
    STATE, v. EVOLA et. STATE v. DEMKOWITZ.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23490, 23491.
    Decided November 23, 1955.
    Frank T. Cullitan, County Pros., Cleveland, for plaintiff-appellee.
    Anthony C. Carlin, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, J:

These appeals come to this Court on questions of law from the judgment and sentence of the defendants by the Court of Common Pleas entered February 9, 1955. It is the claim of the defendants that they have not been afforded due process of law as shown by the transcript of the docket and journal entries.

All defendants were indicted for grand larceny. Upon arraignment they entered pleas of not guilty. On December 9, 1954, all defendants, in open court, withdrew their pleas of not guilty and entered pleas of guilty as charged. The court then passed the cases for sentence and referred the defendants to the Probation Department for investigation and report.

On January 7, 1955, the journal of the court shows that the defendants were brought before the court and upon inquiry as to whether or not they had anything to say why judgment should not be pronounced against them, and they, severally answering in the negative were then sentenced by the court to the Ohio Penitentiary.

On January 12th, 1955, the court as appears by the journal, vacated the entry of judgment and sentence, and further declared:

“And now the Court hereby permits the defendants herein to withdraw their pleas of guilty to the indictment and to reenter pleas of not guilty.”

Thereafter, on February 9, 1955, without the entry showing that the defendants were brought before the court or consented to the entry made, the court, acting on its own motion, spread an entry on the journal as follows:

“It is ordered by the Court that entries of January 7, and 12, be and the same are hereby vacated and set aside, and the voluntary pleas of guilty of both defendants herein are re-instated. Exceptions.

“Therefore, it is ordered and adjudged by the court that defendants August J. Scalia and Frank Evola be imprisoned and confined in the Ohio Penitentiary, Columbus, Ohio, for indeterminate periods, and that they each pay the costs of this prosecution, for which execution is awarded. Exceptions.”

(A similar entry is found in the transcript in the Demkowitz case.)

The defendants were thereafter committed to the Ohio Penitentiary where they are now confined.

After defendants have been granted the privilge of withdrawing their pleas of guilty and to reenter pleas of not guilty, and such pleas of not guilty have been journalized, a court is without authority to vacate and reestablish prior pleas of guilty without the consent of the defendants made in open court.

We hold that judgment and sentence of the defendants, as shown by the transcript, violated the constitutional rights of the defendants in that they were not afforded due process of law and for that reason the entry of February 9th, whereby pleas of guilty were reentered by the court without the consent of the defendants and the defendants sentencd to the Ohio Penitentiary, is reversed and the cause remanded for further proceedings according to law.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.  