CITY OF ASHTABULA, Plaintiff-Appellee, - vs - ROBERT A. JONES, Defendant-Appellant.
CASE NO. 2016-A-0053
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
March 27, 2017
2017-Ohio-1103
DIANE V. GRENDELL, J.
[Cite as Ashtabula v. Jones, 2017-Ohio-1103.] Criminal Appeal from the Ashtabula Municipal Court, Case No. 2016 CRB 00229. Judgment: Affirmed.
Robert A. Jones, pro se, 5520 Nathan Avenue, Ashtabula, OH 44004 (Defendant-Appellant).
O P I N I O N
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Robert A. Jones, appeals his conviction for Criminal Trespass in the Ashtabula Municipal Court. The issues before this court are: whether a court magistrate serving as acting judge may accept a defendant‘s no contest plea; whether the dismissal of a defendant‘s pro se motions at the request of appointed counsel renders a subsequent no contest plea invalid; whether a municipal court is required to obtain a written waiver of a defendant‘s right to a jury trial prior to accepting a no contest plea in a misdemeanor prosecution; whether a defendant may move to
{¶2} On February 8, 2016, a Complaint · Affidavit · Summons1 was filed in the Ashtabula Municipal Court, charging Jones with Criminal Trespass, a misdemeanor of the fourth degree in violation of
{¶3} On February 16, 2016, Jones appeared for arraignment. He entered a plea of not guilty, requested the appointment of counsel, and executed a written waiver of his speedy trial rights.
{¶4} On March 28, 2016, Jones filed, pro se, a Written Demand for Discovery, a Written Demand for Jury Trial, a Motion to Dismiss for Lack of Due Process, a Motion to Dismiss for Lack of a Speedy Trial, and a Motion to Dismiss for Lack of Subject Matter Jurisdiction.
{¶5} On April 5, 2016, a pretrial was held. Jones was advised that Attorney Rebecca Risley had been appointed to represent him and asked how he wished to proceed. Jones indicated he would accept appointed counsel to represent him.
{¶6} On August 23, 2016, Jones tendered a plea of no contest and waived the presentation of evidence. The municipal court, presided over by Acting Judge David Sheldon, made a finding of guilty and sentenced Jones to pay a fine of fifty dollars.
{¶7} On September 6, 2016, Jones filed a Notice of Appeal. On appeal, Jones raises the following assignments of error:
{¶8} “[1.] The court magistrate lacked authority to conduct the plea/sentencing hearing, and lacked subject-matter jurisdiction to render final judgment in violation of
{¶9} “[2.] Defendant-appellant‘s consent to strike his pro se motions from the record so court-appointed counsel could file the motions was not knowingly made and was procured through deception, in violation of
{¶10} “[3.] The municipal court judge committed prejudicial error in denying defendant-appellant‘s written demand for a trial by jury without a written waiver, in violation of
{¶11} “[4.] The municipal court judge committed prejudicial error in denying defendant-appellant‘s motion to dismiss on speedy trial grounds or to revoke his speedy trial waiver, in violation of
{¶12} “[5.] The municipal court judge committed prejudicial error in denying defendant-appellant‘s motion to dismiss for lack of subject-matter jurisdiction, in violation of
{¶13} “[6.] Defendant-appellant was constructively denied counsel, in violation of
{¶14} Under the first assignment of error, Jones argues that court magistrate, David Sheldon, lacked the authority to accept his plea and impose sentence because the case was never referred to a magistrate pursuant to Local Rule 6.
{¶15} Although Sheldon‘s position with the Ashtabula Municipal Court is that of magistrate, at the time of Jones’ plea and sentencing he was functioning as Acting Judge in the absence of Judge Laura DiGiacomo. By Journal Entry dated August 15, 2016, Judge DiGiacomo “appoint[ed] David Sheldon Acting Judge of said Ashtabula Municipal Court for the period of August 22, 2016, through August 26, 2016.” See
{¶16} Since Sheldon was not acting in his capacity as magistrate at the time of Jones’ plea and sentencing, referral pursuant to Local Rule 6 was unnecessary.
