
    No. 896
    GERBER v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 6410.
    Decided May 10, 1926
    841. NEW TRIAL — Where accused pleads guilty to indictment under mistaken belief that by so doing he will be placed on probation, motion for a new trial should be granted.
    Attorneys — L. C. Tucker for Gerber; E. C. Stanton for State; both of Cleveland.
   PER CURIAM.

Abraham Gerber entered a plea of guilty to an indictment in the Cuyahoga Common Pleas. It seems that he was under the impression that following his plea of guilty, he would be placed upon probation; and that he would not have entered the plea of guilty were it not for such mistaken belief.

Gerber was sentenced to imprisonment in the penitentiary; and upon the motion for a new trial being overruled, error was prosecuted. The Court of Appeals held:

1. Following conferences had with counsel for Gerber and the members of the prosecuting attorney’s office, Gerber, on advice of his counsel, entered a plea of guilty with the assurance of said counsel that an agreement had been reached to the effect that in the event of a plea of guilty, he would be placed upon probation.
2. A plea under such circumstances can hardly be regarded as a voluntary plea; and in the interests of justice, Gerber should be given an opportunity to change his plea and present his defense.
3. It was clearly the duty of the trial court to grant a new trial under the circumstances and there was error in overruling the motion for a new trial.

Judgment reversed and cause remanded.  