#### In re Burson.

(No. 4181

— Decided November 29, 1948.)

*Mr. Wayne 8. Gerber,*for petitioner.

*Mr. Hugh 8. Jenkins,*attorney general, *Mr. Milan E. Erase*and *Mr. Robert Tatgenhorst,*for respondent.

*405Wiseman, P. J.

This is an action originating in this court, in which the petitioner seeks by a proceeding in habeas corpus to secure his release from the Ohio State Penitentiary. The petitioner was indicted as a second offender on three counts for stealing and for operating motor vehicles without the consent of the owners. A plea of guilty being entered, the accused was sentenced to imprisonment in the Ohio State Penitentiary on August 20, 1943.

Petitioner claims the court violated a fundamental right to have counsel appointed to represent him as provided by Section 13439-2, General Code, and that he was entitled to be advised of the nature and seriousness of the charge, and as to his constitutional right to trial by jury before being arraigned, and before being required to enter a plea.

The record shows that petitioner was not represented by counsel. Petitioner did not request the court to appoint counsel; neither does the record in the trial court affirmatively show that the accused was indigent and unable to employ counsel. The record in the office of the clerk of courts shows the following:

> “Arraigned, reading of indictment waived, plea of guilty. August 20, 1943.”

It is alleged that petitioner was ignorant and did not understand the nature of the charge and his right to a jury trial. We are asked to consider the uncorroborated statement of the petitioner in support of his contention. This court must determine how much weight is to be given the testimony of the petitioner. We do not find this allegation to be supported by the facts. The petitioner was not unfamiliar with the procedure in criminal cases. Once before he was charged with a similar offense and sentenced to a term in the Ohio State Reformatory.

*406When collaterally attacked the judgment of the court carries with it a presumption of the regularity of the proceedings. *Johnson*v. *Zerbst, Warden,*304 U. S., 458, 468, 82 L. Ed., 1461, 58 S. Ct., 1019. Thus, we conclude from the record that the petitioner waived the reading of the indictment and that every legal right in this regard was accorded the petitioner in the absence of proof to the contrary.

Authorities have been cited in support of the proposition that the failure to appoint counsel justifies a reversal on an appeal or in error proceedings. These authorities have no application to the question presented. In the instant case, a collateral attack is made against the judgment and conviction of the petitioner. Admitting, without deciding, that the record discloses an irregularity in the proceedings, such irregularity does not go to the jurisdiction of the court. Habeas corpus does not lie unless the judgment of conviction is void. Clearly the Common Pleas Court of Franklin County, Ohio, had jurisdiction in the matter. The court having jurisdiction, habeas corpus does not lie. Section 12165, General Code; *Ex parte Elicker,*117 Ohio St., 500, 159 N. E., 478; *Yutze*v. *Copelan, Chief of Police,*109 Ohio St., 171, 142 N. E., 33, 32 A. L. R., 1048; *State, ex rel. Conners,*v. *DeMuth, Supt.,*96 Ohio St., 519, 528, 118 N. E., 98; *State, ex rel. Faber, Recr.,*v. *Jones et al., Judges,*95 Ohio St., 357, 116 N. E., 456; *In re Allen,*91 Ohio St., 315, 110 N. E., 535; *Ex parte Van Hagan,*25 Ohio St., 426, 432; *Wright*v. *Brady, Warden,*129 F. (2d), 109; *Ex parte Faber,*56 Okla. Cr., 177, 35 P. (2d), 741.

Counsel for the petitioner has cited the case of *Johnson*v. *Zerbst, supra,*in support of his contention that the judgment of conviction was void. The proceeding in that case arose in the federal court and the *407Supreme Court of the United States was required to decide the issue under the Sixth Amendment to the Constitution of the United States which applies only to trials in the federal courts. That ease is distinguishable on the facts from the instant case. In the case of *Johnson*v. *Zerbst*the accused pleaded not guilty. Two days after being indicted the accused was taken before the court, arraigned, tried, convicted and sentenced. The record further shows that the accused stated to the court that he had no lawyer but was tried, convicted and sentenced without the assistance of counsel.

It is- admitted that if the act of the court amounted to a denial of “due process” the judgment and sentence of the court would be void and habeas corpus would lie. “Due process” is not denied in every case when the court fails to appoint counsel to represent an indigent defendant. To constitute a denial of “due process” the record must show a state of facts which is offensive to our concept of “due process” as guaranteed by the Fourteenth Amendment to the United States Constitution. *Betts*v. *Brady, Warden,*316 U. S., 455, 86 L. Ed., 1595, 62 S. Ct., 1252. Under the facts presented in the instant case, the failure of the court to appoint counsel did not amount to a denial of “due process.”

