
    Conlan v. Haskins, Supt., London Correctional Institution.
    (No. 38943
    Decided November 25, 1964.)
    
      Mr. James V. Conlan, in propria persona.
    
    
      Mr. William B. Saccbe, attorney general, and Mr. William C. Baird, for respondent.
   Per Curiam.

Petitioner bases his right to release on the alleged facts that he was not informed of his right to counsel, was not furnished counsel, and did not intelligently waive counsel.

Petitioner testified that, during a recess in the trial of Dr. Samuel Sheppard and while the courtroom was full of people and there was a great deal of commotion, he and several other defendants were taken before the judge for arraignment, and that as each of their names was called each defendant stepped forward and was asked to plead without any explanation of his rights or offer of counsel. Petitioner pleaded guilty.

The state offered no evidence other than cross-examination of petitioner as to his prior record, which showed one felony conviction, and the court’s journal, which recited that petitioner was informed of his constitutional rights. The journal does not specify the constitutional rights about which he was informed, but they would clearly include rights arising both under those provisions of the Constitution of Ohio and the statutes enacted to implement them which provide for appointment of counsel for an indigent accused.

The court does not reach that conclusion by making a presumption from “a silent record,” as was found to be “impermissible” in Carnley v. Cochran, Dir. (1962), 369 U. S., 506. The record in this case is not silent and must necessarily be considered in the light of the Constitution and statutes of Ohio. When so considered it merely omits to state in detail that which the Constitution and statutes of Ohio require a trial judge to do as a matter of law.

Since 1851, Section 10 of Article I of the Ohio Constitution has provided:

“* * * In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel # * # 91

Prior to that, a similar provision was found in Section 11 of Article VIII of the Constitution of 1802.

Since as early as 1816 (14 Ohio Laws, 380, 384), the statutes of Ohio have required the appointment of counsel for an indigent accused. The present statute, Section 2941.50, Revised Code, has provided, in part, since its recodification in 1953:

“After a copy of an indictment has been served or opportunity had for receiving it the accused shall be brought into court, and if he is without and unable to employ counsel, the court shall assign him counsel, not exceeding two, who shall have access to such accused at all reasonable hours. # * *”

An indigent accused in Ohio learns of his right to counsel because of the uniform performance by trial judges of the duty placed on them by this statute.

As early as 1929 (113 Ohio Laws, 123,145), the statutes of Ohio also required that an accused be informed of his right to counsel even prior to being bound over to the grand jury. Present Section 2937.02, Revised Code, requires that an accused shall be instructed of such right at the time he is first taken before a magistrate. Section 2937.02 now provides:

“When, after arrest, the accused is taken before a court or magistrate, or when the accused appears pursuant to terms of summons or notice, the affidavit or complaint being first filed, the court or magistrate shall, before proceeding further:
ÍÍ # * *
“(B) Inform the accused of his right to have counsel and the right to a continuance in the proceedings to secure counsel

Thus, for almost 150 years, trial-court judges in Ohio have been under a frequently augmented duty to inform an accused of his rights under the Constitution of Ohio and under the statutes of Ohio, including his right to have counsel without cost to him if he is indigent. So zealous have trial judges been in protecting an indigent accused’s right to counsel that counsel is usually appointed on the accused’s mere statement of indigence without any investigation to determine whether he is indigent as a matter of fact. The uniform compliance of Ohio trial courts with these duties imposed upon them by our Ohio Constitution and statutes is so well known that it is a fact of which judicial notice may be taken. Prior to 1963, there was only one case before this court in which it was contended that a trial court had not fully complied with these statutory duties. See In re Burson (1949), 152 Ohio St., 375, certiorari denied, 339 U. S., 969.

The fact that the record does not specify the “constitutional rights” about which petitioner was informed does not give rise to a presumption that the court did not comply with all the duties specifically imposed upon it by our Constitution and statutes. To so hold would be to presume judicial error. Kegardless of the conclusion which should be reached in states which do not have statutes and constitutional provisions similar to ours, much more than an unsupported allegation by a petitioner should be necessary to lead this court to reasonably conclude that a trial judge in this state did not fulfill his statutory duty to inform an indigent accused of his right to have counsel without cost to him.

The court is especially hesitant to give credence to such an unsupported allegation in this case where petitioner waited to seek habeas corpus relief from 1954, when he plead guilty, until after the trial judge died in 1958 and until after the decisions of the United States Supreme Court in Gideon v. Wainwright, Dir. (1963), 372 U. S., 335, and Carnley v. Cochran, Dir. (1962), 369 U. S., 506.

The Florida court in the Gideon case could not have been expected to foresee a duty to inform the petitioner of a right which the United States Supreme Court had previously held, since Betts v. Brady, Warden (1942), 316 U. S., 455, that he did not have. But Ohio, by its Constitution and statutes and by long established practice in all of its trial courts, has been administering justice in the spirit of the Gideon decision since long before it was first contended that the providing of counsel for an indigent accused without cost to him was compelled by the Fourteenth Amendment to the Constitution of the United States.

The statutory right of an indigent to have counsel appointed without cost to him has existed in Ohio since 1816. The fact that petitioner waited to claim this right until long after his trial judge died and until after the Gideon and Carnley cases received such wide publicity convinces the court that his claim is based either on faulty recollection and wishful thinking or opportunistic fabrication.

Petitioner remanded to custody.

Taft, C. J., Zimmerman, Matthias, Geiffith and Herbeet, JJ., concur.

O’Neill and Gibson, JJ., dissent.

