Opinion
No. 37036
Decided June 20, 1962.
Habeas corpus — Not available to review irregularities reviewable on appeal — Mistreatment before trial — Plea of guilty — Right to counsel — Witnesses.
IN HABEAS CORPUS.
On December 1, 1958, under the provisions of Section 2905.02, Revised Code, petitioner was indicted by the Grand Jury of Franklin County for rape of a female under 12 years of age, to wit, an eight-year-old girl, and, after having been referred for a psychiatric examination, pleaded guilty to the charge and was sentenced to the Ohio Penitentiary.
Petitioner testified that he was picked up while drunk, stripped and beaten by the police and forced into pleading guilty. This testimony refers of course to the time of his arrest, prior to his indictment. He testified further that there was no mistreatment after he was taken to the county jail. He appeared before the court without counsel when he entered his plea of guilty. However, he never requested that counsel be assigned to him. Furthermore, petitioner talked to his wife several times after his arrest and discussed with her the retention of counsel. He made no further attempt to procure an attorney.
Mr. Marvin Doughty, in propria persona. Mr. Mark McElroy, attorney general, Mr. Aubrey A. Wendt and Mr. John J. Connors, Jr., for respondent.
Petitioner urges as a ground for his release the alleged beating and other misconduct which took place after his arrest and prior to his indictment.
The grounds upon which release from custody in a habeas corpus proceeding may be had relate to jurisdiction. The Court of Common Pleas acquired jurisdiction of the offense by statute and over the person of the petitioner by the indictment. Even assuming that the facts are as petitioner claims, any irregularities which occurred prior to the indictment did not affect the jurisdiction of the Court of Common Pleas. 26 Ohio Jurisprudence (2d), 561, Habeas Corpus, Section 10.
Petitioner urges that his constitutional rights were infringed upon because he did not have the assistance of counsel. Petitioner never requested that counsel be appointed for him, and, furthermore, by his plea of guilty he waived his right to counsel.
In In re Burson, 152 Ohio St. 375, the third paragraph of the syllabus reads as follows:
"A plea of guilty to an indictment raises a presumption of waiver of the right to have counsel appointed to aid the person charged in the indictment, unless there are circumstances which rebut and nullify such presumption. Such waiver may be express, providing it is intelligently and understandingly given, or may be implied."
The petitioner contends further that there was a forced confession in this case, and that he was compelled to be a witness against himself. He is undoubtedly referring to a confession which he contends he made to the police. Assuming such confession was made, it did not enter into petitioner's case. No evidence was introduced by reason of the fact that petitioner pleaded guilty to the charge. It must be remembered that there was no trial but merely a plea of guilty. The indictment charged that petitioner "did carnally know, forcibly and against her will * * * a female person under 12 years of age, to wit, eight years of age." The truth of these material allegations in the indictment was admitted by the entering of the plea of guilty. McConnaughy v. Alvis, Warden, 165 Ohio St. 102.
This was a judicial confession made in the presence of the court on a plea of guilty — not one attempted to be admitted in evidence in the course of a trial.
The final questions raised by petitioner relate to the right to a trial by jury, the right to obtain witnesses in his own behalf and the right to meet his accusers face to face. All the objections raised here relate to petitioner's rights in an actual trial of his case. By his plea of guilty he waived a right to a trial and other rights attendant thereto to object to any defects which might have been raised by a motion to quash. Carper v. State, 27 Ohio St. 572; Craig v. State, 49 Ohio St. 415; and State v. Sheridan, 109 Ohio App. 482.
The petitioner has made no showing that he was deprived of any constitutional rights, or that there was any lack of jurisdiction in the court either over his person or over the subject matter.
Petitioner remanded to custody.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL and O'NEILL, JJ., concur.
HERBERT, J., not participating.