State v. Shank

• Decision Date: 13 March 1962
• Citation: 185 N.E.2d 63,115 Ohio App. 291
• Parties: , 20 O.O.2d 371 The STATE of Ohio, Appellee, v. SHANK, Appellant.
• Court: Ohio Court of Appeals

Page 291

115 Ohio App. 291

185 N.E.2d 63, 20 O.O.2d 371

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

Court of Appeals of Ohio, Tenth District, Franklin County.

March 13, 1962.

Henry Clay Scott, Columbus, for appellant.

Earl W. Allison, Pros. Atty., and Fred L. Newsom, Jr., Columbus, for appellee.

BRYANT, Judge.

John W. Shank has appealed to this court on questions of law from the judgment of the Court of Common Pleas of Franklin County, finding him to be an habitual criminal and sentencing him to life imprisonment in the Ohio Penitentiary.

Shank was indicted by the Grand Jury of Franklin County on February 28, 1961, and this indictment will hereinafter be referred to as the 1961 indictment. It contains a single count which describes therein four felonies alleged to have been committed by Shank and alleges that Shank pleaded guilty to all four, thereby bringing him under the terms of the habitual criminal statutes. Sections 2961.11, 2961.12 and 2961.13 of the Revised Code authorize life imprisonment for persons convicted of any of the approximately two dozen offenses enumerated, including burglary and grand larceny.

The four offenses described in the 1961 indictment, the places where committed, the dates of the guilty pleas and the sentences imposed are as follows:

1. Grand larceny, Franklin County, Ohio, October 27, 1941, Ohio State Reformatory, Mansfield, Ohio.

2. Burglary, third degree, and grand larceny, second degree Erie County, New York, May 21, 1948, sentence suspended, placed on probation (on grand larceny 2d degree only).

3. Burglary and grand larceny, Franklin County, Ohio, November 18, 1948, Ohio Penitentiary.

4. Burglary, Franklin County, Ohio, November 4, 1953, Ohio Penitentiary. (See state's exhibits 1 through 8.)

Section 2961.11, supra, enumerates the various offenses to which the habitual criminal law applies, and burglary and grand larceny are among those listed. As above noted, the 1961 indictment alleges that Shank pleaded guilty to two indictments charging burglary, one charging grand larceny and one charging grand larceny, second degree.

Section 2961.12 of the Revised Code, under which the 1961 indictment was drawn, is as follows:

'A person convicted of any of the offenses specified in section 2961.11 of the Revised Code, who has been three times previously convicted of any of the said offenses, separately prosecuted and tried therefor either in this state or elsewhere, shall be adjudged an habitual criminal and shall be sentenced to imprisonment for the term of his natural life. Any of such convictions which result from or are connected with the same transaction, or result from offenses committed at the same time, shall be counted for the purposes of this section as one conviction.'

Section 2961.13, supra, so far as here applicable, provides as follows:

'If at any time either before or after sentence, it appears that a person convicted of one of the felonies enumerated in section 2961.11 of the Revised Code, has previously been convicted of any of said felonies, the prosecuting attorney of the county in which such last conviction was had shall cause an indictment to be returned charging such person with such previous convictions.

'The court in which such last conviction was had shall cause the said person, whether confined in prison or not, to be served with a copy of such indictment and to be brought before such court. Such court shall inform the accused of his right to be tried as to the truth thereof, and shall require the accused to say whether he is the same person as charged in such previous convictions set forth in such indictment. If the accused says he is not the same person, or remains silent, the court shall enter a plea of not guilty and a jury shall be impaneled to inquire whether the accused is the same person, as charged in such previous convictions set forth in said indictment. The accused may waive trial by jury and consent to be tried by the court. The usual procedure in the trial of criminal cases shall be followed in the impaneling of such jury and the trial under such indictment. If the accused pleads guilty to such indictment, or if the jury finds him guilty, or if the court finds him guilty after waiver of a jury, the court shall sentence him to the punishment prescribed in section 2961.11 or 2961.12 of the Revised Code, as the case may be, and shall vacate the previous sentence, if sentence has been imposed, deducting from the new sentence all time actually served by the defendant on the sentence so vacated.'

