Summary
In State v. Hall (1968), 14 Ohio St.2d 266, this court, following State v. Perry (1967), 10 Ohio St.2d 175, held that where the record shows that a prisoner was not represented by counsel when he pleaded guilty and the record does not contain sufficient evidence to justify the conclusion that the defendant knowingly and intelligently waived his constitutional right to counsel, the trial court in postconviction proceedings should appoint counsel so that there may be a judicial determination while he is represented by counsel on the issue of whether he knowingly and intelligently waived his right to counsel.
Summary of this case from State v. WelchOpinion
No. 41309
Decided June 12, 1968.
Criminal procedure — Plea of guilty — No hearing held — Right to representation by counsel — Waiver — Postconviction remedy — Appeal.
APPEAL from the Court of Appeals for Scioto County.
This cause is here upon appeal from the dismissal of appellant's petition for postconviction relief under Section 2953.21 et seq., Revised Code. Appellant, on June 18, 1962, entered a plea of guilty to a charge of carnal knowledge of a female under the age of sixteen years with her consent. Appellant alleges that he was never advised of his right to court-appointed counsel. He alleges further that although he signed a waiver of his right to be represented by counsel and to prosecution by indictment, such waiver was not voluntarily and intelligently made since he thought he was being charged with a misdemeanor and he did not know he was signing a waiver of counsel.
Mr. Everett Burton, prosecuting attorney, for appellee.
Mr. Arley Hall, Jr., in propria persona.
The record in this case discloses that no hearing was held in either the Court of Common Pleas or in the Court of Appeals and that appellant was not represented by counsel in either proceeding.
The proper procedure in such a case is outlined in footnote 2 on page 180 in the opinion of State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, where it is stated:
"In any instance where it is alleged, and the record discloses, that a prisoner was not represented by counsel when he pleaded guilty or at the time of his trial or on a direct appeal from a judgment of conviction, the record may frequently contain insufficient evidence to justify the conclusion that the prisoner knowingly and intelligently waived his constitutional right to counsel. In such an instance, the trial court in postconviction proceedings should always appoint counsel to represent the prisoner so that there may be a judicial determination, while the prisoner is represented by counsel, on the question whether the prisoner knowingly and intelligently waived his constitutional right to counsel when he pleaded guilty or went to trial without counsel or at the time when he did appeal or could have appealed from his judgment of conviction. See State v. Catlino, 10 Ohio St.2d 183. "
See also Jones v. State, 8 Ohio St.2d 21.
For the foregoing reasons, the motion to certify is allowed, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.