To avoid unnecessary litigation the trial courts would do well to appoint counsel before arraignment, and where counsel is not appointed, to show by court entry in detail the action taken and the reason therefor.

*Petitioner remanded to custody.*

Miller and Hornbeck, JJ., concur.

*408(Decided January 26, 1949.)

On Application for separate finding of facts and conclusions of law.

By the Court. This cause is before the court on request of petitioner for a separate finding of facts and conclusions of law — two motions of petitioner and two motions of the respondent directed toward the granting or denying of the request for a separate finding.

The court announced its opinion November 29, 1948. On December 3, 1948, the petitioner filed a request for a separate finding. Rule IX, as it then existed, provided :

> ‘ ‘ The party requesting a finding of facts shall, within five days after the opinion is announced, unless further time be given by the court, prepare the finding of facts and submit the same to the opposite counsel, and within five days after its receipt by him the same shall be submitted to the court, together with his objections thereto, if any, and suggestions, in writing.”

The record shows a failure to comply with this rule since the separate finding was not submitted to opposite counsel until December 29, 1948, on which date the same was filed with the clerk of this court without the approval or signature of the court. Rule IX, as it then existed, further provided that, ‘‘for want of a strict compliance with this rule, unless good cause be shown to the contrary, the clerk shall enter a general finding instead of a finding of facts. ’ ’

The request for a separate finding will be denied.

*Request overruled.*

Wiseman, P. J., Miller and Hornbeck, JJ., concur.

*409(Decided January 26, 1949.)

On Application for rehearing.

By the Court.

In support of the contention that the failure to appoint counsel renders the judgment and conviction void, applicant cites the following cases: *Williams*v. *Kaiser, Warden,*323 U. S., 471, 89 L. Ed., 398, 65 S. Ct., 363; *Townsend*v. *Burke, Warden,*334 U. S., 736, 92 L. Ed., 1690, 68 S. Ct., 1252; *Wade*v. *Mayo, Custodian,*334 U. S., 672, 92 L. Ed., 1647, 68 S. Ct., 1270; *Uveges*v. *Commonwealth of Pennsylvania,*335 U. S., 437, 93 L. Ed.,-, 69 S. Ct., 184.

These cases are distinguishable from the instant case on the facts. The *Williams case*involved a capital offense. The defendant requested the court to appoint counsel which was denied. The court on the whole record found that the defendant was unable to make a proper defense. In the *Townsend case,*the court found that the trial court was given wrong information relative to prior offenses which, when aggravated by circumstances showing that it resulted in the prisoner being actually taken advantage of, or prejudiced, and in the absence of counsel, resulted in a denial of due process. In the *Wade case,*an eighteen-year-old youth was charged with a capital offense. He pleaded not guilty and requested the court to appoint counsel. The court refused to appoint counsel and forced the prisoner to trial which resulted in a conviction. The court found that the youth was incapable of adequately representing himself in the trial. The *Uveges case*is, also, distinguishable on the facts.

In the *Townsend case,*the court held that the due process clause of the Fourteenth Amendment to the United States Constitution does not prohibit the state *410from accepting a plea of guilty in a noncapital case from an uncounseled defendant.

In *Bute*v. *Illinois,*333 U. S., 640, 92 L. Ed., 986, 68 S. Ct., 763, the court held that in a noncapital case failure to appoint counsel does not always result in a denial of due process. The court held that in the absence of any showing which would require it, the due process clause of the Fourteenth Amendment did not require the trial court to initiate an inquiry or the offer or assignment of counsel. In that case, as in the instant case, the court held that there was nothing in the record to show that the petitioner, at the time of trial, either desired counsel or was unable to procure counsel.

The severity of the punishment, if within statutory limits, cannot be successfully urged in support of the claim that defendant was taken advantage of or was prejudiced by failure to appoint counsel. *Townsend*v. *Burke, supra.*

Because of the view we take of this case, and the proposition of law applied, we do not deem it necessary to decide whether in the instant case the trial court was or was not under a legal duty to make inquiry of the defendant to determine his indigency or advise the defendant that he was entitled to counsel. On the record presented, it is sufficient for this court to hold the failure to appoint counsel did not constitute a denial of due process.

*Application for rehearing denied.*

Wiseman, P. J., Miller and Hornbeck, JJ., concur.