State v. Newcome

577 N.E.2d 125, 62 Ohio App. 3d 619, 1989 Ohio App. LEXIS 3425

Opinion

Patton, Presiding Judge.

Defendant Robert Newcome seeks to withdraw his guilty plea to four counts of sexual battery. Defendant’s sole assigned error contends that he was denied effective assistance of counsel at the time he entered his plea because he was represented by counsel who was under suspension. We note that at the time of the plea none of the parties knew that defense counsel was under suspension. Further, the state of Ohio agrees with defendant that he should have the opportunity to withdraw his plea.

The post-sentence withdrawal of a guilty plea is available only to correct manifest injustice. Crim.R. 32.1; State v. Smith (1977), 49 Ohio St.2d 261, 264, 3 O.O.3d 402, 404, 361 N.E.2d 1324, 1326; State v. Peterseim (1980), 68 Ohio App.2d 211, 22 O.O.3d 341, 428 N.E.2d 863, paragraph one of the syllabus. Here, defendant has met his burden of establishing the existence of manifest injustice. Defendant did not receive his constitutional right to the assistance of counsel at the time he pled guilty because he was represented by counsel who was suspended from the practice of law. 1

Accordingly, defendant’s sole assignment of error is sustained.

This cause is reversed and remanded to the Court of Common Pleas for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Parrino and Wiest, JJ., concur. Thomas J. Parrino, J., retired, of the Eighth Appellate District, sitting by assignment. Mark K. Wiest, J., of the Court of Common Pleas of Wayne County, sitting by assignment.

1 . Defendant’s argument regarding ineffective assistance of counsel is moot because he did not receive his right to counsel in the first place.