Opinion
No. 39596
Decided December 15, 1965.
Criminal procedure — Claim accused not advised of right to state-appointed counsel — Burden of proof — Claim not supported by evidence — Habeas corpus.
APPEAL from the Court of Appeals for Richland County.
This is an appeal from a judgment in an action in habeas corpus originating in the Court of Appeals. That court granted petitioner his release from custody. The basic facts are that appellee, Carl Edward Halleck, was indicted by the Grand Jury of Lawrence County on January 12, 1959, on three counts, assault with intent to kill, unlawful assault with intent to rob, and attempt to rob and kill. On January 16, 1959, appellee pleaded guilty to the first and third counts and was sentenced to the Ohio State Reformatory.
It was appellee's position that, in the trial court, he was not aware of his right to state-appointed counsel, was not informed of this right, and did not waive counsel.
To controvert appellee's argument, appellant introduced into evidence the journal entry of the trial court and an affidavit of the trial judge.
The journal entry reads in part as follows:
"* * * Carl Edward Halleck, being brought into court in custody of the sheriff for arraignment, was inquired of whether he wished to be represented by counsel, and the defendant stating that he did not desire to be represented by counsel, and the court having explained the nature of the charges and having read the indictment to the defendant, defendant was thereupon arraigned, and for plea to the indictment saith that he is guilty as charged."
The pertinent part of the affidavit reads as follows:
"Affiant says that he has no recollection of the actual arraignment and plea of said defendant, but that it is the rule and undeviating practice in the Court of Common Pleas of Lawrence County, Ohio, to explain to a defendant his rights, read his indictment, and inquire if he desires counsel to represent him, and affiant has no reason to believe that this procedure was not followed in this case, and the journal entry signed by affiant recites that this was done in the case of State of Ohio v. Carl Edward Halleck."
The Court of Appeals found that petitioner was not sufficiently informed of his constitutional rights and ordered that petitioner be released from custody.
Mr. Carl Edward Halleck, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. Leo J. Conway, for appellant.
In an action in habeas corpus, the burden of proof is upon the petitioner to establish his right to release. Yarbrough v. Maxwell, Warden, 174 Ohio St. 287.
The only evidence before the Court of Appeals to support his contention was the uncorroborated statement of the appellee that the court had failed to inform him of his right to counsel. On the other hand, the journal entry recited that petitioner had been informed of his rights and waived them, and the trial judge, in an affidavit, stated that it was the rule and undeviating practice in that court to explain an accused's rights to him.
In the instant case, the court was not confronted with a silent record which would warrant a court, in the absence of evidence to the contrary, to conclude that a prisoner was entitled to release on the petitioner's uncorroborated statement that the court failed to inform him of his right to counsel. Here the court's journal supported by the affidavit of the trial judge, completeley refuted such contention.
In view of the court's decision in Fair v. Maxwell, Warden, 2 Ohio St.2d 151, and Madison v. Maxwell, Warden, 177 Ohio St. 84, it would appear that appellee failed to sustain the burden of proof.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.