N. Randall v. WithrowN. Randall v. Withrow
Robert Tobik
Chief Public Defender
BY: David M. King
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Leonard A. Spremulli
29325 Chagrin Blvd.
Suite 305
Pepper Pike, OH 44122
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Dennis Withrow appeals his plea and sentencing by the Bedford Municipal Court. For the reasons set forth herein, we reverse and rеmand.
{¶ 2} On October 1, 2009, appellee village of North Randall (“North Randall“) charged Withrow with assault, in violation of
{¶ 3} After several continuances at Withrow‘s request, a pretrial was scheduled before a magistrate on November 3, 2009. On that date, with counsel present, Withrow either entered a no contest plea to the charge of assault, or at a minimum, worked out an agreement tо plead no contest at a later date before the trial judge. We are uncertain about what exactly took place at the November 3 pretrial because no transcript was ever made of this proceеding.1
{¶ 4} At the time of the November 3 hearing, a document captioned “pretrial agreement form” was created that memorialized the terms of a plea in writing. The form was signed by Withrow, his attorney, and the magistrate. It contained a check mark by Withrow in a place provided indicating the plea was accepted. The form referenced the charge of assault under
{¶ 5} There was no reference on this form that Withrow‘s plea was knowingly, intelligently, and voluntarily made, nor was there any reference advising Withrow of the effect of his plea. Further, there wаs no reference to the maximum sentence or the range of potential penalties. Following this hearing, the docket reflects a subsequent court date was set for December 3, 2009, before one of the judges of the court.
{¶ 6} On November 20, 2009, the record shows a motion2 by Withrow requesting a continuance of the December 3 court date. In his motion, Withrow acknowledged that he had already pleaded no contest in his case and was prepared to pay court costs. The court rescheduled the hearing before a trial judge for December 17, 2009.
{¶ 7} On December 17, Withrow appeared before the trial judge for what the docket characterizes as a “change of plea” hearing. There is no explanation in the record for why this was called a change of plea hearing where the record shows Withrow had already pleaded and been sentenced. In any event, the following exchange constitutes the entirety of the hearing with the trial court:
“Court: All right. We‘re here for a change of plea today. How do you wish to plead to the charge of assault.
Defense counsel: You‘re [sic] honor, Mr. Withrow will enter a plea of no contest. We will stipulate and consent to а finding of guilt and we‘ll waive reading.
Court: Thank you.
Defense counsel: You‘re welcome.
Court: On his plea, finding is guilty: 500 and cost, 30 days in jail. Jail and fine are suspended providing he is to be on six months active probation and no criminal offenses charged, to complete a course of anger management, to comply with all standard conditions of probation.
All right, sir. Go with the Bailiffs, fill in the forms for probation. They will tell you what to do.
Defense counsel: Thank you, your honor.”
{¶ 8} The record reflects that Withrow paid all outstanding court costs.
{¶ 9} Withrow filed a notice of appeal, raising оne assignment of error for our review. It provides, “The trial court erred when it did not advise Dennis Withrow as to the affect [sic] of his plea in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution and
{¶ 10} Withrow contends that the trial court failed to comply with the mandates of
{¶ 11} This case requires us to review what is required for a viable plea in misdemeanor criminal offenses taken in the municipal courts.
{¶ 12} Withrow was charged with first degree misdemeanor assault under
{¶ 13} Pleas in petty offense cases are governed by
{¶ 14}
{¶ 15} Withrow cites to
{¶ 16} We agree with North Randall that our initial review should be directed at whether the magistrate complied with
{¶ 17}
{¶ 18} The form itself contains no
{¶ 19} In many instances we have presumed regularity in a trial court‘s actions in the absence of a transcript for review. “An appellant has the responsibility of providing the reviewing court with a record of the facts, testimony, and evidentiary matters that are necessary to support the appellant‘s assignments of error. In the absence of a complete record, an appellate cоurt must presume regularity in the trial court‘s proceedings.” (Internal citations omitted.) State v. Smith, Cuyahoga App. No. 94063, 2010-Ohio-3512, ¶ 11.
{¶ 20} Further we are not convinced that an
{¶ 21} We next look to the transcript of the hearing conducted beforе the trial judge on December 17 to determine if it contained an “explanation of the circumstances” for a no contest plea. As evidenced by the dialogue outlined earlier, this hearing failed to comply with the requirements of
{¶ 22} In the absence of evidence to the contrary, we find that the court failed to provide Withrow with an explanation of the circumstances of his no contest plea as mandated by
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal court to carry this judgment into execution. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandatе pursuant to
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR