State v. Mishelek

326 N.E.2d 659, 42 Ohio St. 2d 140, 71 Ohio Op. 2d 116, 1975 Ohio LEXIS 472

• Court: Ohio Supreme Court
• Decided: April 23, 1975
• Docket: No. 74-374
• Status: Published

Opinions

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 in, 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.

2 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.”