
    The State of Ohio v. Shelton.
    (No. 26027
    Decided March 27, 1968.)
    Common Pleas Court of Montgomery County.
    Prosecuting attorney, for plaintiff.
    
      Mr. Robert James Shelton, in propria persona.
    
   BbeNtoN, J.

The defendant, Robert James Shelton, caused to be filed herein on March 25, 1968, his verified petition for vacation of the sentence imposed upon him in this cause.

The court will be guided by the provisions of Sections 2953.21 to 2953.24, inclusive, Revised Code, as amended and effective December 9, 1967.

The grounds for relief relied upon as delineated in the petitioner’s petition are:

1, That his constitutional rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution have been violated.

2. That he was deprived of a speedy trial.

3. Interrogation without being informed of his constitutional rights, and without the presence of counsel.

4. That he signed a confession without counsel and under threat of cruel and unusual punishment.

FINDINGS on Fact

The court has examined all the files and records pertaining to the proceedings against the petitioner, together with the official court reporter’s certified transcript of all proceedings in open court. The relevant and material facts are thereby ascertained to be as follows:

1. By affidavit, executed and filed March 8, 1966, in the Dayton Municipal Court petitioner was charged with auto theft.

2. A warrant for petitioner’s arrest was executed on March 8, 1966, filed and returned in the Dayton Municipal Court on March 9, 1966, with the petitioner in custody.

3. On March 9, 1966, petitioner was taken before Dayton Municipal Court and arraigned in open court upon the affidavit filed against him where he waived preliminary hearing and thereupon was remanded to the custody of the sheriff of Montgomery County, Ohio, to await action of the grand jury under bond of $2,000.00.

4. On March 17, 1966, an information was filed in this cause charging petitioner with auto theft and on the same said date warrant to arrest petitioner on said charge was issued to the sheriff of Montgomery County, Ohio, and on the same said date petitioner was thereby arrested and said warrant was returned and filed herein on the same said date.

5. On March 18, 1966, petitioner appeared in this court with his own counsel, Mr. Paul Rion of the Dayton and Ohio Bar and upon being arraigned on the information petitioner consented to proceed on information and executed in writing a waiver of the indictment and also a waiver of one day service of a copy of the information, and thereafter, petitioner, through his attorney stated to the court “This is his first auto theft,” and the court asked petitioner “This is at least your third offense?” The petitioner answered “Yes, sir.”

6. On the same said date the court sentenced petitioner, and it is from this sentence that petitioner seeks relief.

Without a hearing, and for the purpose of this decision and order, the court will assume that the facts set forth in petitioner’s petition, unsupported by any affidavits, may not be controverted; they are as follows:

1. That there were more charges than auto theft at the time of the arrest for auto theft.

2. That the arresting officer knew of these charges and used them to get petitioner to sign a confession of auto theft.

3. That petitioner was unaware of what was taking place when he signed a confession and pleaded guilty to auto theft and went to court under a bill of information, that it was impossible for petitioner to know what was taking place in this case without counsel to advise him of his rights.

4. That petitioner was scared of the arresting officer, having been beaten by such officer on January 8, 1963.

5. That the arresting officer had arrested petitioner for carrying concealed weapon, rape and abduction against his ex-wife and that said officer knew the petitioner was a parole violator and used these threats against him, telling petitioner that if he would plead guilty to auto theft the other charges would be dropped.

6. That petitioner was never told at any time of his rights by the arresting officer.

CoNCi/usiorrs op Law

Petitioner’s complaint that he was not provided with Counsel at every stage of the proceedings suggests an inquiry as to when this must or should be done. Many eases on the subject indicate that consistent with the due process clause of the Fourteenth Amendment right to counsel is guaranteed at any stage of the proceedings whereby the inherent rights of an accused to fair procedure are violated. Gideon v. Wainwright, 372 U. S. 335; Escobedo v. Illinois, 378 U. S. 478; Miranda v. Arizona, 384 U. S. 436.

Upon full consideration of everything before the court, there is no showing that absence of counsel up to arraignment in any way constituted a constitutional violation of any of petitioner’s substantive rights. In this connection the transcript of the proceedings in open court contained this significant statement of Mr. Eion, attorney for petitioner, to wit:

“I have explained to the defendant his right to have this matter submitted to the Grand Jury, his right to have a jury trial and his constitutional privileges and rights; he is familiar with the procedure which is conducted and his request is I ask an information be signed; he is in open court and willing to sign it, do you understand it Mr. Shelton?
“Mr. Shelton: Yes, I do.”

In effect, petitioner seems to complain that his plea was negotiated and in this connection the courts have uniformly followed the basic principle which must rule this case, as laid down in Kercheval v. U. S., 274 U. S. 220, which is:

“A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound.”

Thus it certainly appears that petitioner’s petition does not involve any question of guilt or innocence, the question presented has to do with whether the plea of guilty has been unfairly obtained or given through ignorance, fear or inadvertence. Further, it has been definitely and repeatedly held while a court may not accept a plea of guilt without first determining that the plea has been made voluntarily, with understanding of the nature of the charge, it is precisely and uniformly held that no particular form or ritual must be followed in making this determination.

This court adheres to the principle that a plea of guilty is not a confession, it is a conviction; therefore, it will not be regarded and dealt with in accordance with the rules governing confessions.

Petitioner was represented by Mr. Paul Rion, retained counsel, who appeared in court with the petitioner upon being arraigned on the information. Mr. Rion is recognized as being a very able and professionally responsible attorney of the Dayton Bar.

Mistakes of counsel will not amount to a denial of due process unless on the whole the representation is of such low caliber as to be equivalent to no representation at all, and to reduce the proceedings to a farce or a sham. People v. Heirens, 4 Ill. 2d 131, 122 N. E. 2d 231.

In light of the transcript of the proceedings in open court, and now reviewed, it is clearly apparent that the guilty plea of petitioner was voluntary and that it was knowingly made in light of all the consequences thereof. In the absence of proof that it was not voluntary, the mere fact that there were discussions with the arresting officer concerning the waiving of other charges cannot prevent the plea from being voluntary. Shelton v. United States (5th Cir. 1957), 246 F. 2d 571.

The court, in consideration of the petition, all files and records pertaining to the proceedings against the petitioner, including the information, the court’s journal entries, the journalized records of the clerk of court, the court reporter’s transcript, and all else lawfully relevant and material, determines there are no substantive grounds for relief.

Upon the findings of fact and conclusions of law here-inabove set forth there is no preponderant showing there was such a denial or infringement of petitioner’s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States.

Wherefore petitioner’s petition is dismissed and the relief prayed for is denied.  