In Sopko v. Maxwell, supra, the court easily answered all the allegations of incompetence, none of which, incidentally, was of the magnitude of the error in the case at bar.Summary of this case from State v. Cutcher
Decided July 14, 1965.
Habeas corpus — Legality of arrest without warrant — Validity of affidavit — Competency of counsel — Continuance.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. On March 12, 1964, the Grand Jury of Lucas County returned an indictment charging petitioner, James Robert Sopko, with one count of armed robbery and one count of assault with intent to rob. Petitioner was found guilty by a jury on both counts and was sentenced to the Ohio Penitentiary.
Mr. James Robert Sopko, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
In this action, petitioner alleges that he is illegally detained because he was arrested without a warrant and without probable cause, that he was charged by a fraudulent affidavit, and that he was represented by incompetent counsel. Petitioner was represented at his preliminary hearing, arraignment and trial by counsel originally retained by him. During the proceedings, petitioner dismissed this counsel. However, inasmuch as petitioner was without funds, the court appointed the same attorney to represent him.
Even if an arrest is illegal, it does not affect the validity of a subsequent criminal proceeding based on a valid indictment. Frisbie, Warden, v. Collins (1952), 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509; Ker v. Illinois (1886), 119 U.S. 436, 30 L. Ed. 421, 7 S. Ct. 225; Caldwell v. Haskins, Supt., 176 Ohio St. 261; and Henderson v. Maxwell, Warden, 176 Ohio St. 187.
Petitioner urges that the officer executing the affidavit did not see the crime committed, and that, therefore, it was fraudulent. It is not necessary that the affidavit be executed by one who observed the commission of the offense. It is sufficient if such person has reasonable grounds to believe that the accused has committed the crime.
Finally, petitioner urges that his counsel was incompetent. He bases this on the fact that the attorney waived the preliminary hearing, failed to determine that the affidavit was fraudulent and failed to move for discharge under the provisions of Section 2937.21, Revised Code. These arguments are without merit. As shown above, the affidavit was valid, and waiver of preliminary hearing did not prejudice petitioner. Concerning petitioner's contention that the attorney was incompetent for failure to move for discharge under Section 2937.21, Revised Code, this section relates only to continuances after the case has actually been set for trial. There was no continuance after petitioner's trial was set.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.