{¶17} The first assignment of error is without merit.
{¶18} In his second assignment of error, Jones maintains that his consent to dismiss his pro se motions was procured by deception. “Judge DiGiacomo procured Mr. Jones’ consent to strike his pro se motions on the basis that it‘s his attorney‘s job to
{¶19} Jones further maintains that Judge DiGiacomo and Risley had engaged in plea negotiations before he was even aware that Risley would be representing him. “The meeting [between Judge DiGiacomo and Risley] occurred in a closed room down the hall from the courtroom, and does not appear in the record, as it was not recorded * * *, but Mr. Jones’ mother, uncle, and grandfather were involved in, and witnesses to, these discussions.” Appellant‘s brief at 10.
{¶20} Assuming, arguendo, that Jones’ dehors-the-record allegations have merit, there has been no infringement of his constitutional rights. The municipal court struck Jones’ pro se motions at the April 5, 2016 pretrial. When Jones entered his plea four months later, he was aware that the motions had not been re-filed and would have been aware of any negotiations that occurred between Judge DiGiacomo and Risley. Despite this, Jones voluntarily entered a no contest plea. At that time the court inquired of Jones: “You‘ve had Ms. Risley as your attorney, are you satisfied with her, so far?” Jones responded: “Yeah.”
{¶21} “Generally, the failure to object waives the error and requires the aggrieved party to demonstrate prejudice.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 244. Similarly, the Ohio Supreme Court has held that judge participation in plea negotiations does not per se render a plea invalid unless “the judge‘s intervention affected the voluntariness of the defendant‘s guilty plea.” State v. Byrd, 63 Ohio St.2d 288, 293, 407 N.E.2d 1384 (1980).
{¶22} Jones has made no showing of prejudice or that the alleged plea negotiations influenced his decision to plead no contest.
{¶23} The second assignment of error is without merit.
{¶24} In the third assignment of error, Jones argues that the municipal court erred by accepting his “no contest” plea without first obtaining a written waiver of his right to a jury trial.
{¶25} “In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial.”
{¶26} Having pled not guilty and filed a demand for a jury trial, Jones maintains the municipal court was required to obtain a written waiver of the same before it could accept his no contest plea. Lima v. Rambo, 113 Ohio App. 158, 177 N.E.2d 554 (3d Dist.1960) (“[w]here a defendant in a criminal case in the Municipal Court has a right to trial by jury and pleads not guilty and demands a jury trial * * *, such court has no jurisdiction to proceed to trial without a jury unless such defe[n]dant waives such right to a trial by jury in the manner provided by Section 2945.05, Revised Code“). We disagree.
{¶27} The Ohio Supreme Court has held: “The provisions of Section 2945.05, Revised Code, requiring the filing of a written waiver of a trial by jury are not applicable where a plea of guilty is entered by an accused. The failure in such an instance to file a waiver does not deprive an accused of any of his constitutional rights nor does it deprive the court of its jurisdiction.” Martin v. Maxwell, 175 Ohio St. 147, 191 N.E.2d 838 (1963); State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 424, 662 N.E.2d 370 (1996)
{¶28} Accordingly, Ohio appellate courts have often held that a court may accept a plea of guilty or no contest without obtaining the written waiver mandated by
{¶29} The third assignment of error is without merit.
{¶30} In the fourth assignment of error, Jones contends the municipal court erred “in denying [his] motion to dismiss on speedy trial grounds * * * or revoke his speedy trial waiver * * * in an attempt to coerce a guilty plea.” Appellant‘s brief at 16.
