Opinion
No. 85-1909
Decided July 9, 1986.
Postconviction relief — Right to counsel — Writ denied.
APPEAL from the Court of Appeals for Stark County.
Appellant, Homer C. Pierce, Jr., was convicted of aggravated murder in 1979, and given a life sentence. His conviction was affirmed on appeal. On June 26, 1985, appellant, acting on his own behalf, filed a petition for postconviction relief. In connection therewith, he requested appointment of counsel and a copy of the trial transcript.
On October 25, 1985, appellant filed the instant mandamus action below. Appellant sought an order compelling appointment of counsel and final disposition of the postconviction proceeding. Appellant alleges in his complaint that his postconviction proceeding included "* * * forty-nine (49) errors in the Relator's [appellant's] trial procedures it [ sic]is clearly beyond any reasonable doubt (and there are additional errors) that the Relator did not receive a fair and just trial * * *." The complaint did not disclose that any rulings had been made on appellant's two motions for summary judgment. Additionally, appellant relates that he filed "application forms" with the Ohio Public Defender's Office (preceding the mandamus action) concerning the appointment of counsel, which filing was prompted by efforts of the postconviction trial judge.
The court of appeals denied the writ and the cause is now before this court upon an appeal as of right.
Homer C. Pierce, Jr., pro se. Robert D. Horowitz, prosecuting attorney, and Alicia Wyler, for appellee.
Appellant claims the right to counsel in his postconviction proceedings. He also seeks an order compelling final disposition of such proceeding.
Appellant has not specified the nature of the errors recited in the postconviction petition. It is therefore not clear whether he asserted matters which would be outside the record of the underlying criminal proceeding so as to even necessitate an evidentiary hearing of the postconviction proceeding, much less entitle him to counsel in such proceeding. Cf. State v. Smith (1967), 12 Ohio St.2d 7 [41 O.O.2d 32]; and State v. Welch (1971), 28 Ohio St.2d 31 [57 O.O.2d 103].
State, ex rel. Lowe, v. Common Pleas Court (1977), 49 Ohio St.2d 168, 169 [3 O.O.3d 215], notes the absence of any "* * * precise time table for determinations or hearings" relative to postconviction proceedings under R.C. 2953.21. Lowe involved a one and one-half-month delay between the filing of the postconviction action and the filing of the mandamus action. In State, ex rel. Turpin, v. Court of Common Pleas (1966), 8 Ohio St.2d 1 [37 O.O.2d 40], however, a twelve-month delay was considered excessive. Here, as late as October 1985 — the month the mandamus action was filed — the appellee was still attempting to render some accommodation to appellant's request for counsel by contacting the Ohio Public Defender's Office. These circumstances do not support issuance of a writ of mandamus after a passage of four months from postconviction filing to mandamus filing in the court of appeals.
By reason of the foregoing, the judgment of the court of appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.