State v. Turpin
| Decision Date | 29 July 1969 |
| Citation | 250 N.E.2d 94,19 Ohio App.2d 116 |
| Parties | , 48 O.O.2d 236 The STATE of Ohio, Appellee, v. TURPIN, Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. The 'modern courts' amendment to the Ohio Constitution gives the Court of Appeals 'original jurisdiction * * * In any cause on review as may be necessary to its complete determination.' Section 3(B)(1)(f), Article IV.
2. A criminal case having a long history of habeas corpus actions and other appellate procedural problems is such that it is necessary that original jurisdiction be exercised, when it comes before the Court of Appeals on review of a sentencing Court of Common Pleas dismissal of a petition filed seeking postconviction relief under Sections 2953.21 to 2953.24, Revised Code.
3. The amendment of Section 2953.21, Revised Code, effective December 9, 1967, now provides that a petition for postconviction relief need only be a 'person convicted of a criminal offense' and that the relief sought may be the vacation of the 'judgment or sentence' or 'other appropriate relief.' Such petitioner does not have to be in custody or under sentence in order to seek postconviction relief in the form of vindication or removal of the stigma of a long sentence fully served.
4. Vindication and removal of the stigma come within the meaning of vacation of the judgment or sentence or other appropriate relief as provided by the amendment of Section 2953.21, Revised Code.
5. An indictment is not made invalid for surplus allegations such as naming obsolete sections of the Ohio General Code, or for defects or imperfections in the sentence, or for other defects or imperfections when the words of the indictment are sufficient to give the accused notice of the offenses of which he is charged.
Violet J. Tarcai, Cleveland, for appellant.
David D. Dowd, Jr., Massillon, for appellee.
McLAUGHLIN, Judge. (Retired. Assigned to active duty under authority of Section 6(C) Article IV, Constitution.)
This appeal on questions of law is from an order of the Common Pleas Court dismissing a petition for postconviction relief on the sole ground that the petitioner, having served his full time, is no longer under sentence.
The petitioner was indicted on three counts for (1) inducing illicit intercourse, (2) permitting it upon the premises, and (3) harboring.
He was tried by a jury and found guilty on each count. He was sentenced to a total of ten years. His conviction and sentence was affirmed by this Court of Appeals and by the Supreme Court of Ohio.
He entered the Ohio Penitentiary on November 2, 1956. He served his full ten-year sentence and was discharged on November 1, 1966.
This case has a long history, beginning soon after he was imprisoned and lasting for about ten years. He was denied release by habeas corpus in state courts at all levels, including the Common Pleas Courts of Franklin and Stark Counties and the Courts of Appeals for those counties. He was denied release by habeas corpus by the Supreme Court of Ohio on two occasions, once on appeal and once on an original action. This case has a similar history of unsuccessful attempts to obtain his release on habeas corpus in the federal courts at all levels. Twice he was denied certiorari by the Supreme Court of the United States.
He applied to the Ohio Pardon and Parole Commission for a recommendation of an unconditional pardon, which was denied.
His chief claim in all his habeas corpus efforts was that his indictment was insufficient, invalid and void ab initio, in that it did not charge an offense under Ohio law. It is his contention that the state and federal courts denied him release by habeas corpus without ruling on the question whether his indictment charged any crime.
After all his vain efforts to secure his release in habeas corpus, and in his appeals directly related thereto, this appellant was quick to grasp as a last straw the new Postconviction Determination of Constitutional Rights Act, Sections 2953.21 to 2953.24, inclusive, Revised Code, effective July 21, 1965.
On September 14, 1965, some 55 days after the Act became effective, he filed the petition, here on review, for postconviction relief. The sentencing Court of Common Pleas ignored his petition and overruled his motion to resolve the pending issue of the sufficiency or validity of his indictment.
This Court of Appeals refused a writ of mandamus to have the Common Pleas Court decide that issue. He was successful on appeal therefrom and obtained such a writ from the Supreme Court of Ohio. See State ex rel. Turpin v. Court of Common Pleas, 8 Ohio St.2d 1, 220 N.E.2d 670, decided October 5, 1966. This was less than 30 days before his final discharge from prison on November 2, 1966.
The Common Pleas Court did not act upon this mandate until September 18, 1967, at which time it made the following entry:
'* * * The court being fully advised in the premises finds that the above named defendant is not presently under sentence and therefore would not be entitled to the relief afforded by the Ohio Revised Code 2953.21 et seq.'
Two important substantive amendments have changed the law.
First, Section 2953.21, Revised Code, was amended, effective December 9, 1967. The section originally provided:
'A prisoner in custody under sentence and claiming a right to be released on the ground that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a verified petition at any time in the court which imposed sentence, stating the grounds relied upon, and asking the court to vacate or set aside the sentence.'
The section as amended now reads, in pertinent part:
'(A) Any person convicted of a criminal offense * * * for relief * * * judgment or sentence or to grant other appropriate relief. * * *'
Under such amendment, this petitioner need no longer be under sentence to be entitled to relief, and the relief afforded is not limited to custodial relief or the setting aside of the sentence.
We hold that this petitioner is, therefore, entitled under the petition filed to claim that his indictment is void ab initio.
Second, under an amendment of the Ohio Constittion, effective May 7, 1968, see City of Euclid v. Heaton, 15 Ohio St.2d 65, 238 N.E.2d 790, the Court of Appeals now has 'original jurisdiction' 'In any cause on review as may be necessary to its complete determination.' See Section 3(B)(1)(f), Article IV.
We hold that, by reason of the long habeas corpus history, this cause here on review is such that it is necessary to its complete determination for us to exercise the jurisdiction and determine whether the indictment was valid or invalid, or sufficient or insufficient, to charge an offense under Ohio law. Therefore, in the interest of finality and a complete determination, we do consider that issue.
The indictment reads, in pertinent part, as follows:
'SECOND COUNT
'And the jurors aforesaid, by their authority aforesaid, upon their oaths aforesaid, further find and present that William Foy Turpin, alias Bill Turpin, alias Turp, on or about the 14th day of May, in the year of our Lord one thousand nine hundred and fifty-five, at the County of Stark, aforesaid, did induce and procure one Vivian Lucas, a female person under the age of eighteen years, to wit: sixteen years of age, to enter a house of assignation and ill-fame for the purpose of prostitution.
'THIRD COUNT
'And the jurors aforesaid, by their authority aforesaid, upon their oaths aforesaid, further find and present that William Foy Turpin, alias Bill Turpin, alias Turp, on or about the 14th day of May, in the year of our Lord one thousand nine hundred and fifty-five, at the County of Stark, aforesaid, did harbor in a house of ill-fame for the purpose of prostitution therein, a female person, one Vivian Lucas, under eighteen years of age, to wit: sixteen years of age, contrary to the statute in such cause made and provided, and against the peace and dignity of the State of Ohio.' (Emphasis added.)
The indictment shows upon its face that it was laid under Section 2905.10, Revised Code, which provides as follows:
'No person shall induce, decoy, or procure a female person under eighteen years of age to have sexual intercourse with a person other than himself, or to enter a house of assignation or a house of ill fame for the...
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