227 N.E.2d 814 | Ohio Ct. App. | 1967
This is an appeal filed pursuant to Section
Petitioner was indicated for assault with intent to rob and intentional shooting. He was assigned counsel by the court. While represented by counsel the charge of assault with intent to rob was reduced to assault with a dangerous weapon, and petitioner entered pleas of guilty to the charge of assault with a dangerous weapon and intentional shooting. He was sentenced on both charges, but the sentences run concurrently.
The Common Pleas Court Judge denied petitioner's petition and wrote a detailed opinion in which he specifically discussed every allegation made in petitioner's petition. We agree with the trial judge's opinion, and overrule the first five assignments of error because they are answered by the trial judge's opinion.
The remaining assignments of error of petitioner are that the Common Pleas Court committed error in failing to appoint and provide compensation for counsel for petitioner pursuant to Section
Because this statute is relatively new, there has been considerable confusion as to how this statute should be construed; therefore, this court is reviewing the law on this issue.
Section
"A court in which a petition is filed pursuant to Section
Section
"(B) Where a defendant is found guilty of a felony and is without and unable to employ counsel to prosecute an appeal, at the time of the hearing at which sentence is imposed the court may, upon a proper showing of financial inability to employ counsel to conduct an appeal, assign counsel to conduct such appeal as provided in division (A) of this section."
The first paragraph of the syllabus of State v. Catlino,
"A convicted defendant has a constitutional right to counsel on a direct appeal to the Court of Appeals from his judgment of conviction. (Douglas v. California,
However, the weight of authority is that the right to counsel guaranteed by the
The Third District Court of Appeals in the case of State v.Buffington,
However, the Ohio Supreme Court, in the case of State v.Catlino,
We feel that the result of State v. Catlino,
We hold that the clear legislative intent of Section
As a general rule, there is no need for the court in which a petition for postconviction relief has been filed to appoint counsel for an indigent prisoner when the court summarily dismisses the petition on either of the following grounds: (1) the *5
petition does not allege facts which, if proved, would entitle the prisoner to relief; and (2) the petition does allege facts which, if proved, would entitle the prisoner to relief, but the files and records of the case negative the existence of facts sufficient to entitle the prisoner to relief. These situations are taken from the second and third paragraphs of the syllabus of State v. Perry,
If the petition for postconviction relief alleges facts which, if proved, would establish that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution, and these facts are not negated by the files and records of the case, the trial court must grant a hearing thereon and serve notice on the prosecuting attorney.
When the trial court makes a decision that there is sufficient merit to a petition for postconviction relief to justify a hearing, the trial court should give serious consideration to appoint and provide compensation for counsel for an indigent prisoner. If the trial court does not so appoint counsel for an indigent prisoner we have held that the trial court abuses its discretion and remanded the case with instructions that counsel should be appointed for the indigent prisoner.
In the instant case, the trial judge examined the files and records of this case and decided that the defendant was entitled to no relief. Therefore, we hold that the trial judge properly exercised his discretion in refusing to appoint counsel for defendant.
Judgment affirmed.
JONES, P. J., and O'NEILL, J., concur. *6