{¶31} “It is well-settled law that an accused may waive his constitutional right to a speedy trial provided that such a waiver is knowingly and voluntarily made.” State v. King, 70 Ohio St.3d 158, 160, 637 N.E.2d 903 (1994). “Following an express, written
{¶32} Preliminarily, we note that Jones’ pro se Motion to Dismiss for Lack of a Speedy Trial was withdrawn upon the oral motion of Attorney Risley and with Jones’ consent at the April 5, 2016 pretrial. The Motion was not renewed and the issue was not raised at the time Jones entered his no contest plea. Compare Montpelier v. Greeno, 25 Ohio St.3d 170, 171, fn. 2, 495 N.E.2d 581 (1986) (“a defendant, whose pretrial motion to dismiss for failure to bring him to trial within the time frame of
{¶33} At Jones’ February 16, 2016 initial appearance for arraignment, the municipal court explained:
You have the right to, what‘s known as a speedy trial, meaning the State has so many days in which to try the case. However, if you wish to see if the case can be resolved before going to trial, you can sign a waiver of your speedy trial rights and the matter will be set for pretrial. A pretrial will give you an opportunity for your attorney or you to meet with the prosecutor in the case and see if it can be resolved.
{¶34} The municipal court addressed Jones directly and inquired whether he would “like an immediate trial or * * * a pretrial.” Jones indicated, “pretrial.” Thereupon,
I fully understand that my request [for a pretrial] may result in an extension of time beyond that provided for under O.R.C. 2945.71. I further acknowledge and waive my rights pursuant to O.R.C. 2945.71, 2945.72, and 2945.73, as well as the Federal and State Constitutional speedy trial provisions.
{¶35} Jones validly waived his speedy trial rights and raised no objection to the proceedings beyond the forty-five day period provided for in
{¶36} The fourth assignment of error is without merit.
{¶37} In the fifth assignment of error, Jones argues the municipal court lacked subject-matter jurisdiction.
{¶38} “Municipal courts are created by statute,
{¶39} “A misdemeanor may be prosecuted * * * by complaint * * * in courts inferior to the court of common pleas.”
{¶40} This court has held that, for a complaint to be valid under
{¶41} Jones challenges the Complaint · Affidavit · Summons initiating his prosecution in several respects.
{¶42} Jones claims the Complaint failed to allege that the offense occurred within the jurisdiction of the municipal court, since it identified the location of the offense as “YG.0.8 NS Railroad” in the City of Ashtabula. “By using GPS coordinate of YG.0.8, rather than an actual, physical address or identifiable location, the citation failed to allege that the offense occurred within the jurisdiction of the Ashtabula Municipal Court.” Appellant‘s brief at 18. We disagree.
{¶43} The Complaint properly establishes the jurisdiction of the municipal court by alleging that the offense occurred in the City of Ashtabula. Compare State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-2455, ¶ 20 (citation “alleg[ing] that the offenses occurred ‘between mm 41/mm 41.4 * * * in the city of Streetsboro in Portage County, State of Ohio‘” subjected the appellant “to both the territorial and subject matter jurisdiction of the court“). Whether “YG.0.8” is, in fact, within the territorial boundaries of
{¶44} Jones further claims that the “traffic citation [sic] included the wrong ordinance number, and [he] wasn‘t properly notified of the nature and cause of the charge.” Appellant‘s brief at 20.
{¶45} It is widely acknowledged that “[t]he primary purpose of the charging instrument in a criminal prosecution is to inform the accused of the nature of the offense with which he or she is charged.” Akron v. Holland Oil Co., 146 Ohio App.3d 298, 302-303, 765 N.E.2d 979 (9th Dist.2001). A valid complaint “must contain * * * ‘a written statement of the essential facts constituting the offense charged[,]‘” and “‘may be in the words of the applicable section of the statute, * * * or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged.‘” State v. Jones, 11th Dist. Ashtabula No. 2015-A-0068, 2016-Ohio-6987, ¶ 18, citing
{¶46} Here, the Complaint · Affidavit · Summons charged Jones with violating
{¶47} We find no defect in the charging instrument. The elements of Criminal Trespass and Railroad Vandalism are virtually identical, except that the latter charge qualifies “the land or premises of another” as “the land or premises of a railroad company.” Jones at ¶ 18 (“Crim.R. 3 does not require the complaint to track the language of the statute“). The Railroad Vandalism ordinance even describes a violation of subsection (d) as “criminal trespass on the land or premises of a railroad company.”
