460 practice notes
  • Smith v. Anderson, No. C-1-95-320.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 22 Febrero 2000
    ...at 417). One of the exceptions was a defendant who was represented on his direct appeal by his trial counsel. See State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 The reason for the Cole court's analysis was because "counsel cannot realistically be expected to argue his own incompetenc......
  • State v. Michael B. Buhrman, 97-LW-3447
    • United States
    • United States Court of Appeals (Ohio)
    • 12 Septiembre 1997
    ...to present sufficient evidentiary materials containing operative facts in support of his or her claims. State v. Milanovich (1975), 42 Ohio St.2d 46, 71 O.O.2d 26, 325 N.E.2d 540; State v. Perry (1967), 10 Ohio St.2d 175. One instance where a defendant fails to present sufficient evidentiar......
  • Cooey v. Anderson, No. 5:96 CV 797.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 4 Septiembre 1997
    ...the opportunity to meet the burden discussed in Lawson and Coleman. In light of the Ohio Supreme Court's holding in State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975), the court finds that it must agree. In Milanovich, the Court considered a post-conviction petition in which the p......
  • State v. Williams, No. 2015–1478.
    • United States
    • United States State Supreme Court of Ohio
    • 10 Noviembre 2016
    ...to gain and comparatively little to lose."State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999), quoting State v. Milanovich, 42 Ohio St.2d 46, 51, 325 N.E.2d 540 (1975).Conclusion{¶ 96} When a trial court states the mandatory terms of incarceration in a sentencing entry and then ......
  • Request a trial to view additional results
460 cases
  • Smith v. Anderson, No. C-1-95-320.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 22 Febrero 2000
    ...at 417). One of the exceptions was a defendant who was represented on his direct appeal by his trial counsel. See State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 The reason for the Cole court's analysis was because "counsel cannot realistically be expected to argue his own incompetenc......
  • State v. Michael B. Buhrman, 97-LW-3447
    • United States
    • United States Court of Appeals (Ohio)
    • 12 Septiembre 1997
    ...to present sufficient evidentiary materials containing operative facts in support of his or her claims. State v. Milanovich (1975), 42 Ohio St.2d 46, 71 O.O.2d 26, 325 N.E.2d 540; State v. Perry (1967), 10 Ohio St.2d 175. One instance where a defendant fails to present sufficient evidentiar......
  • Cooey v. Anderson, No. 5:96 CV 797.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 4 Septiembre 1997
    ...the opportunity to meet the burden discussed in Lawson and Coleman. In light of the Ohio Supreme Court's holding in State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975), the court finds that it must agree. In Milanovich, the Court considered a post-conviction petition in which the p......
  • State v. Williams, No. 2015–1478.
    • United States
    • United States State Supreme Court of Ohio
    • 10 Noviembre 2016
    ...to gain and comparatively little to lose."State v. Calhoun, 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999), quoting State v. Milanovich, 42 Ohio St.2d 46, 51, 325 N.E.2d 540 (1975).Conclusion{¶ 96} When a trial court states the mandatory terms of incarceration in a sentencing entry and then ......
  • Request a trial to view additional results

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