203 N.E.2d 841
No. 39173Supreme Court of Ohio.
Decided January 20, 1965
Habeas corpus — Petitioner contends he was tricked into pleading guilty — Claim of trickery not supported by record.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. Petitioner, Harold Kelley, on April 2, 1962, while represented by counsel, entered pleas of guilty to one count of burglary and one count of forcing entrance into a safe. He was sentenced to the Ohio Penitentiary, the sentences to run concurrently. Petitioner claims that he was tricked into entering the pleas of guilty by the promise that he would be sentenced for one year only.
The facts, according to petitioner, are as follows:
On or about November 5, 1961, petitioner was picked up by the Anderson, Indiana, police and questioned about a burglary and safecracking in West Milton, Ohio. The Indiana police told him that all the West Milton police wanted was to clear up the matter, and that, if he signed a statement admitting his guilt, no proceedings would be taken against him. At this time petitioner was out on bail for a burglary in Indiana. Under these circumstances, petitioner contends that he signed the statement admitting his guilt of the crimes in West Milton. An indictment was returned on January 13, 1962, in Miami County charging petitioner with burglary and forcing entrance into a safe. He was picked up by the Federal Bureau of Investigation, and after a warrant was received from Miami County, Ohio, he was extradited to Ohio. He was arraigned in Miami County, and, not having an attorney, one was appointed to represent him. An alibi was filed. On April 2, 1962, petitioner was taken into court. According to petitioner’s testimony, he was taken into the judge’s chambers where the judge, the prosecuting attorney, the police chief of West Milton, and two officers from Indiana were present. After they had
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discussed the burglary, petitioner’s attorney took him into an adjoining room and told him that if he would plead guilty he would get one year only, and that the Indiana charges would be dropped. He testified that the judge and prosecuting attorney then came into the room and repeated this promise. Petioner contends that, when he denied his guilt, the prosecuting attorney told him that with the signed statement he would have no difficulty in obtaining a conviction and would then file an habitual criminal indictment against petitioner, and that the judge told him he would, if forced to trial, make the sentences run consecutively.
When petitioner consulted his attorney, his attorney told him that it was up to him, but that it might be better if he pleaded guilty. Thereupon, petitioner pleaded guilty and was sentenced on both counts, the sentences to run concurrently. Petitioner was denied parole when he appeared before the parole board 11 months after he entered the penitentiary. The evidence does show that the Indiana charges were dismissed.
Mr. Harold Kelley, in propria persona.
Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Per Curiam.
Petitioner, on the above testimony, contends that he was tricked into pleading guilty. However, the only evidence to support petitioner’s contentions is his own statements. The transcript of testimony taken at the time petitioner entered his plea of guilty is directly in conflict with petitioner’s claimed innocence and the claim that he was induced to plead guilty by trickery. The pertinent part of this transcript reads as follows:
“Proceedings were had as follows:
“Mr. Foster: Your Honor, at this time the defendant wishes to change his plea from not guilty to the indictment to the plea of guilty.
“The Court: Mr. Kelley, would you stand up, please. It is being understood you are not pleading guilty in this case other than the fact that you are actually guilty of the crime. Is that correct?
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“Defendant: Yes, sir.
“The Court: Do you have anything to say before sentence is pronounced against you?
“Mr. Foster: Yes, your Honor. I believe that Mr. Kelley has co-operated with the Indiana State Police in this particular case and we would very much request that you recommend to the parole board that Mr. Kelley be released at the earliest opportunity he has to come up before that board.
“Mr. De Weese: The Court please, it is my understanding and the evidence would so disclose that the defendant did co-operate with the Indiana State Police and Indiana authorities in this matter. Not only would I join in the request of defense counsel but in the report which I make I would so state. However, I want to make it clear that this matter — so it wouldn’t appear at some later date — that this matter in any way induced the defendant to enter his plea and that the plea is only entered because he is guilty as charged.
“The Court: Is that correct, you are entering this plea because you are guilty?
“The Defendant: I don’t understand.
“(No audible reply)
“The Court: He indicated Yes. In view of the fact of your co-operation with the Indiana State Police, the court is going to sentence you concurrently on the two counts — No. one, one to fifteen, and under the second, one to twenty years, to the Ohio State Penitentiary and the court will inform the parole board. Of course, we can’t make any promises as to when you will be released, but as I stated, I will inform the parole board when I get a notice from them.”
In view of this record, petitioner’s claim of trickery is not well taken.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O’NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.
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