Opinion
No. 38720
Decided March 25, 1964.
Habeas corpus — Not available, when — To determine competency of counsel — Governor's authority under Section 2949.30, Revised Code — Moot question.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. Petitioner was indicted by the Grand Jury of Lucas County for murder in the first degree and abduction resulting in death. He was tried and convicted of murder in the first degree, without a recommendation of mercy, in December 1960. Subsequent stays of execution and executive orders of reprieve were granted. On February 27, 1964, an executive order of reprieve to March 16, 1964, was granted. On March 12, 1964, a stay of execution was granted by this court.
Mr. William J. Abraham and Mr. David K. Purkey, for petitioner.
Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner's contention that he was not represented by competent counsel is not well made inasmuch as this is a matter which must be raised by appeal rather than by habeas corpus. Rodriguez v. Sacks, Warden, 173 Ohio St. 456; McConnaughy v. Alvis, Warden, 165 Ohio St. 102. It is noted that a motion for leave to appeal alleging lack of competent counsel was filed by petitioner in the Court of Appeals for Lucas County. The motion was denied. Petitioner could have appealed to this court on the ground that the Court of Appeals had abused its discretion in denying the motion. No such appeal was attempted.
Petitioner contends further that the Governor had no authority under the provisions of Section 2949.30, Revised Code, to set a date of execution.
When a stay of execution is granted by this court, it is within the inherent power of the court to terminate such stay of execution and to set a date when the sentence shall be carried into execution. Accordingly, the question of the authority of the Governor under the provisions of Section 2949.30, Revised Code, has become moot.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, O'NEILL, GRIFFITH and HERBERT, JJ., concur.
MATTHIAS, J., not participating.