In this case, the record discloses that Shank not only pleaded not guilty to the 1961 indictment but, prior thereto, several times attacked the sufficiency of the indictment or the validity of the proceedings. It will be noted that Section 2961.13, supra, specifically grants to the accused the right to a jury trial upon any charge of fourth conviction and provides that 'the usual procedure in the trial of criminal cases shall be followed in the impaneling of such jury and the trial under such indictment.' (Emphasis added.)

On March 3, 1961, counsel for Shank filed a motion to quash the indictment on the ground that the allegations which it contained do not constitute an offense. At the same time a plea in abatement was filed on behalf of Shank challenging the jurisdiction of the court over him and alleging that Section 2961.12, supra, under which the indictment was drawn, is unconstitutional. The court overruled both pleadings.

On June 7, 1961, counsel for Shank, in addition to the plea of not guilty entered for Shank, made an additional attack upon the indictment, pleading, first, former conviction, second, once in jeopardy, and third, res judicata.

It was the contention of the defense that the habitual criminal statutes do not create a new offense but merely authorize a heavier penalty upon conviction of the fourth offense, and that Shank previously had been prosecuted and punished for the alleged fourth offense. The three pleas were overruled in their entirety by the trial court.

It would appear that counsel for Shank sought to contest the charge contained in the indictment by all appropriate means and that the trial court was under the obligation to follow 'the usual procedure in the trial of criminal cases,' both as to the selection of the jury and the trial which followed. If the defendant at any time during the trial made any change whatsoever in his plea of not guilty, we have been unable to find any evidence of it in the record.

On June 15, 1961, the defendant was placed on trial before a judge and jury in the court below. Three witnesses were called on behalf of the prosecution and twelve exhibits were introduced, after which the prosecution rested its case and counsel for Shank moved for a directed verdict on the ground of failure of the state to prove the alleged New York conviction, which was overruled. The defense then rested and, after arguments and the charge by the court, the jury retired and later returned a verdict finding 'John W. Shank, guilty of habitual criminal as he stands charged in the indictment.'

On the same day, to wit, June 15, 1961, that the guilty verdict was returned, the trial court sentenced Shank to the Ohio Penitentiary 'for the balance of his life.' Also on that date a motion for a new trial was filed. The motion was overruled on June 20, 1961, at which time counsel for Shank filed a notice of appeal, and the case was docketed in this court.

On July 26, 1961, this court, on application of defendant, dismissed the appeal without prejudice and remanded the cause. The record does not affirmatively show the reason for the remand but it is noted that the trial court, on June 15, 1961, at the time of imposing the life sentence upon Shank had neglected to vacate and set aside the previous judgment imposed on November 4, 1953, of an indeterminate sentence of one to seven years in the Ohio Penitentiary. In any event, upon the return of the case to the court below a stipulation of facts was entered into, which is as follows:

'It is hereby stipulated and agreed by and between the attorneys for the state of Ohio and the defendant, John W. Shank as to the following facts:

'1. Defendant, John W. Shank, was sentenced to the Ohio Penitentiary on November 4, 1953, for a crime of burglary, Case No. 33853, Court of Common Pleas, Franklin County, Ohio '2. Defendant was paroled from the Ohio Penitentiary for the above offense on November 20, 1958.

'3. Defendant was given a final release from parole on December 1, 1959, and discharged by virtue of the above offense.

'4. Defendant has not been convicted of any offense enumerated in R.C. 2961.11 since November 4, 1953.'

The trial court, then, by journal entry, set aside and vacated the judgment imposing sentence upon Shank and overruling his motion for a new trial. It then, for a second time, imposed on Shank a sentence to life imprisonment, this time setting aside the judgment and sentence entered on November 4, 1953, and again, considering the motion for a new trial in light of the stipulation above referred to, overruling such motion.

Thereafter, defendant filed a second notice of appeal. A bill of exceptions was allowed and signed by the court, a brief and assignment of errors was filed in this court on August 18, 1961. A receipt was attached to the brief signed by counsel for the state, indicating that a copy thereof had been served on such counsel on August 18, 1961.

The case came on for argument before this court on January 25, 1962, more than five months after the filing of Shank's brief, but as of that date no brief in opposition to Shank's brief had been filed. A promise made at the time of argument that such answer brief would be filed within five days after oral argument was not fulfilled, either in five days after argument or in the month which followed, and the only brief before us as this is written is that filed by Shank.

The...