State v. Peterseim

Decision Date30 May 1980
Citation22 O.O.3d 341,68 Ohio App.2d 211,428 N.E.2d 863
Parties, 22 O.O.3d 341 The STATE of Ohio, Appellee, v. PETERSEIM, Appellant. *
CourtOhio Court of Appeals

Syllabus by the Court

1. Although a motion to withdraw a guilty plea, filed after sentence has been imposed, should be granted only to correct manifest injustice, a motion to withdraw filed before sentencing should be freely allowed.

2. Appellate review of a trial court's denial of a motion to withdraw is limited to a determination of abuse of discretion, regardless whether the motion to withdraw is filed before or after sentencing.

3. A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.

John T. Corrigan, Pros. Atty., for appellee.

Michael F. Boller, Sidney, and Mr. John R. Vintilla, Cleveland, for appellant.

CORRIGAN, Judge.

On February 28, 1978, defendant-appellant, William T. Peterseim, was indicted for one count of aggravated murder (R.C. 2903.01), three counts of attempted murder (R.C. 2903.02 and 2923.02), one count of obstruction of justice (R.C. 2921.32) and one count of tampering with evidence (R.C. 2921.12). On July 31, 1978, appellant entered a negotiated plea of guilty to one count of voluntary manslaughter (R.C. 2903.03), three counts of felonious assault (R.C. 2903.11) and one count of tampering with evidence (R.C. 2921.12). Before accepting the guilty plea, the trial court extensively questioned appellant, his attorneys and the prosecutor, and, in so doing, ascertained that appellant entered his plea voluntarily, that he understood the nature of the charges against him and the nature of the crimes to which he was pleading guilty, and that he was aware that he was waiving his constitutional and statutory rights.

On September 14, 1978, six weeks after the court accepted his guilty plea, appellant retained new counsel and filed a motion to withdraw the plea. Appellant admitted that the plea was "freely and voluntarily made, with no coercion, threats or promises", but asserted that he pled guilty only because he respected the advice of his attorneys and not because he personally felt guilty. While appellant admitted that his attorneys' advice was sound, he nevertheless contended that "his abiding certainty of innocence demands that he stand trial".

On September 26 and 27 of 1978, the trial court conducted a lengthy hearing on the motion to withdraw. At the conclusion of the hearing the court overruled appellant's motion, found him guilty and sentenced him to seven to twenty-five years imprisonment for voluntary manslaughter, three concurrent terms of two to fifteen years imprisonment for the felonious assaults and two to ten years imprisonment for tampering with evidence. The court directed that the terms for voluntary manslaughter, tampering with evidence, and the felonious assaults were to run consecutively. On appeal appellant assigns two errors for this court's review:

"I. The court abused its discretion in refusing defendant the opportunity to withdraw his guilty pleas prior to sentencing.

"II. The court abused its discretion in the sentence imposed on defendant."

I.

In his first assignment of error appellant contends that the trial court abused its discretion in denying his pre-sentence motion to vacate. Neither party has cited, and this court has not found, any Ohio case discussing the standard for evaluating pre-sentence guilty plea withdrawal under Crim.R. 32.1. However, the language of that rule is nearly identical 1 to that of Fed.R.Crim.P. 32(d), and we, consequently, can refer to the federal cases for direction in this case.

The rule states that post-sentence plea withdrawal will be permitted only "to correct manifest injustice", but makes no such limitation on pre-sentence plea withdrawal. Consequently, it can be seen that the standards for permitting pre-sentence plea withdrawal are different than those for permitting withdrawal after sentencing has occurred. 2 In Kadwell v. United States (C.A. 9, 1963), 315 F.2d 667, the court distinguished between pre-sentence and post-sentence plea withdrawal, holding that the rule required free allowance of leave to withdraw in the pre-sentence situation. The court based this holding on practical considerations:

" * * * Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. * * * " (Emphasis sic and footnote omitted.) Id., at 670. Accord, Barker v. United States (C.A. 10, 1978), 579 F.2d 1219, 1223; United States v. Roberts (C.A.D.C., 1977), 570 F.2d 999, 1008; United States v. Read (C.A. 9, 1976), 534 F.2d 858, 859.

Nevertheless, despite the more lenient standard applicable to pre-sentence motions, an appellate court will only reverse a denial of leave to withdraw when the trial court has abused its discretion. Thus, in Barker v. United States, supra, the court stated:

"Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, * * * still the decision thereon is within the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. * * * " (Citations omitted.) Id., at 1223. Accord, United States v. Barker (C.A.D.C., 1975), 514 F.2d 208, 220, certiorari denied (1975), 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682; United States v. Arredondo (...

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