State v. Grigsby ( 1992 )

I concur in the judgment rendered but I write separately to address a problematic aspect of this court's opinion in State v.Peterseim (1980), 68 Ohio App.2d 211, 22 O.O.3d 341,428 N.E.2d 863, which in turn presents additional problems in cases such as this where State v. Peterseim is relied upon.

Paragraph three of the syllabus of State v. Peterseim contains the following four-part test for determining whether a trial court has abused its discretion in overruling a motion to withdraw a guilty plea:

"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."

The court's opinion does not contain this four-part test, however. Rather, the opinion indicates, in relevant part as follows:

"In the present case, the trial court, both in its acceptance of appellant's guilty plea and in its subsequent consideration of appellant's motion to withdraw that plea, displayed patience and concern, and its carefully considered decision not to allow withdrawal must therefore be affirmed.

"The record reveals that, before accepting appellant's guilty plea, the court went to unusual lengths to make certain that appellant fully understood the nature and consequences of the plea. Moreover, there is no question the attorneys who negotiated the plea for appellant (and whose advice prompted appellant to accept the plea) were exceptionally qualified anddiligent. Finally, the trial court afforded appellant a full hearing on the motion to withdraw, permitting him to present any and all arguments in support of the motion. In light of these circumstances, we are unable to say that the court abused its discretion in not permitting plea withdrawal, and the first assignment of error is therefore overruled." (Emphasis added.)Id. at 214, 22 O.O.3d at 343, 428 N.E.2d at 865-866.

Thus, while the syllabus contains a test which may be conveniently applied, it is not actually the law pronounced by the court. Cf. Cassidy v. Glossip (1967), 12 Ohio St.2d 17, 41 O.O.2d 153, 231 N.E.2d 64, paragraph six of the syllabus (the syllabus of an opinion issued by the Supreme Court states the law of the case); Parkview Hosp. v. Hosp. Serv. Assn. of Toledo (1966), 8 Ohio App.2d 315, 315, 37 O.O.2d 359, 359,222 N.E.2d 314, 315 (there is no official syllabus in opinions rendered by courts of appeals, and the court's opinion, rather than the syllabus, expresses the law of the case).

Accordingly, while there is a disparity between the syllabus and opinion in State v. Peterseim, and this disparity has caused a degree of confusion, the law of the case is contained in the opinion, and not the syllabus. Further, under this analysis, counsel's diligence in the matter at hand is more important than counsel's general competence as perceived by the court, although the latter may be of some relevance in a given case.

As applied to this case, however, it is clear from the record that, under the guidelines set forth in the Peterseim opinion, the trial court did not abuse its discretion in refusing to vacate the plea. That is, the court patiently explained the nature and consequences of the plea, fully explained each of defendant's rights pursuant to Crim.R. 11, and ascertained defendant's understanding of each portion of the proceedings, including the sentences which could be imposed. Further, defense counsel exhibited a high degree of diligence as he obtained an acknowledgement from the court that under the court's prior pronouncements, defendant's continued participation in an undercover drug investigation was not required, and counsel also obtained concurrent sentences for the charges, after the court announced that consecutive sentences would be imposed.

Finally, as is apparent from the majority's citation to and reliance upon State v. Smith (1977), 49 Ohio St.2d 261, 264, 3 O.O.3d 402, 404, 361 N.E.2d 1324, 1326, and State v. Blatnik (1989), 17 Ohio App.3d 201, 202, 17 OBR 391, 392,478 N.E.2d 1016, 1018, consideration of the law as set forth in the syllabus of State v. Peterseim is not essential to the disposition of this matter and the cause is properly affirmed under the other relevant case law.