Gates v. Haskins

Per Curiam. Petitioner contends for the first time, twelve years after his conviction, that he was not informed of his right to counsel, that he was not offered counsel, and that he did not waive counsel. In view of this long delay and petitioner’s extensive criminal record, we would ordinarily have considerable difficulty in permitting petitioner’s uncorroborated testimony to outweigh the reasonable inferences that we could draw, as we did in Conlan v. Haskins, Supt. (1964), 177 Ohio St. 65, 202 N. E. 2d 419, (1) that the trial judge probably performed his statutory duty to inform petitioner of his right to counsel at state expense and (2) that petitioner thereafter waived his right to such counsel. However, unlike the Conlan case, the trial judge in the instant case was available. Hence, we believed that he should be contacted. The trial judge was unable to remember any details of this case. We recognize that it would be unreasonable to expect him to do so. But see Troxell v. Maxwell, Warden (1964), 177 Ohio St. 8. However, we do not believe it unreasonable to expect [28] the trial judge to state that he had, if he did have, a practice to fully advise a defendant of his statutory right to counsel before he pleaded guilty. Madison v. Maxwell, Warden (1964), 177 Ohio St. 84. Since the trial judge in the instant case was unable to state that he had any such practice, we are of the opinion that the petitioner should be remanded to the Common Pleas Court for further proceedings according to law. Petitioner released from custody of respondent. Taft, C. J., Zimmerman, Matthias, Schneider and Brown, JJ., concur.