State v. Turpin , 19 Ohio App. 2d 116 ( 1969 )

I concur in the reversal of the judgment of the Common Pleas Court insofar as the denial of postconviction relief was solely on the ground that the defendant, having served his sentence, was not presently under sentence and, therefore, would not be entitled to the relief afforded by Section 2953.21 et seq., Revised Code.

In its application to the particular counts contained in the indictment in this case, Section 2905.10, Revised Code, is silent on the question of guilty knowledge, the only reference to knowledge contained in the statute being with reference to a person knowingly permitting another to have illicit intercourse with a female person of good repute for chastity upon premises owned or controlled by him, which was not the portion of the statute upon which the counts contained in the indictment were based.

Where a criminal statute is silent on the question of knowledge or intent and judicial interpretation has not made such knowledge or intent a necessary element, it is not necessary that the indictment allege scienter (knowledge) or mens rea (guilty purpose). See Section 2941.05, Revised Code; State v.Hoffman, 131 Ohio St. 27; and State v. Lisbon Sales Book Co.,176 Ohio St. 482. This does not mean, however, that if a statute specifically makes proof of knowledge or intent a necessary element of the crime or where by judicial interpretation such knowledge or intent is made a necessary element, an allegation of such would not be a necessary element of the indictment. SeeState v. Ross, 12 Ohio St. 2d 37.

I concur in the finding that the indictments in this case were sufficient; however, in my opinion, the questions raised are such as need not have been decided in making disposition of the petition for postconviction relief in this case. All such questions were such as could be, and had been, decided on direct appeal, which judgments became res judicata of the issues sought to be raised. Postconviction relief should be denied for this reason. See State v. Perry, 10 Ohio St. 2d 175, 183, the concluding sentence of which opinion reads:

"Our statutes do not contemplate relitigation of those claims in postconviction proceedings where there are no allegations to show that they could not have been fully adjudicated by the judgment of conviction and an appeal therefrom."

I would modify the judgment appealed from and enter final judgment denying postconviction relief for the reason that the issues sought to be raised have already been fully litigated by the petitioner while represented by counsel, on direct appeal from judgment and sentence, and thus have been adjudicated against him, such judgments of conviction and on appeal beingres judicata of issues which petitioner seeks to present.

For the reasons set forth, I concur in the judgment denying postconviction relief under Section 2953.21 et seq., Revised Code.