Opinion
No. 74-374
Decided April 23, 1975.
Criminal law — Armed robbery — Change of "not guilty" to "guilty" plea on advice of counsel — Petition for post-conviction relief — R.C. 2953.21 — Petitioner entitled to evidentiary hearing, when.
APPEAL from the Court of Appeals for Columbiana County.
Defendant was charged with armed robbery and assault with a dangerous weapon. He retained counsel, and pleaded not guilty at his arraignment.
Appearing later in open court, with retained counsel, defendant signed a "change of plea," withdrawing his not guilty plea and entering a plea of guilty. He was sentenced to the penitentiary for 10 to 25 years for armed robbery, and 1 to 5 years on each of the two assault charges, the sentences to run concurrently.
"I, James Richard Mishelek * * * hereby voluntarily retract and withdraw my plea of not guilty to the charge in the indictment, entered herein on a former day of this court, and having been fully informed as to the charge contained in the indictment, and the penalty therefor provided by law, and fully understanding my constitutional rights, do enter a plea of guilty of armed robbery and assault with a dangerous weapon (2 counts) as charged in the indictment.
"I further certify that no promises of leniency, or probation, or threats of any kind have been made to me by my counsel, or by any members of the prosecutor's staff, and that my action today is entirely voluntary on my part."
Subsequently, defendant, while not represented by counsel, filed a petition for postconviction relief in the Court of Common Pleas of Columbiana County, alleging that his change of plea to guilty was induced by his counsel's promise that a plea bargain had been made pursuant to which he would receive probation and that other charges against him would not be pressed.
The Court of Common Pleas dismissed the petition, without an evidentiary hearing.
The Court of Appeals, finding "that this case was decided on the files and records pertaining to the proceedings against defendant," affirmed.
The cause is now before this court on defendant's motion for leave to appeal and as an appeal as of right.
Mr. Joseph J. Baronzzi, prosecuting attorney, for appellee.
Mr. James Richard Mishelek, in propria persona.
This court recently held in State v. Milanovich (1975), 42 Ohio St.2d 46, that "where a claim raised by a petition for postconviction relief under R.C. 2953.21 is sufficient on its face to raise an issue that petitioner's conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief," and is sufficient to warrant an evidentiary hearing.
However, as this court pointed out in Milanovich, at page 50, "this does not necessarily require that an evidentiary hearing be held for every petitioner who relies upon matters outside the record, since evidence of such matters may be introduced by motion for summary judgment by either the petitioner or the prosecuting attorney."
Therefore, on authority of, and for the reasons stated in, State v. Milanovich, the motion for leave to appeal is allowed, and the judgment of the Court of Appeals is reversed, and, in accordance with Milanovich, the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
O'NEILL, C.J., CORRIGAN, STERN and W. BROWN, JJ., concur.
HERBERT, CELEBREZZE and P. BROWN, JJ., dissent.
No decision of the United States Supreme Court yet requires us to hold as we did in Milanovich and as the majority does in the case at bar. Milanovich involved counsel appointed and paid by the state. The instant case concerns counsel retained and paid by the accused. I do not believe that the fair and orderly administration of criminal justice will be served by reaching the same result in both of these cases.
P. BROWN, J., concurs in the foregoing dissenting opinion.