State v. Welch

274 N.E.2d 756, 28 Ohio St. 2d 31, 57 Ohio Op. 2d 103, 1971 Ohio LEXIS 421

• Court: Ohio Supreme Court
• Decided: October 20, 1971
• Docket: No. 70-377
• Status: Published

Opinions

Corrigan, J.

The record before us reflects that defendant was apprised of his “constitutional rights,” but it does not affirmatively show that he was specifically told of his right to state-appointed counsel to represent him at state ■ expense if he was indigent.

This court has ruled in Jones v. State (1966), 8 Ohio St. 2d 21, that:

“To'have an effective waiver of counsel the accused must be -fully informed of his right to counsel, either retained or state-appointed, must understand such right and must intelligently and knowingly waive such right.”

The trial court in ruling on defendant’s petition to vacate found as a conclusion of law as follows:

'• “It is true that the defendant, Welch, was without counsel but he made no request for counsel, nor does he make any complaint that he was unable to employ counsel, in fact he stated that he did not wish to be represented by counsel. Defendant admits that the court explained to him his constitutional rights as well as asking the defendant if he desired counsel. The court was well satisfied that the defendant after the above explanation knew the types of crimes and what his rights were.

“ ‘The fact that the record does not specify the “constitutional rights” about which the petitioner was informed does not give rise to a presumption that the court did not comply with all the duties specifically imposed upon it by our Constitution and statutes.’ Conlan v. Haskins, Supt., 177 Ohio St. 65.”

We agree. However, no hearing was accorded this defendant on his petition to vacate. And, as pointed out by the able trial judge, the record does not specify the “constitutional rights” about which the defendant was informed at the time he entered the guilty pleas.

In State v. Hall (1968), 14 Ohio St. 2d 266, this court, following State v. Perry (1967), 10 Ohio St. 2d 175, held that where the record shows that a prisoner was not rep-' resented by counsel when he pleaded guilty and th’e record does not contain sufficient evidence to justify the conclusion that the defendant knowingly and intelligently waived his constitutional right to counsel, the trial court in postconviction proceedings should appoint counsel so. that there may be a judicial determination while he is represented by counsel on the issue of whether he knowingly and intelligently waived his right to counsel.

Since no such hearing was had in this case on defendant’s petition to vacate, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas, with instructions to grant an evidentiary hearing to defendant on his petition to vacate.

Judgment reversed.

O’Neill, C. J., Herbert and Stern, JJ., concur. Schneider, Duncan and Leach, JJ., dissent.