Opinion
No. 75-684
Decided February 18, 1976.
Habeas corpus — Trial of accused — Denial of motion for discharge under R.C. 2945.73 — Relief not available, when — Adequate remedy of appeal.
APPEAL from the Court of Appeals for Muskingum County.
On December 20, 1974, petitioner-appellant, Sherril Edward Singer, was arrested and jailed on felony charges. An arrest warrant was filed in the Zanesville Municipal Court on December 23, 1974. On December 27, 1974, a preliminary hearing was held in the Municipal Court. Mr. John E. Palcich entered an appearance as appellant's retained counsel at the preliminary hearing, and appellant was bound over to the Muskingum County grand jury. The grand jury returned an indictment on January 6, 1975, charging appellant with five counts: one count of aggravated robbery, two counts of felonious assault, one count of carrying a weapon while under a disability and one count of carrying a concealed weapon, a misdemeanor.
On January 10, 1975, the Court of Common Pleas of Muskingum County held arraignment for those indicted. Appellant was present but his counsel was not. The Clerk of Courts had failed to notify Mr. Palcich of the indictment and scheduled arraignment, his name not appearing as the attorney of record in the Court of Common Pleas. Inquiry by the court indicated that appellant had attempted to inform counsel by letter two days prior to the scheduled arraignment. Appellant was excused from the arraignment and no formal plea was entered.
On January 15, 1975, appellant's counsel was notified of a pre-trial hearing which was held on January 27, 1975, but no formal plea was entered. Subsequently, on January 29, 1975, written pleas of not guilty and not guilty by reason of insanity were filed without formal objection.
On March 24, 1975, the appellant filed a motion for discharge in the Court of Common Pleas, pursuant to R.C. 2945.73, because the appellant had been continually confined in jail since December 20, 1974, in lieu of bail, and not brought to trial within 90 days. The motion was denied on March 26, 1975, and the cause assigned for trial on April 1, 1975.
On April 1, 1975, the motion was renewed and again denied, but, rather than proceeding to trial, it was agreed that if the appellant should perfect his appeal of the denial of the motion to the Court of Appeals, then the time necessary for processing the appeal would not be counted under R.C. 2945.71.
On May 2, 1975, the Court of Appeals dismissed the appeal for want of a final appealable order, remanding the cause to the Court of Common Pleas for further proceedings.
On May 5, 1975, appellant filed an original petition for a writ of habeas corpus in the Court of Appeals.
Thereafter, on May 9, 1975, the trial on the indictment began, at which time a jury was impaneled which subsequently returned a verdict of guilty on all five counts.
The Court of Appeals denied the writ on May 28, 1975, and motions for reconsideration and new trial were overruled.
The cause is now before this court pursuant to an appeal as of right from the denial of appellant's petition for a writ of habeas corpus.
Messrs. Schwartz, Fisher, Spater, McNamara Marshall, Mr. Leonard J. Schwartz and Mr. Thomas R. McGuire, for appellant.
Mr. Richard E. Bridwell, prosecuting attorney, Mr. Joseph A. Gormley and Mr. Warren B. Richardson, for appellees.
Prior to a decision on the merits of this appeal of the denial of appellant's petition for a writ of habeas corpus, this court must determine whether habeas corpus is the proper remedy to test appellant's allegation that he was not tried within the period mandated by R.C. 2945.71.
The record indicates that the appellant properly challenged the length of his incarceration, in lieu of bail, by way of motion pursuant to R.C. 2945.73. It is from the denial of the motion for discharge that appellant brought this original action seeking a writ of habeas corpus.
This situation has been before this court previously, and we have held, in paragraph two of the syllabus in In re Knight (1944), 144 Ohio St. 257, that:
"So long as an order of a trial court overruling defendant's motion for his discharge upon the failure of the state to cause him to be tried within the time limited by Section 13447-1, General Code [now R.C. 2945.71], remains unreversed, such order is a valid and legal authority to the sheriff for retaining the prisoner in custody and such order cannot be reviewed or reversed or the prisoner discharged by a proceeding in habeas corpus before another tribunal. ( Ex Parte McGehan, 22 Ohio St. 442 approved and followed.)"
The rationale behind this decision was stated in McGehan to lie in the fact that a court may not in an ex parte proceeding review and reverse the judgment of another court. The statutes involved in McGehan operated to discharge the defendant from prosecution and, in effect, to acquit the defendant, putting an end to all proceedings. The court stated that the effect of granting a writ of habeas corpus would be to render final judgment while the cause was still pending in the court below. Likewise, this court, in Knight, at page 264, stated that habeas corpus was not a proper remedy to test the validity of the denial of a motion for discharge, the remedy being by way of appeal.
The recent decision of this court, in State, ex rel. Racine, v. Dull (1975), 44 Ohio St.2d 72, supports this principle. In Racine, supra, we affirmed a Court of Appeals' decision granting a motion to dismiss relator's complaint in mandamus seeking that the trial court discharge him pursuant to R.C. 2945.71 et seq. We held that the relator had an adequate remedy by way of appeal, citing State, ex rel. Woodbury, v. Spitler (1974), 40 Ohio St.2d 1, 3, followed in State, ex rel. Wentz, v. Correll (1975), 41 Ohio St.2d 101, for the proposition that:
"* * * Where an action is pending and undetermined in a lower court of competent jurisdiction, and where there is otherwise an adequate remedy by way of appeal, this court has no authority to determine what judgment should be rendered by the lower court."
In the instant case, appellant has an adequate remedy by way of appeal. Additionally, delay in the preliminary hearing or of the trial itself cannot ordinarily be urged as a ground for relief in habeas corpus after the accused has pleaded guilty or been convicted of the crime charged, since the delay no longer exists. Mack v. Maxwell (1963), 174 Ohio St. 275.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
O'NEILL, C.J., CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
HERBERT, J., concurs in the judgment.