Opinion
No. 38586
Decided May 6, 1964.
Habeas corpus — Relief denied, when — Claim one conviction void — Petitioner also being detined on prior conviction.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In 1956, the Grand Jury of Franklin County returned three separate indictments against petitioner, Kenneth H. Neal. Petitioner, thereupon, was sentenced to the penitentiary for a term of two to 22 years.
On July 13, 1961, petitioner was paroled. On October 2, 1961, the Grand Jury of Franklin County returned an indictment charging petitioner with three counts of burglary and five counts of forcing entry into a depository box. Petitioner entered a plea of guilty to the indictment and was sentenced thereon.
It is to this 1961 conviction that the present petition in habeas corpus is directed. Petitioner makes two contentions with respect to this conviction. First, that the assistant prosecuting attorney told him that if he would plead guilty he would see that petitioner would be sentenced on a lesser charge and would be sentenced on a one-to-two-year sentence. Respondent presented as a witness the prosecuting attorney who handled the case who denied that any such promise was made. The second contention of petitioner is that counsel was neither offered to nor appointed for him, and that he entered his plea of guilty without the benefit of counsel. There appears to be no question that this is a fact. Petitioner was neither offered counsel nor had counsel appointed for him.
Mr. Kenneth H. Neal, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Even if the 1961 conviction was void, petitioner is subject to then being detained on his 1956 conviction and would not be entitled to release. Page v. Green, Supt., 174 Ohio St. 178; and McConnaughy v. Doe, Supt., 174 Ohio St. 533.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.