Opinion
No. 38628
Decided May 6, 1964.
Habeas corpus — Promise of probation if plea of guilty entered — Issue raised only by appeal — Acts for which probation revoked — Errors relating to sentence not cognizable in habeas corpus — Right to counsel at hearing on revocation of probation.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In September 1961, petitioner, Charles Daniel Kennedy, was indicted by the Grand Jury of Summit County for armed robbery. At his arraignment he entered a plea of not guilty, and counsel was appointed to represent him. Subsequently, on February 23, 1962, he withdrew this plea and entered a plea of guilty. Imposition of the sentence was suspended, and petitioner was placed on a three-year probation, one year of which was to be served in the county jail. On July 17, 1962, petitioner was released from the county jail. On August 16, 1963, he was brought before the court on a charge of violating his probation by forgery of unemployment compensation checks stolen from the United States mail. The federal government, having learned of the state's hold on petitioner, did not prosecute on this crime. After a hearing thereon, petitioner's probation was revoked, and he was sentenced to the Ohio Penitentiary.
Mr. Charles Daniel Kennedy, in propria persona. Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner contends that his plea of guilty was induced by promises of the prosecuting attorney, his own counsel and the court. The only evidence of such promises is the statement of the petitioner. The promise, according to petitioner's own statement, was that he would be put on probation, which he was, and the probation was revoked only as a result of his own acts.
Even if such promises were made, that is not a matter which may be reviewed in habeas corpus; such issues can be raised only by appeal. Boyer v. Maxwell, Warden, 175 Ohio St. 318; and Click v. Eckle, Supt., 174 Ohio St. 88.
Petitioner urges also that, inasmuch as the federal authorities did not prosecute him on the charge of forgery of unemployment compensation checks stolen from the United States mails, such offense could not be used as ground for the revocation of his probation. This, of course, is untenable. It was the act of petitioner which constituted the violation of his probation and not whether he was prosecuted by the authorities for such act.
Petitioner urges also that the time he spent in the county jail should have been credited on his penitentiary sentence. Errors relating to sentence, if any, are not cognizable in habeas corpus but must be raised by appeal. Spence v. Sacks, Warden, 173 Ohio St. 419; and Johnson v. Sacks, Warden, 173 Ohio St. 452.
Finally, petitioner argues that his sentence was void because he did not have counsel appointed to represent him at the hearing on the revocation of his probation. The right to appointment of counsel relates only to the actual trial of the accused. Once one is convicted and placed on probation, his trial has terminated, and one does not have the right to have counsel appointed to represent him on a subsequent hearing for the revocation of his probation. Thomas v. Maxwell, Warden, 175 Ohio St. 233.
Petitioner has shown no right to his release.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.