473 N.E.2d 837 | Ohio Ct. App. | 1984
Defendant-appellant, Reba Dickey, appeals her conviction in Cuyahoga County Common Pleas Court for carrying a concealed weapon in violation of R.C.
On the date set for trial, after defendant submitted her plea but prior to the court's acceptance thereof, the prosecutor recited the evidence he expected to present on behalf of the state if the case had gone to trial. The prosecutor stated that the evidence would show that Dickey was waiting in line at a checkout register at a store when the incident in question occurred. When she dropped her purse, a gun inside discharged and a bullet struck a woman next to her. An employee who worked at the cash register witnessed the entire incident. She also saw a police officer approach Dickey after the gun discharged and remove a gun from her purse. Dickey also made a statement admitting that the purse from which the gun was retrieved was hers. The court found defendant guilty of carrying a concealed weapon and deferred sentencing pending a presentence investigation report. Prior to the sentencing hearing defendant's new counsel moved to withdraw the plea. Defendant submitted an affidavit with the motion which stated that her former attorney had not told her that any defense was available to the charge. Defendant further stated that she had purchased the gun to protect herself because she had been attacked and threatened by an acquaintance. The trial court denied the motion and sentenced defendant according to law.
"The trial court abused its discretion in failing to allow appellant to withdraw her no contest plea prior to sentencing."
Appellant contends the trial court erred in denying her motion to withdraw because it failed to advise her that R.C.
Crim. R. 32.1, concerning the withdrawal of a guilty plea, states:
"A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."
The decision of whether or not to allow a defendant to withdraw his or her plea of guilty or no contest is a matter within the sound discretion of the trial court. State v. Smith (1977),
The court in State v. Peterseim (1980),
In State v. Chambers (Jan. 13, 1977), Cuyahoga App. No. 35285, unreported, at 9, 10, this court held that:
"* * * Crim. R. 11(C)(2)(a) requires that the trial court determine that the accused understands `the nature of the charge' against him. R.C.
"In view of our reasoning above, we cannot say that the record clearly establishes that appellant intentionally, knowingly, and intelligently relinquished or abandoned his rights to trial to a jury. Appellant therefore did not knowingly, understandingly and voluntarily enter his plea of no contest to the charge of carrying a concealed weapon." Cited with approval in State v.Johnson (Nov. 23, 1977), Cuyahoga App. No. 36619, unreported.
In the instant case appellant entered her plea without knowledge of the statutorily created affirmative defenses to the charge. At the time of her plea the offense of carrying a concealed weapon was a non-probationable offense under R.C.
Judgment reversed and cause remanded.
DAY, C.J., and ANN MCMANAMON, J., concur.
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