State v. Mishelek
42 Ohio St. 2d 140
Ohio
1975
Check Treatment

Lead Opinion

Per Curiam.

This court recently held in State v. Milanovich (1975), 42 Ohio St. 2d 46, that “where a claim raised by a petition for posteonviction relief under R. C. 2953.21 is sufficient on its face to raise an issue that petitioner’s conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief,” and is sufficient to warrant an evidentiary hearing.2

Therefore, on authority of, and for the reasons stated *142in, State v. Milanovich, the motion for leave to appeal is allowed, and the judgment, of the Court of Appeals is reversed, and, in accordance with Milanovich, the cause is remanded to the Court of Common Pleas for further proceedings.

Judgment reversed.

O’Neal, C. J., Corrigan, Stern and W. Brown, JJ., concur. Herbert, Celebrezze and P. Brown, JJ., dissent.

However, as this court pointed out in Milanovich, at page 50, “this does not necessarily require that an evidentiary hearing be held for every petitioner who relies upon matters outside the record, since evidence of such matters may be introduced by motion for summary judgment by either the petitioner or the prosecuting attorney.”



Dissenting Opinion

Herbert, J.,

dissenting. No decision of the United States Supreme Court yet requires us to hold as we did in Milanovich and as the majority does in the case at bar. Milanovich involved counsel appointed and paid by the state. The instant case concerns counsel retained and paid by the accused. I do not believe that the fair and orderly administration of criminal justice will be served by reaching the same result in both of these cases.

P. Brown, J., concurs in the foregoing dissenting opinion.