{¶48} Lastly, Jones claims that the Complaint failed to invoke the municipal court‘s subject matter jurisdiction because it was not made under oath and/or properly sworn to by the deputy clerk. “The face of the citation [sic] shows that a deputy clerk acknowledged that the citation was sworn to and subscribed before her on Saturday, February 6, 2016. Railroad Police Officer Joseph Hergenroeder signed the citation at the time of issuance, not in the presence of a deputy clerk.” Appellant‘s brief at 19.
{¶49} As noted above,
{¶50} Jones’ argument rests on a comparison of the Complaint · Affidavit · Summons issued to him in lieu of arrest and the Complaint · Affidavit · Summons filed in the municipal court. The copy issued to Jones contains the signature of Officer Hergenroeder in the jurat, as well as the date on which it was (or would be) sworn to by the officer. The filed copy is witnessed by the deputy clerk‘s signature, but otherwise contains the same signature by Officer Hergenroeder as did the summons copy. Jones contends that the Complaint is not valid since it does not appear to have been signed in the presence of the deputy clerk.4
{¶51} We disagree.
{¶52} As this court has recognized:
Crim.R. 3 does not contain any express reference to the presence of a jurat in a complaint; instead, as to the “oath” requirement, the rule only states that the complaint must be made under oath before a person who has the power to administer the necessary oath. As a general proposition, a jurat is merely a certificate which is intended to establish that the oath was duly administered by a duly authorized individual.
Davies, 2013-Ohio-436, at ¶ 24.
{¶53} The presence of Officer Hergenroeder‘s signature on the copy of the Complaint · Affidavit · Summons does not in any way suggest that the oath was not duly administered by the deputy clerk.
{¶54} The fifth assignment of error is without merit.
{¶55} Under the sixth and final assignment of error, Jones argues that he was deprived of constitutionally effective assistance of counsel before the municipal court. Jones argues that trial counsel had no interest in discussing the facts of his case with him and “asked to strike the motions from the record, because it‘s her job to file motions, yet, she had no intention of filing anything, and, on the City‘s behalf, rather than on Mr. Jones’ behalf, sat idly by until Mr. Jones gave up[,] submitted and pleaded no contest.” Appellant‘s brief at 22.
{¶56} To reverse a conviction for ineffective assistance of counsel, the defendant must prove “(1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”
{¶57} Initially, we note that, by pleading no contest, Jones has admitted the truth of the facts alleged in the complaint and thus cannot prevail on a claim of ineffective assistance of counsel. “This court has repeatedly held that ‘[a] plea of guilty or no contest waives any prejudice a defendant suffers arising out of his counsel‘s alleged ineffective assistance, except with respect to a claim that the particular failure alleged impaired the defendant‘s knowing and intelligent waiver of his right to a trial.‘” (Citation omitted.) State v. Bregitzer, 11th Dist. Portage No. 2012-P-0033, 2012-Ohio-5586, ¶ 17.
{¶58} Even allowing that Jones could demonstrate prejudice, we find no deficiency in counsel‘s performance. Jones has argued the substance of his pro se pre-trial motions on appeal under the previous assignments of error. As none of these assignments of error have been found to have merit, counsel‘s failure to re-assert them in the municipal court does not support a claim of ineffective assistance.
{¶59} The sixth assignment of error is without merit.
{¶60} For the foregoing reasons, Jones’ conviction for Criminal Trespass in the Ashtabula Municipal Court is affirmed. Costs to be taxed against the appellant.
THOMAS R. WRIGHT, J., concurs,
COLLEEN MARY O‘TOOLE, J., concurs in judgment only.