0 ’Neill, J.,

dissenting. The right to court-appointed counsel is now guaranteed to defendants in state felony cases by the United States Constitution. Gideon v. Wainright, Dir. (1963), 372 U. S., 335. A corollary to this proposition of law is that there is no waiver of such right unless the trial record shows affirmatively that the accused was offered the aid of counsel hut refused the offer, understanding the consequences of his act. Carnley v. Cochran, Dir. (1962), 369 U. S., 506. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights, and no acquiescence in their loss will be presumed from a silent record. Johnson v. Zerbst, Warden (1938), 304 U. S., 458, 464.

In the instant case, the majority of this court has chosen to presume otherwise. The basic premise upon which the court’s opinion rests is the presumption of judicial regularity in informing those accused of crime of their constitutional and statutory rights. This presumption is based upon a printed journal entry which states only that the petitioner was informed of his constitutional rights. It should be noted at this point that, at the time of petitioner’s arraignment in 1954, there was no federal or state guaranteed constitutional right to court-appointed counsel in state felony cases. Betts v. Brady, Warden (1942), 316 U. S., 455. The Constitution of Ohio, Section 10, Article I, permits a criminal accused to appear with counsel but imposes no duty upon the court to inform him of his right to counsel or to provide counsel.

Under Section 2941.50, Bevised Code, the petitioner was entitled to court-appointed counsel. However, this right is statutory, and there is no indication in the journal entry that the petitioner was informed of his statutory rights.

The law is that there can be no presumption of waiver on the basis of a silent record. In fact, the law requires that there be a presumption against waiver when the record is silent.

The majority of the court indulges in three presumptions to reach its conclusion of waiver: (1) That the petitioner was informed of his statutory right to counsel; (2) that the petitioner intelligently understood the offer of counsel; and (3) that the petitioner intelligently and understandingly rejected the offer of counsel. The record is silent upon all three of these propositions. The only evidence in the record is the testimony of the petitioner that he was not informed of his right to counsel and no counsel was appointed for him.

I, therefore, respectfully dissent.

Gibson, J.,

dissenting. Doughty v. Maxwell, Warden (decided February 24,1964), 11 L. Ed (2d), 650, 84 S. Ct., 702, when read in the light of Gideon v. Wainwright, Dir. (1963), 372 U. S., 335, 9 L. Ed. (2d), 799, 83 S. Ct., 792, and Carnley v. Cochran, Dir. (1962), 369 U. S., 506, 8 L. Ed. (2d), 70, 82A S. Ct., 884, should make abundantly clear that relief in habeas corpus is to be allowed where an indigent defendant charged with and convicted of a felony was not offered counsel.

Gideon v. Wainwright, supra, enunciates the constitutional doctrine that the provision of the Sixth Amendment guaranteeing that in a criminal prosecution the accused shall enjoy the right to have the assistance of counsel for his defense, as one of the fundamental rights essential to a fair trial, is obligatory upon the states by virtue of the Fourteenth Amendment. Clearly, the trial and conviction, without counsel, of an indigent accused of a felony violates the United States Constitution. Inescapably, the conviction of an indigent accused on a plea of guilty without counsel, as here, also violates constitutional rights.

The issues in the case at bar are: (1) Was the petitioner offered counsel, and (2), if so, did he intelligently and understandingly reject the offer, thereby waiving his constitutional right to counsel. The petitioner testified, as the majority opinion indicates, that he was asked to plead without any explanation of his rights or offer of counsel. The state offered no evidence other than cross-examination of petitioner as to his prior record, which showed one felony conviction, and the trial court’s journal, which recited that petitioner was informed of his constitutional rights but without specifying the constitutional rights about which he was informed.

On the basis of the foregoing evidence and the existence of Section 2941.50, Revised Code, which provides that the court “shall” assign • counsel for an indigent accused, and Section 2937.02, Revised Code, which requires that the accused must be informed of his right to counsel, the majority apparently invokes the presumption of regularity of legal proceedings to reach an ostensible conclusion that petitioner was in fact offered counsel and in fact waived his right thereto by rejection. Such a conclusion on the basis of the factual evidence seems to be directly contrary to the rule of Carnley v. Cochran, supra, where Mr. Justice Brennan, at page 516, said: “* * * Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

This court’s assumption that the trial court complied with the above-cited statutory requirements may satisfy the legalism that judicial proceedings are presumed to be regular. Although it may be proper to invoke the presumption of regularity for the purpose of meeting statutory requirements, I doubt the efficacy of such a presumption, where constitutional rights of one accused of a felony are involved. In my opinion, Carnley requires that it must be shown as a fact that the indigent accused was advised of his right to counsel, and that he in fact waived his constitutional right by intelligently and understandingly rejecting offer of counsel. There is no such factual showing in this case either by the record or by evidence dehors the trial record. Certainly, the mere existence of statutory provisions requiring the assigning of counsel and the informing of an accused of his light to counsel are not proof that this petitioner was in fact offered counsel, and that such offer was rejected. The court’s journal does not reflect that petitioner was advised as to his statutory rights.

The court disbelieves the petitioner’s testimony in this proceeding apparently on the basis that he has slyly waited until after the death of the trial judge and after the decisions of the United States Supreme Court in Carnley and Gideon to seek habeas corpus relief. These reasons are not persuasive in my judgment because until Gideon he could not have known of his constitutional right to counsel, since Betts v. Brady, Warden (1942), 316 U. S., 455, 86 L. Ed., 1595, 62 S. Ct., 1252, had previously denied such a right. The trial judge died approximately five years before Gideon.

Since the record is silent as to whether petitioner was informed of his right to counsel and there is no other evidence that petitioner was offered counsel but there is testimony, even though colored by self-interest, that he was not informed of his rights to counsel, this court in conformity with Carnley cannot reasonably find that the petitioner waived his constitutional right to counsel.

In my opinion, the doctrine of the Carnley case, the Gideon case, and the Doughty case requires that the petitioner must be released from custody.  