Opinion
No. 38894
Decided October 14, 1964.
Habeas corpus — Plea of guilty and sentence — Arrest without warrant — Evidence obtained by search without warrant — Two offenses charged from single transaction — Double jeopardy — Competency of counsel.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In 1962, petitioner, Hubbard Poe, was indicted by the Grand Jury of Cuyahoga County on two counts, one count of unlawful possession of a narcotic (Section 3719.09, Revised Code) and one count of knowingly keeping and/or dispensing of a narcotic drug (Section 3719.101, Revised Code). Counsel was appointed to represent him, and he entered a plea of guilty to both counts. No appeal was prosecuted by petitioner.
The facts developed at petitioner's hearing are as follows:
Shortly after midnight on September 21, 1962, petitioner was sitting in his parked automobile on 101st Street in the city of Cleveland. There were marijuana cigarettes lying on the seat beside him. A policeman, being suspicious of what he was doing, turned a flashlight into the automobile, saw the narcotics and arrested petitioner. Petitioner admits that the officer had probable cause for the arrest. The arresting officer then searched petitioner's automobile. Petitioner was taken to the police station, and his automobile was impounded. During his interrogation, petitioner told the officers that they had failed to find some of the marijuana in the automobile and told them where it could be found. An indictment was returned charging petitioner as stated above, and petitioner pleaded guilty.
Mr. Hubbard Poe, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
First, petitioner urges that his conviction was invalid because no warrant for his arrest was issued. However, petitioner does not question the validity of the arrest and admits that the officer had probable cause to make the arrest. Therefore, no warrant was necessary.
Next, petitioner claims that his conviction was the result of illegally obtained evidence, in that no search warrant was ever issued. Petitioner in the instant case pleaded guilty. Thus, there was no trial and no evidence was introduced. Even if the state had illegally obtained evidence in its possession, where such evidence is not used, the mere possession thereof by the state does not invalidate the conviction. Villasino v. Maxwell, Warden, 174 Ohio St. 483; Churchill v. Haskins, Supt., 176 Ohio St. 183.
Petitioner contends also that his rights were violated because he was charged with two offenses arising out of a single transaction, and that the prosecuting attorney should have been required to elect as to which of the two offenses he would prosecute. Petitioner in essence in this argument is charging double jeopardy. This is a matter of defense which must be raised in the first instance in the trial court and by appeal; it does not constitute a ground for release by habeas corpus. Vertz v. Sacks, Warden, 173 Ohio St. 459; Maloney v. Maxwell, Warden, 174 Ohio St. 84.
Finally, petitioner urges that he had inadequate and incompetent counsel. Such questions are not cognizable in habeas corpus but can be raised only by appeal. Rodriguez v. Sacks, Warden, 173 Ohio St. 456.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.