concurring. I concur in the reversal of the judgment of the Court of Appeals, but feel compelled to make additional comment.
This case originated in the Common Pleas Court of Franklin County on a petition for postconviction relief filed by the defendant, hereinafter referred to as appellant, to vacate the September 7,1944, judgment and sentence for burglary and larceny, and the September 13, 1956, judgment and sentence as an habitual criminal under R. C. 2961.12.
The habitual criminal statutes of Ohio, R. C. 2961.11 through 2961.13, provide that if a person has four convictions for certain specified crimes, he shall be adjudged an habitual criminal and sentenced to imprisonment for life. It is noted that R. C. 2961.13 provides that at the time a *46defendant is sentenced as an habitual criminal, the court will also vacate the sentence, but not the judgment of conviction, for the fourth offense.
Appellant was indicted as an habitual criminal by the Franklin County Grand Jury on May 21, 1956 (case No. 35900). The case was tried to a jury, appellant was found guilty and, under R. C. 2961.12, he was sentenced to life imprisonment and the sentence in case No. 35669 (appellant’s fourth conviction), was vacated. No direct appeal was taken by appellant from that judgment of conviction.
The four felony convictions which led to appellant’s indictment as an habitual criminal were all secured in the Common Pleas Court of Franklin County, and are as follows :
1. On August 31, 1944, appellant was charged with burglary and grand larceny (case No. 26990), and on September 7, 1944, entered a plea of guilty to the charge and was sentenced to the Ohio Eeformatory.
2. Appellant was indicted on September 28,1946 (case No. 28229), and on November 6, 1946, waived a jury trial and was found guilty of grand larceny by the court and sentenced to the Ohio Eeformatory.
3. On March 16, 1952, appellant was indicted on two counts of burglary and larceny (case No. 32641), and on May 20, 1952, was found guilty on both counts and sentenced to the Ohio Penitentiary.
4. On January 9, 1956, appellant was indicted on two counts of burglary and larceny (case No. 35669), and on May 15, 1956, was found guilty on both counts and sentenced to the Ohio Penitentiary, to serve the sentences consecutively.
On December 2, 1968, appellant filed his petition to vacate the judgments and sentences imposed by the Common Pleas Court in case Nos. 26990 and 35900, the 1944 and 1956 convictions, respectively.
On December 17, 1968, the Common Pleas Court made findings of fact and conclusions of law and rendered a decision dismissing appellant’s petition and denying the requested relief. The Court of Appeals affirmed the judgment of the Common Pleas Court and denied appellant’s *47motion for appointment of counsel to pursue his appeal.
On September 23, 1970, this court accepted jurisdiction of this cause, allowing appellant’s motion for leave to appeal.
The Ohio Posteonviction Remedy Act (R. C. 2953.21 through 2953.24) provides that if a person convicted of a criminal offense claims that there was a denial of his constitutional rights under the Ohio Constitution or the United States Constitution, such person may file a petition at any time in the court which imposed the sentence, asking the court to vacate or set aside the judgment or sentence; and if the court finds grounds for granting relief it shall vacate and set aside the judgment complained of.
Appellant filed his petition for postconviction relief under R. C. 2953.21, alleging that he pleaded guilty in 1944 without the aid of an attorney;*that he did not knowingly or intentionally waive his right to counsel; nor was he advised of his right to counsel by the sentencing judge.
The findings of fact and conclusions of law of the Common Pleas Court state that the defendant did not at the time of his plea of guilty on September 7, 1944 (case No. 26990), have representation by counsel, nor did he affirmatively waive any right to counsel by formal action at that time.
The issues to be decided are:
(1) Did the fact that appellant did not have counsel and did not affirmatively waive his right to counsel violate his constitutional rights to such an extent that his 1944 conviction for burglary and larceny would be void or voidable?
(2) If appellant’s 1944 conviction is void, did he have four convictions necessary for sentencing as an habitual criminal?
(3) Can the appellant use the Postconviction Remedy Act to attack the validity of the 1944 conviction and the 1956 conviction as an habitual criminal, in these proceedings?
The Common Pleas Court and the Court of Appeals indicated that appellant is incorrectly attacking the 1944 and 1956 convictions. If their reasoning is followed, appellant would first have to attack the 1944 conviction for burglary *48and larceny (case No. 2699Ó) as being void or voidable, and if he were successful he would then have to attack his conviction as an habitual criminal in 1956 (case No. 35900). Such procedure would require needless litigation. This court has before it all the necessaiy files and records pertaining to the proceedings against the appellant upon which to decide the issues in this case.
The right to counsel, guaranteed by the Sixth Amendment to the United States Constitution, is applicable to the states by virtue of the Fourteenth Amendment, making it unconstitutional to try a person for a felony in a state court unless he has a lawyer or has validly waived one. Carnley v. Cochran (1962), 369 U. S. 506; Gideon v. Wainwright (1963), 372 U. S. 335; Doughty v. Maxwell (1964), 376 U. S. 202.
In Ohio, a prisoner is entitled to postconviction relief under R. C. 2953.21 if the court can find there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution or the United States Constitution. Paragraph three of the syllabus of State v. Perry (1967), 10 Ohio St. 2d 175.
Appellant did not have counsel, and he did not waive his right to counsel. This entitles him to postconviction relief because there was a denial of his constitutional rights which makes the 1944 judgment and sentence voidable, since Gideon v. Wainwright, supra, has retrospective application.
It is notea tnat appellant did not raise constitutional issues at the time of his 1956 sentencing as an habitual criminal when he was represented by counsel. This does not preclude appellant from using the Postconviction Remedy Act.
This court has held that constitutional issues cannot be considered in postconviction proceedings under R. C. 2953.-21 et seq., where they could have been fully litigated by the prisoner while represented by counsel. Paragraph seven of the syllabus in State v. Perry, supra, and paragraph two of the syllabus in State v. Duling (1970), 21 Ohio St. 2d 13. However, under the facts in this case it was not reasonable to expect counsel for appellant to raise the issue of the *49constitutionality of the 1944 conviction in the habitual criminal proceedings in 1956 and to anticipate the 1963 ruling by the United States Supreme Court in Gideon v. Wainwright.
The trial court’s findings of fact and conclusions of lav clearly show that the appellant did not have counsel, nor did he affirmatively waive his right to counsel, when he pleaded guilty in 1944 to the charges of burglary and larceny. He was denied a specific federal constitutional right, and, therefore, the 1944 conviction is invalid and should be vacated and held for naught.
An invalid conviction cannot be used as one of the foui convictions necessary to the conviction of a person as an habitual criminal. Burgett v. Texas (1967), 389 U. S. 109. Tim 1956 conviction of appellant as an habitual criminal is also invalid and should be vacated and held for naught because, upon the vacation of the 1944 judgment in case No. 26990, the appellant will not have the four convictions required by R. C. 2961.12.
Further, the 1956 conviction for burglary and larceny (case No. 35669) which was vacated pursuant to R. C. 2961.-13, should he reinstated and appellant resentenced thereunder, with credit given for the time served as an habitual criminal in case No. 35900.