¶1 dissenting.
¶2 {¶ 37} I respectfully dissent.
¶3*10 {¶ 38} With respect to appellant’s first assignment of error, the trial judge in this instance navigated this mentally impaired defendant through a colloquy based upon his understanding of the case law. Appellant may have received a good benefit of the bargain and may not have experienced fraud perpetrated upon her by her attorneys. She may not have “lied” to the court. The trial judge was quite able to navigate and lead her to believe that she had no other choice but to plead and led her directly into the necessary admission that she had a change of heart after the fact, which as a lone factor is an inadequate basis for granting a motion to withdraw a guilty plea. State v. Ready, 11th Dist. No. 2001-L-150, 2002-Ohio-7138, 2002 WL 31862201, at ¶ 28. Howevei", I stress that appellant had an IQ of 73. Being mentally retarded or having a mental illness is not, in itself, enough to support a claim of incompetence. In re J.J., 9th Dist. No. 21386, 2004-Ohio-1429, 2004 WL 574135, at ¶ 31. In fact, in the instant matter, appellant was found to be competent. However, her IQ placed her within the mental-retardation range.
¶4 {¶ 39} “An appellate court will review the trial court’s determination of the Crim.R. 32.1 motion for an abuse of discretion.” State v. Desellems (Feb. 12, 1999), 11th Dist. No. 98-L-053, 1999 WL 753996, at 8, citing State v. Blatnik (1984), 17 Ohio App.3d 201, 202, 17 OBR 391, 478 N.E.2d 1016. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Desellems, supra, at 8, citing State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167. Regarding this standard, I recall that the term “abuse of discretion” is one of art, essentially connoting judgment exercised by a court that comports neither with reason nor the record. State v. Ferranto (1925), 112 Ohio St. 667, 676-678, 148 N.E. 362.
¶5 {¶ 40} The withdrawal of a guilty plea is about withdrawing an admission to the crimes of which one has been accused and reasserting one’s constitutional right to a trial and to make the state prove its burden of proof as to each element of the crime beyond a reasonable doubt. There is a compelling argument that this appellant may not have the requisite intelligence to participate knowingly in a conspiracy. A withdrawal of plea before sentencing is to be freely allowed. Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715. The pressure she felt to admit the crime and plead guilty, preadmission, not postadmission, may have been due to the fact that she was claiming innocence or that she wanted a trial or wanted to proceed pro se, all of which are legitimate bases to withdraw a plea. These were never inquired into by the trial judge. All of the professionals present knew of her limited intelligence, and although not dispositive in itself, it goes to the issue of a voluntary and knowledgeable plea. From the record it appears as if a trial in this matter may not have been in appellant’s best interest. This, however, is *11 not our concern, as the court is not her guardian. A request to withdraw a presentence plea seven days after it is taken, with the understanding that appellant’s trial would not occur until after her federal charges were concluded, is not unreasonable, nor would it place any undue burden on the trial court or the state.
¶6 {¶ 41} Based on the record, I believe that appellant was represented by highly competent attorneys, she was afforded a full hearing pursuant to Crim.R. 11, and she was given an opportunity to answer the questions asked by the trial court for the basis of the Crim.R. 32.1 motion. However, this is not relevant to a timely request to withdraw a plea. I do not believe that the trial court gave the necessary consideration to appellant’s motion, due to her low IQ and the fact that she felt she was pressured by her attorneys to plead guilty preplea not postplea. Thus, all of the Peterseim factors were not met.
¶7 {¶ 42} In addition, the trial court accepted appellant’s guilty plea on December 7, 2006. On December 14, 2006, appellant filed a pro se motion to withdraw her guilty plea, stating that she felt that her counsel had misrepresented her. Given the circumstances here, a seven-day time span between the entry of the guilty plea and the filing of the motion to withdraw it is not unreasonable. See State v. Arden (May 21, 1993), 4th Dist. No. 543, 1993 WL 183496, (holding that 28 days between the appellant’s plea and his motion to withdraw was not an unreasonable length of time).
¶8 {¶ 43} Based on the foregoing, this writer believes that the trial court abused its discretion by denying appellant’s Crim.R. 32.1 motion. I believe that the trial court abused its discretion and I fail to see, given the circumstances in this case, that the majority would ever find in this case a withdrawal of a plea as being an abuse of discretion when the trial court’s denial does not comport with reason or the record. It is clearly an abuse of discretion. Thus, I believe that appellant’s first assignment of error has merit.
¶9 {¶ 44} Regarding appellant’s second assignment of error, this writer concludes that there is sufficient information in the record that does not substantiate a knowing waiver. The trial court erred by failing to dismiss counsel at sentencing; however, that error would be harmless given this dissent’s disposition of appellant’s first assignment of error. Thus, I believe, as does the majority, that appellant’s second assignment of error is without merit.
¶10 {¶ 45} With respect to her third assignment of error, based on the foregoing disposition of appellant’s first assignment of error, I believe it should be rendered moot.
¶11 {¶ 46} Thus, I believe that appellant’s first assignment of error has merit, her second assignment of error is not well taken, and her third assignment of error is *12 moot. I believe the judgment of the Lake County Court of Common Pleas should be affirmed in part and reversed in part, and the cause should be remanded for further proceedings consistent with this opinion.