
    The State of Ohio v. Carter.
    (No. 27898
    Decided September 10, 1973.)
    Common Pleas Court of Montgomery County.
    
      Mr. Randall A. Anderson, assistant prosecuting attorney, for plaintiff.
    
      Mr. James L. Machín, for defendant-petitioner.
   Rige, J.

The defendant-petitioner, Lewis Carter, has filed a petition for postconviction relief, pursuant to Revised Code Section 2953.21 et seq., setting forth as his sole contention the allegation that, because of the inadequacy of trial counsel, he was deprived of his Sixth Amendment right to counsel guaranteed him by the federal Constitution and made applicable to the states through the Fourteenth Amendment.

The defendant was convicted by a jury of one count of armed robbery and was sentenced to a term of not less than ten nor more than twenty-five years in the Ohio State Penitentiary.

Named in the defendant-petitioner’s petition for post-conviction relief were the state of Ohio and Harold J. Cardwell, then Warden of the Ohio State Penitentiary. Both of these parties (styled defendants in the petition for postconviction relief) have filed separate motions to dismiss. The court’s rulings thereon, and the reasons for said rulings, follow:

A. The motion of the defendant, Harold J. Cardwell, Warden of the Ohio Penitentiary, seeking an order of the court dismissing him as a party defendant for the reason that he is not a proper party to the captioned cause is, in the court’s opinion, WELL TAKEN and the court does, therefore, SUSTAIN same in its entirety. Harold J. Card-well is, thus, dismissed as a party to this petition for post-conviction relief. In a postconviction action, the court concludes that the only proper parties are those who were parties to the judgment and conviction itself.

B. The motion of the state of Ohio seeking an order of the court dismissing the petition for postconviction relief upon the grounds that the sole issue raised in said petition (inadequacy of counsel) could have been raised by the defendant-petitioner at trial or on appeal from the judgment of conviction and is, therefore, res judicata, pursuant to the decision of the Ohio Supreme Court in State v. Perry (1967), 10 Ohio St. 2d 175, is, in the court’s opinion, NOT WELL TAKEN and the court does, therefore, OVERRULE same in its entirety. In so ruling, the court makes the following, non-exclusive, observations:

1. The case of State v. Perry, supra, is the authoritative Ohio Supreme Court decision dealing with the question of what can and cannot be raised in a postconviction petition filed pursuant to Revised Code Section 2953.21 et seq. That case states, in pertinent part, as follows:

“Constitutional issues cannot be considered in post-conviction proceedings under Section 2953.21 et seq., where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct appeal from that judgment and thus have been adjudicated against him. ’ ’ (Paragraph 7 of the syllabus.)
“Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who is represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” (Paragraph 9 of the syllabus, emphasis added by the Ohio Supreme Court.)

2. Following his conviction, the defendant retained new counsel for the purposes of appeal; trial counsel not participating in any stage subsequent to the defendant-petitioner’s sentencing.

3. The defendant-petitioner did attempt to raise the issue of inadequacy of counsel — for the first time — in the Court of Appeals. That court dismissed the defendant-petitioner’s contention as to this issue in the following language :

“This question (inadequacy of counsel) was not raised in the trial court by motion for a new trial or otherwise and cannot be raised in this court for the first time. There is no merit in the second assignment of error.”

Thus, the defendant-petitioner did attempt to raise this issue at the appellate level but was prevented from doing so by virtue of the fact that he had not raised it initially in the trial court, either by motion for new trial or otherwise.

4. Since it is clear from the record that the issue of inadequacy of counsel was not raised in the trial court and, thus, according to the appellate court, could not be raised on appeal, it remains to be seen whether or not this is an issue which could have been raised at the trial court level.

5. The court concludes that the issue of inadequacy of counsel, in the context of this case, is not an issue which could have been raised at any stage of the trial court proceedings.

One can imagine the impossibility or difficulty (as a practical matter) of a defendant, on trial, accusing — by himself — his retained trial counsel of incompetency or inadequacy of representation. The court stresses the fact that for this issue to be raised at any stage of the trial proceedings, the defendant would have to raise the issue himself. Certainly, his retained counsel could not logically be expected to urge the argument of his own inadequacy or incompetency upon the trial court. One cannot realistically expect trial counsel to argue the issue and, likewise, one cannot logically expect the defendant, himself, to take over the proceedings from his attorney so as to argue the issue on his own.

6. This court concludes that the appellate court did not decide the issue of inadequacy of counsel on its merits but rather dismissed it for the technical reason that said issue had not been raised in the trial court. This court further concludes that the issue of inadequacy of counsel is one which could not have been raised in the trial court, at any stage of the proceedings. Therefore, this court concludes that this issue (inadequacy of counsel) is not res judicata —has not been adjudicated against the defendant — within the meaning of State v. Perry, supra, so as to preclude the defendant-petitioner from raising this issue (and having a hearing thereon) in a petition for postconvietion relief filed under Bevised Code Section 2953.21 et seq.

7. This court further concludes that the petition for post-conviction relief alleges facts which, if proved, would entitle the petitioner to relief and that the state of the file does not? in and of itself? affirm or rebut the petitioner’s alie-gations and that, therefore, an evidentiary hearing will be necessary npon the merits of the petitioner’s contentions.

This decision should not be cited as authority for the proposition that the allegation of the inadequacy of counsel can always be raised in a petition for postconviction, relief under Revised Code Section 2953.21 et seq. This decision must be strictly limited to its facts, to-wit: To situations in which the Court of Appeals, on direct appeal of the case, declines to consider the merits of the allegation of inadequacy of counsel for the reason that same had not been raised at any stage of the trial court proceedings. Of course, had the Court of Appeals considered this issue on its merits, and ruled adversely to the defendant, the issue would have been adjudicated against him and such an allegation in a postconviction petition would have been improper since it would have been res judicata pursuant to the State v. Perry decision. Of course, had the appellate court considered the issue on its merits and ruled in favor of the defendant-petitioner, a new trial would have been granted and this petition for postconviction relief never filed.

Wherefore, the court, having overruled the motion of the state of Ohio to dismiss the defendant-petitioner’s petition for postconviction relief, orders the defendant to be returned, from the institution in which he is now incarcerated, to the Montgomery County Jail, not later than one week prior to the hearing on the merits of his petition for postconviction relief which will take place at 4:00 P. M. on Monday, October 1, 1973.  