dissenting. I dissent from the order issued
by the majority in remanding this cause to the Common Pleas Court. Under the state of the record the habitual criminal conviction cannot be set aside upon any determination to be made by the trial court as to the 1944 burglary conviction, which was one of the convictions upon which the 1956 judgment of conviction was based.
The trial court, in hearing petitioner’s claim, stated that in 1944 no records were kept by courts to indicate that defendant had affirmatively waived his right to have counsel; therefore, Gideon v. Wainwright (1963), 372 U. S. 335, pertains. In the 1956 habitual criminal case proceeding, the 1944 conviction was only an evidentiary matter. As far as the record herein is concerned, the 1944 judgment of conviction was a viable judgment in 1956, and it is viable at the present time.
*50The innocence or gnilt of the defendant, as to any of the four convictions upon which the habitual criminal case was base 1, cannot be considered in this proceeding. In Maloney v. Maxwell (1962), 174 Ohio St. 84, 86, this court held “that the effect of the Habitual Criminal Act is to attach an additional penalty for a fourth offense.”
Petitioner claims that Burgett v. Texas (1967), 389 U. S. 109, is authority for his position that the 1956 habitual criminal conviction can be set aside on the basis of a “void” judgment of conviction in one of the cases that coustituted the Habitual Criminal Act violation. Burgett was a direct appeal to the Supreme Court of the United States from a judgment of conviction. The judgment of conviction was reversed and the cause remanded. Thus, the judgment of conviction had not become final. In this case, the habitual criminal judgment of conviction became final in 1956. In the case at bar, a trial was had and defendant was represented by counsel.
In the remanding of the cause to the trial court by the majority to consider constitutional infirmities, if any, in the 1944 judgment of conviction, there can be revealed no more than that which the trial court found in making its finding of fact. That which the trial court found on this subject is that which the petitioner contends.
The finding of the trial court in petitioner’s postconvielion proceedings was that the subject of the 1944 conviction was solely an evidentiary matter in the 1956 habitual criminal conviction.
' The habitual criminal statute provides for an augmentation of penalty for the last conviction of a repetitive offender. Huth v. Maxwell (1964), 176 Ohio St. 360. Petitioner can raise the question which he presents here only in proceedings involving a direct attack upon the 1944 judgment of conviction. Maloney v. Maxwell, supra (174 Ohio St. 84). In Maloney, this court held that habeas corpus was not the proper proceeding for a review of one of the convictions upon which the habitual criminal case was based. I do not interpret that to mean that a remedy, other than habeas corpus, is available to a petitioner to get aside ope of the cop/viptions upon which the hqbitq.pl *51criminal sentence was based. The Maloney case indicated that an attack upon one of the convictions upon which the habitual criminal case was based had to be a direct attack, by way of an appeal from the judgment of conviction, in which the defendant could raise specific constitutional issues as to his conviction.
Petitioner’s rights in this case under the Posteonvietion Remedy Act (R. C. 2953.21 et seq.) are limited to the burglary and larceny charge upon which he was convicted in 1956. His claim as to violation of constitutional rights and to set aside the 1944 conviction involve issues which must be raised directly in that case. The introduction in evidence in the habitual criminal case of proof of the 1944 conviction was solely to show that defendant had been adjudged a prior offender.
Based upon the facts and the law presented in this appeal, I would affirm the judgment of the Court of Appeals.
Schneider, J., concurs in the foregoing dissenting opinion.