State v. Speaks

• Decision Date: 10 January 1969
• Citation: 244 N.E.2d 799,17 Ohio App.2d 129
• Parties: , 46 O.O.2d 168 The STATE of Ohio, Appellee, v. SPEAKS, Appellant.
• Court: Ohio Court of Appeals

Page 129

17 Ohio App.2d 129

244 N.E.2d 799, 46 O.O.2d 168

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

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

Jan. 10, 1969.

Syllabus by the Court

The sentence imposed for escape from confinement is not affected by the validity of the sentence being served at the time of the escape, and, where a prisoner considers his confinement improper, he is compelled, in order to test its validity, to follow the procedures which have been set up for that purpose. Under such circumstances the doctrine of self help is not available to him.

Everett Burton, Pros. Atty., for appellee.

Raymond T. Switalski, Portsmouth, for appellant.

GRAY, Judge.

This cause is in this court on an appeal from a judgment of the Court of Common Pleas of Scioto County wherein defendant was found guilty of the charge of escape from confinement.

Defendant, feeling aggrieved by this judgment, filed his notice of appeal and assigned the following error:

'1. The court of Common Pleas erred in refusing to direct the jury to render a verdict of not guilty at the conclusion of the evidence.'

In February 1964, defendant was indicted by the Grand Jury of Licking County for failure to provide. Defendant, while represented by counsel hired by himself, entered a plea of guilty. Defendant was placed on probation for three years.

On August 12, 1965, defendant was brought before the Common Pleas Court of Licking County to show cause why his probation should not be revoked. Defendant appeared without counsel at this hearing. His probation was revoked.

Subsequently, he was sent to the Shawnee Honor Camp, Scioto County. He was later indicted for escaping from confinement of that camp, in violation of Section 2901.11, Revised Code.

Defendant's contention is that since his probation was revoked at a time when he was not represented by counsel such confinement at Shawnee Honor Camp was not legal and his conviction of the charge of escape from confinement was, therefore, illegal. Defendant cites the case of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, as ocntrolling. That case stands for the proposition that appointment of counsel for an indigent defendant is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected. The United States Supreme Court held that revocation of probation and imposition of sentence was a stage of a criminal proceeding where substantial rights of the accused were involved.

Defendant maintains that the principle enunciated in the Mempa case is conclusive of the matter. However, we believe that there is a further question involved. The state in its brief admits that defendant appeared at the hearing where his probation was revoked without the presence of counsel. The question then arises, could defendant be guilty of the crime with which he was charged in Scioto County, to wit, that of escape from confinement, under the conceded facts?

We think that defendant's position is untenable and that he can be guilty of the charge of escape from confinement under the facts and circumstances he alleges.

Mempa v. Rhay was decided by the United States Supreme Court on November 13, 1967. On December 8, 1967, the case of Laws v. United States, 10 Cir., 386 F.2d 816, was decided, which held that the sentence imposed for escape from confinement is not affected by the validity of the sentence being served at the time of the escape.

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