Opinion
No. 4798
Decided May 18, 1953.
Criminal law — Pleas — Withdrawal or substitution of — Discretionary with court — Omission in journal entry effecting substitution of pleas — Supplied nunc pro tunc — Proceeding on plea of insanity — Inquiry into sanity of accused — Section 13441-1, General Code, applicable where present sanity questioned — Incarceration in Lima State Hospital — Sections 13441-3 and 13441-4, General Code, inapplicable, when.
1. It is within the discretion of the court, in a criminal prosecution, to permit the withdrawal or substitution of pleas by the accused.
2. Where, in a prosecution for murder in the first degree, the record of the proceeding discloses clearly that the accused and his counsel appeared in open court and with the consent of the prosecuting attorney and the approval of the court withdrew pleas of "not guilty," and "not guilty, by reason of insanity" and entered a plea of guilty of murder in the second degree under which such accused was sentenced, and where the journal entry effecting such substitution of pleas recites that the accused withdrew the plea of "not guilty" and omits to recite that the accused withdrew the plea of "not guilty, by reason of insanity," such omission may be supplied nunc pro tunc.
3. Under such circumstances, where the accused was never brought to trial on the plea of "not guilty, by reason of insanity," Sections 13441-3 and 13441-4, General Code, which provide for incarceration in Lima State Hospital of an accused acquitted under a plea of not guilty by reason of insanity and that such accused shall not be released therefrom until it is determined after notice and hearing that such accused's sanity is restored, are without application.
4. Section 13441-1, General Code, which provides for inquiry into the sanity of one accused of a crime, the prosecution for which is pending in the Common Pleas Court, applies where the present sanity of the accused is under investigation.
IN HABEAS CORPUS: Court of Appeals for Franklin county.
Mr. William R. Brofman and Mr. Joseph J. LoPresti, for petitioner.
Mr. C. William O'Neill, attorney general, and Mr. Thomas R. Lloyd, for respondents.
The petitioner instituted an action in habeas corpus in this court, seeking to be released from the Ohio Penitentiary. Petitioner was indicted for murder in the first degree. A plea of "not guilty" and "not guilty, by reason of insanity" was entered at the time of arraignment. The court appointed counsel to represent the petitioner, and ordered him committed to the Lima State Hospital for observation. The court held no hearing and made no order respecting the sanity of petitioner. Five months later, the petitioner and his counsel appeared in open court and represented to the court that petitioner desired to withdraw his former plea and enter a plea of guilty to a charge of second degree murder on condition that the charge of murder in the first degree would be nolled. This was recommended by the prosceutor, and accepted and approved by the court. To the charge of first degree murder, an order of nolle prosequi was entered. A plea of guilty to second degree murder was entered, and the petitioner was sentenced.
The journal entry shows a withdrawal of the plea of "not guilty" but fails to recite that petitioner withdrew his plea of "not guilty, by reason of insanity." Petitioner now contends that the court was without jurisdiction to sentence him, there having been no hearing as contemplated by Section 13441-1, General Code, and no finding on the part of the court that the petitioner was sane. Section 13441-1, General Code, applies where it is claimed the defendant is "then" insane. Such is not the situation here. Sections 13441-3 and 13441-4, General Code, have no application, since the petitioner was never brought to trial under Section 13441-3, General Code.
The withdrawal of a plea is a well-recognized practice in Ohio, and lies within the sound discretion of the court. 12 Ohio Jurisprudence, 262 to 264, Sections 249, 251.
We have before us a complete record of the proceedings which took place in open court at the time the plea was withdrawn and a new plea entered. Unquestionably, the record discloses that the plea of "not guilty, by reason of insanity" was legally and properly withdrawn with court approval. Counsel for petitioner was careful to advise the trial court that this plea, as well as the plea of "not guilty," was withdrawn. The court had jurisdiction to proceed to sentence the petitioner on the new plea. The judgment entry does not completely recite the action of the trial court, and should be modified by a nunc pro tunc order.
Since we find that the court had jurisdiction in the criminal prosecution, the petitioner is not entitled to be released from custody.
Petitioner remanded to custody.
WISEMAN, P. J., MILLER and HORNBECK, JJ., concur.