Opinion
No. 70-717
Decided March 3, 1971.
Habeas corpus — Not available, when — Confinement for several crimes — Validity of only one conviction attacked.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In 1967, petitioner pleaded guilty to an information charging him with breaking and entering an uninhabited dwelling in the night season and was sentenced to imprisonment for one to fifteen years. In 1968, petitioner pleaded guilty to an information charging him with breaking and entering an inhabited dwelling in the night season and was sentenced to imprisonment for five to thirty years.
In the present action, petitioner attacks only the validity of his second conviction, breaking and entering an inhabited dwelling in the night season. He contends that the trial court was without jurisdiction to accept his guilty plea to a charge for which the maximum possible penalty is life imprisonment, because, in view of that possible penalty, prosecution for such crime can not be by information.
Mr. Hobart Flowers, in propria persona. Mr. Paul W. Brown, attorney general, and Mr. James L. Hoover, for respondent.
Petitioner is presently in custody pursuant to two sentences imposed on him following convictions for two separate crimes. Even assuming the validity of petitioner's contention concerning his 1968 conviction, he is still properly incarcerated on his sentence on his 1967 conviction. He is not, therefore, entitled to release in habeas corpus. Ball v. Maxwell (1965), 1 Ohio St.2d 77.
Petitioner has an available remedy by postconviction proceedings for contesting the validity of his 1968 conviction for breaking and entering an inhabited dwelling in the night season.
Petitioner remanded to custody.
SCHNEIDER, HERBERT, CORRIGAN, STERN and LEACH, JJ., concur.
O'NEILL, C.J., and DUNCAN, J., dissent.