I concur in the opinion of the majority in this case in practically everything except the conclusion reached. In this respect I find myself in the position of Judge Stewart of the Supreme Court in the case of State v. Edwards, 157 Ohio St. 175, in which he concurred in paragraphs one, two, three, four, five and six of the syllabus, but dissented from the judgment.
In the first place, leave to appeal from a sentence entered upon a plea of guilty is an anomaly, except perhaps in the event that through inadvertence or mistake the sentence imposed is for a different crime than that to which the guilty plea was entered, neither of which is claimed here. The guilty plea and *Page 67 the sentence are both in strict conformity with Section 2901.13, Revised Code.
In the second place, I do not believe the provisions of Section 2947.05, Revised Code, are mandatory where the defendant has entered a guilty plea, because by its very provisions it specifies that, before sentence, the defendant must be informed of "the verdict of the jury, or the finding of the court," neither of which are involved here. This section originally included only "the verdict of the jury" (Section 13694, General Code, Page's Edition, 1920), and was later amended to include "or the finding of the court." The trial court could not comply with this section and inform the defendant of the "verdict of the jury" or the "finding of the court," for there had been none.
Everyone concerned now admits that the record is ambiguous and that the trial judge should have used words to this effect.
"Mr. Baker, your counsel has entered a plea of guilty for you to the crime of armed robbery. The Prosecuting Attorney has read to the court the definition of this crime which is simply stealing something of value from a person while you were armed with a pistol, and you have heard the prosecutor read the penalty prescribed by the laws of Ohio for this crime, which is imprisonment in the penitentiary for from ten to twenty-five years.
"Now, do you, James Baker, have anything to say as to why judgment should not be pronounced against you?"
However, we must take the record as we find it.
If the basis of the alleged error is that the trial judge, after saying, "Do you have anything to say?" stopped in the middle of a sentence which should have included, "as to why judgment should not be pronounced against you," then it is extremely technical and inconsequential. Since this court has found, and I agree, that the defendant was represented by counsel who had waived the reading of the indictment and most important of all entered a guilty plea, the defendant has in my opinion waived this technicality and is bound by the action of his counsel. No one would have expected the defendant to get up and say, "Judge, this is a delightful spring day we are having this 25th of March." But having just heard the Prosecuting *Page 68 Attorney read the definition of the crime and the penalty of 10 to 25 years in the penitentiary, the only matter of any immediate pertinency would be as to why sentence should not be pronounced. If, as he now claims, the defendant had a deal with the Prosecuting Attorney and the sheriff he would have jumped to his feet and would have said, "Judge, the Prosecuting Attorney and sheriff promised me if I plead guilty I would not get over four years."
If the basis of the alleged error is that the trial judge ignored the defendant and spoke only to his counsel it is based upon presumption. This is a very reasonable presumption, and I agree with it, because counsel answered the question immediately by saying, "Nothing to say, your Honor," and the Judge said, "the sentence is that he be confined," etc. However, we are here faced with a very old and time honored legal presumption. This presumption cannot be better stated than in the following, taken from 3 Ohio Jurisprudence (2d), 666, Appellate Review, Section 715:
"As to validity and regularity of proceedings below —
"In appeals on questions of law, all reasonable presumptions consistent with the record will be indulged in favor of the validity of the judgment or decision under review, and of the regularity and legality of the proceedings below. * * * The inference which the law raises is that every court does its duty and does right, and, unless the record shows something to the contrary, it will be presumed that the lower court acted wholly within the law, that the decree or judgment was made upon proper grounds, that the court below applied the law correctly, and that its action was justified.
"A state of facts which is repugnant to the judgment will not be presumed, but on the contrary all reasonable inferences tending to support it will be adopted, and if the record is ambiguous it will be given that construction which is most favorable to the judgment."
From all that appears from the record the judge could, and might, have addressed himself to the defendant personally. He could, and might, have looked directly at him, or even pointed his finger or gavel at him. In my opinion, the legal presumption must prevail over a presumption, however reasonable, made from the ambiguous record. *Page 69
We now come to the main reason and the impelling cause for my dissent in this case. In having his motion for leave to appeal sustained, the defendant has won a Pyrrhic victory. I agree with, and adopt, the words of Judge Hornbeck cited in the majority opinion that "this court has the widest discretion as to the propriety of granting a leave to appeal." I do not believe the leave to appeal is proper in this case as it will do the defendant more harm than good.
If the appeal is heard, it will in all probability result in a finding that error intervened and in a setting aside of the sentence and judgment. In such event, there is only one thing which this court can possibly do, and that is to remand to the Common Pleas Court for the sole and only purpose of resentencing the defendant as was done in Silsby v. State, supra, cited in the majority opinion and in State v. Ausberry, 83 Ohio App. 514.
Even if the defendant could obtain leave to withdraw his plea of guilty and enter a plea of not guilty, which I do not believe is possible, he has no chance to win as his attorney testified at the hearing herein that the possibility of putting on a successful defense in this case, or Gillespie's case, was never even discussed or considered. The chance of probation is a wild dream.
Upon resentence to the penitentiary, a date would be set for a hearing on parole six years and four months from date of entry under the new sentence, and the two years the defendant has served under his current sentence would be lost. The defendant could then very well paraphrase King Pyrrhus and say: "One more such a victory over the technicalities of the law and I am utterly undone." *Page 70