State v. Mishelek
| Decision Date | 23 April 1975 |
| Docket Number | No. 74-374,74-374 |
| Citation | 42 Ohio St.2d 140,326 N.E.2d 659 |
| Parties | , 71 O.O.2d 116 The STATE of Ohio, Appellee, v. MISHELEK, Appellant. |
| Court | Ohio Supreme Court |
Joseph J. Baronzzi, Prosecuting Atty., for appellee.
James Richard Mishelek, in pro per.
This court recently held in State v. Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540, that '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,' and is sufficient to warrant an evidentiary hearing. 2
Therefore, on authority of, and for the reasons stated in, State v. Milanovich, the motion for leave to appeal is allowed, and the judgment of the Court of Appeals is reversed, and, in accordance with Milanovich, the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
No decision of the United States Supreme Court yet requires us to hold as we did in Milanovich and as the majority does in the case at bar. Milanovich involved counsel appointed and paid by the state. The instant case concerns counsel retained and paid by the accused. I do not believe that the fair and orderly administration of criminal justice will be served by reaching the same result in both of these cases.
PAUL W. BROWN, J., concurs in the foregoing dissenting opinion.
1 'I, James Richard Mishelek * * * hereby voluntarily retract and withdraw my plea of not guilty to the charge in the indictment, entered herein on a former day of this court, and having been fully informed as to the charge contained in the indictment, and the penalty therefor provided by law, and fully understanding my constitutional rights, do enter a plea of guilty of armed robbery and assault with a dangerous weapon (2 counts) as charged in the indictment.
'I further certify 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.'
2 However, as this court pointed...
To continue reading
Request your trial
-
State v. Hester
...or summary judgment procedure is required. See State v. Milanovich (1975), 42 Ohio St.2d 46, 325 N.E.2d 540; State v. Mishelek (1975), 42 Ohio St.2d 140, 326 N.E.2d 659. Appellee postulates that all the foregoing may be a vain act, for even if the allegation of negligence of retained counse......
-
Reams v. Berry
...supra, 545 F.2d at 553. See also, Steed v. Salisbury, 459 F.2d 475 (6th Cir. 1972); State v. Hester, supra; State v. Mishelek, 42 Ohio St.2d 140, 326 N.E.2d 659 (1975); and State v. Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 Moreover, it should be noted that petitioner's present inability......
-
King v. Perini
...relief . . . which relies upon evidence outside the record" (emphasis added). This principle was reaffirmed in State v. Mishelek, 42 Ohio St.2d 140, 141, 326 N.E.2d 659 (1975) and State v. Hester, 45 Ohio St.2d 71, 76, 341 N.E.2d 304 Petitioner King's charge that his guilty plea was induced......
-
State v. Jackson
...and necessary for this cause and, therefore, it was error to summarily dismiss the petition. This court, in State v. Mishelek (1975), 42 Ohio St.2d 140, 326 N.E.2d 659, approved the rationale in State v. Milanovich, supra, but, in footnote 2, at page 141, aptly stated "However, as this cour......