182 N.E.2d 10 | Ohio Ct. App. | 1961
This is an action in habeas corpus, originating in this court, instituted for and on behalf of Ralph E. Shonk by his attorney. At the inception of the hearing, upon motion, it was ordered that the petition be amended to show that notwithstanding the form of the caption the action is being prosecuted by and on behalf of Ralph E. Shonk and not on the relation of the state of Ohio.
In the return filed to the writ of habeas corpus by the acting Superintendent, Lima State Hospital, it appeared that Shonk's detention at the Lima State Hospital was based on a judgment of commitment of the Court of Common Pleas, Division of Domestic Relations, Juvenile Department, Stark County, Ohio, entered on July 10, 1959, in the case of State of Ohio v.Ralph E. Shonk, which judgment recited and provided:
"This day came the defendant, Ralph E. Shonk, into open court, in the custody of the sheriff, having heretofore entered a plea of guilty of the crime of acting in a way tending to cause delinquency in a minor child (Rev. Code §§ 2151, 41, 43, 99) as charged in the affidavit, and having been heretofore committed to the Lima State Hospital for examination pursuant to the provisions of the R. C. Section
"Whereupon the prosecuting attorney moved that sentence *306 be pronounced against the defendant. Whereupon the court was duly informed in the premises on the part of the state of Ohio, by the prosecuting attorney, and on the defendant, by the defendant himself, and thereafter the court asked the defendant whether he had anything to say as to why judgment should not be pronounced against him, and the defendant, said that he had nothing further to say except that which he had already said, and showing no good and sufficient reason why sentence should not be pronounced, the court thereupon pronounced sentence.
"It is therefore ordered, adjudged, and decreed that the defendant be committed to the Stark County Jail for a period of one (1) year, and that he pay a fine of one thousand ($1,000) dollars, and the costs of this prosecution, that he stand committed to said Stark County Jail until said fine and costs are paid, or secured to be paid, or he is otherwise legally discharged, allowing him a credit of $3.00 per day for each day of such confinement.
"It is further ordered, adjudged, and decreed that the defendant, Ralph E. Shonk, be and he hereby is ordered committed indefinitely to the Department of Mental Hygiene and Correction of the state of Ohio; and
"It is further ordered, adjudged, and decreed that the defendant be committed to the Lima State Hospital, heretofore designated an appropriate institution by said department, and
"It is further ordered that the defendant pay the costs of this prosecution for which execution is hereby awarded."
On the hearing of this petition it was testified by two psychiatrists employed by the Lima State Hospital, one called as a witness by petitioner and the other called by respondent, and who were acquainted with Shonk's case history and had observed him at the hospital, that Shonk has a chronological age of 39 years but that his mental age at all times herein concerned has been that of a "child of kindergarten level" and that there is no reason to believe that it will ever be any greater; that notwithstanding that the committing court had determined him to be a "psychopathic offender," he does not now have and never has had a psychopathic personality, and does not satisfy the definition thereof in Section
The issue in this case is whether the petitioner is unlawfully restrained of his liberty by respondent. In disposing of this issue we must first determine whether his restraint is by virtue of a judgment of a court of record having jurisdiction to render the judgment. Section
"The court shall conduct a hearing thereon not earlier than ten nor later than thirty days after the service of such copies of the report. Both the state and such person, his guardian, or next friend may appear in person or by counsel at such hearing, subpoena, examine, and cross-examine the examiners making the report, regardless of the part of the state in which the examiners may live, and produce witnesses, both lay and expert, as to the mental condition of such person. In the event and to the extent that no subpoenas are issued for the examiners to appear *308 at the hearing, the report or such part of it as was prepared by the examiners for whom no subpoena was issued, is prima-facie evidence.
"If upon consideration of such report and such other evidence as is submitted, the court finds that such person is mentally ill as defined in Section
There is no other provision of Ohio law providing for the commitment of a psychopathic offender or mentally deficient offender, as defined by Section
So far as appears from the judgment entry of the trial court filed with the return herein, Shonk, if convicted of any crime at all, was convicted of the crime of "acting in a way tending to cause delinquency in a minor child as charged in the affidavit." The defendant was not therefore convicted under Sections
The Court of Common Pleas, Division of Domestic Relations, Juvenile Department, Stark County, was created under the provisions of what is now Section
The judgment of the trial court shows merely that the petitioner herein was charged with, and sentenced for, the crime of acting in a way tending to cause delinquency in a minor child. There are an unlimited number of possible acts which he could have committed in a way tending to cause delinquency in a minor child, for instance, offering the child a drink of intoxicating liquor, interfering with its education, attempting to enter the marriage relation with such child without the consent of the child's parents; and, in the absence of some showing in the record of same, there is no presumption that the crime of which he was charged and setenced was one "involving a sex offense, or in which abnormal sexual tendencies are displayed." The judgment of the trial court hereinbefore quoted is the only part of the record which is before us and the same fails to show that the petitioner herein was convicted of any such offense. A copy of the affidavit filed against the petitioner was displayed to this court, and, it likewise did not charge the defendant, *310
petitioner herein, with any acts "involving a sex offense, or in which abnormal sexual tendencies are displayed." The statement received by the Lima State Hospital from police authorities which was read to this court, wherein it was alleged that the act with which Shonk was charged involved abnormal sexual tendencies, is not a part of the record of the trial court and has no probative value herein to show compliance with the jurisdictional prerequisites of Section
For these reasons this court must conclude that, it not appearing in the record that the prerequisites for exercise of jurisdiction by the Court of Common Pleas, Division of Domestic Relations, Juvenile Department, Stark County, existed, such court, or the judge thereof, did not have jurisdiction to commit the petitioner to the Lima State Hospital.
In the face of the testimony of the psychiatrists respecting their opinion as to the petitioner's potential conduct with relation to young children, if and when released from institutional supervision, this court is extremely reluctant to release the petitioner, but even if properly convicted, petitioner was sentenced to a term of one year in the Stark County Jail, and already has been confined to the Lima State Hospital for a period exceeding one year and eight months. Under these circumstances this court has no choice but to insure to the petitioner the rights guaranteed to him by the Constitution of the United States and the Constitution and laws of the state of Ohio, and to order his release from confinement at the Lime State Hospital. If the petitioner needs further institutional care there are other legal means by which such care can be accomplished, but which means are outside the jurisdiction of this court.
Although it has no bearing on our decision herein, we would feel it remiss if we did not comment, and we feel compelled in the interests of justice to comment, on the manner in which the petitioner was tried and convicted. In doing so we do not mean to be unduly critical of the trial court for, since the petitioner cannot be classified as insane, the statutes of Ohio do not provide a ready solution for the problem. We note, however, as must have been known by the trial court, that although an adult in chronological age the petitioner has the mental age of a kindergarten child. As an adult charged with a crime he was entitled, unless he should plead guilty, to be defended by an attorney *311 and to be tried by a jury. On the basis of petitioner's plea of guilty he was tried by the court without being represented by an attorney and without a jury. We ask, categorically, whether a person with the mentality of a child of kindergarten age can sufficiently appreciate his rights under the law that he can be denied such rights on the basis of a plea of guilty which there is serious doubt he could comprehend? Does a conviction based on such procedure satisfy the requirements of the due process clauses of our state and federal Constitutions?
It is ordered that the petitioner be discharged forthwith from confinement at the Lima State Hospital.
Petitioner released from custody.
YOUNGER and MIDDLETON, JJ., concur.