
    The State of Ohio, Appellee, v. Miller, Appellant.
    (No. 69-134
    Decided July 30, 1969.)
    
      Mr. James A. Berry, prosecuting attorney, for appel-lee.
    
      Mr. Theodore Miller, in propria persona.
    
    
      
      This decision was made after the death of JUSTICE ZIMMERMAN and before the appointment of a successor.
    
   Per Curiam.

This case is before the court on a motion for leave to appeal in a postconviction proceeding.

On April 15, 1958, appellant entered a plea of guilty to a charge of grand larceny. lie was referred for a probation report and, on May 9, 1958, was placed on two years probation. On August 11, 1961, a hearing was held on the application of the state to terminate probation. At the conclusion of that hearing probation was revoked for the reason that appellant had been convicted of a felony in the state of Indiana while on probation in this state. He was then sentenced to the Ohio Penitentiary.

Appellant contends that he was not represented by counsel at the time of entering a guilty plea or at the time his probation was revoked and sentence imposed, and that he was never advised of his right to counsel.

On January 28, 1966, the Common Pleas Court denied the petition to vacate sentence and held that a defendant is not entitled to appointed counsel at a revocation of probation hearing.

On May 25, 1967, the Court of Appeals affirmed the judgment of the trial court.

The decisions of both the trial court and Court of Appeals were made prior to the decision in Mempa v. Rhay (November 13, 1967), 389 U. S. 128, which held that a defendant is entitled to have counsel appointed to represent him at his hearing on revocation of probation. The United States Supreme Court has also held that Mempa v. Rhay is to bo applied retroactively. McConnell v. Rhay (October 14, 1968), 89 S. Ct. 418. Therefore, appellant is entitled to relief under Mempa v. Rhay.

The motion for leave to appeal is allowed, the decision of the Court of Appeals is reversed, and the cause is remanded to the Common Pleas Court for further consideration in the light of Mempa v. Rhay and McConnell v. Rhay, supra.

Judgment accordingly.

Taft, C. J., Matttttas, O’Neill, Schneider, Heebeet and Duncan, JJ., concur.  