This is an appeal filed pursuant to Section 2953.23, Revised Code.
Appellant, an inmate of the Ohio Penitentiary, filed a petition for postconviction relief under Section 2953.21, Revised Code. The petition alleges that appellant pled guilty to an indictment for armed robbery without having counsel and being under the impression that he would have to conduct his own defense. He further alleges that the trial court failed to advise him of his right to counsel.
Original documents from case No. 37224 on the criminal docket of Franklin County have been included in the file prepared by the Common Pleas Clerk of Courts. An examination of those documents shows an entry of a plea of guilty. There is nothing to indicate an appointment of counsel, and there is *Page 136 nothing to indicate that appellant was advised of his right to counsel.
The Common Pleas Court set the petition for hearing and appointed Mr. H. Alfred Glascor as attorney for appellant. At the hearing, the attorney stated appellant's basic contention, i.e., that he did not have, and was not advised of his right to, counsel when he pled guilty in 1958. In response to this statement of the attorney, the hearing judge observed that he himself had been the presiding judge in the criminal case, "and I asked him, as I do all of them, if he had an attorney." At this point, appellant interjected a statement that he did not recall being asked if he wanted an attorney, and stated that he was not advised of his right to one. A colloquy ensued between appellant and the judge. In essence, appellant maintained he had not been advised and the judge insisted that appellant had been asked if he wanted an attorney and had said no. Thereupon, the hearing was terminated. At no time was the appellant sworn to give testimony. No evidence by way of stipulation or otherwise was presented.
The petition alleges grounds for postconviction relief under Section 2953.21, Revised Code. The record of the original criminal proceedings does not fully rebut the allegation. Accordingly, in our opinion, appellant was entitled to an evidentiary hearing in which he would be provided an opportunity to prove his allegations.
Further, the court did not make findings of fact and conclusions of law as required by Section 2953.21, Revised Code. In that connection, we observe that any finding of fact must be supportable upon evidence duly admitted and portrayed on the record.
The order of the Common Pleas Court will be reversed and the cause remanded for further proceedings.
Judgment reversed.
DUFFY, J., concurs.