Parma v. BuckwaldParma v. Buckwald
Dale M. Hartman
2195 South Green Road
University Heights, Ohio 44121
ATTORNEYS FOR APPELLEE
Timothy G. Dobeck
Law Director/Chief Prosecutor
By: Karl R. Wetzel
Senior Assistant Law Director
City of Parma
5555 Powers Boulevard
Parma, Ohio 44129
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Defendant-appellant, Ralph Buckwald, appeals from a judgment convicting him of driving under suspension and contempt for failure to appear for court. Finding merit to the appeal, we reverse and remand.
{¶ 2} On August 21, 2008, a complaint for contempt (Case No. 08 CRB 03429) was issued against Buckwald for failure to appear for court on October 11, 2006 in Case No. 06 TRD 05403. In the 2006 case, Buckwald had been charged with five traffic offenses under Parma Codified Ordinances (“PCO”): driving under suspension, in violation of PCO 335.08; failure to wear a safety belt, in violation of PCO 337.295; failure to signal a lane change, in violation of PCO 331.08; failure to yield right of way, in violation of PCO 331.22; and driving without an operator’s license, in violation of PCO 335.01. After he failed to appear for a pretrial in October 2006, a warrant was issued for his arrest.
{¶ 3} On September 30, 2008, Buckwald pled no contest to the contempt charge in Case No. 08 CRB 03429 and pled no contest to driving under suspension in an amended complaint in Case No. 06 TRD 05403; the other four charges were dismissed.
{¶ 4} The trial court sentenced Buckwald to 30 days in jail on the contempt, suspended the 30 days, and ordered him to pay a fine of $100 plus costs. The trial court further sentenced him to 180 days in jail for driving under suspension, suspended the 180 days, ordered him to pay a fine of $1,000 plus costs, and further ordered that he be placed on probation for 36 months.
{¶ 6} “The proceedings below were defective in that the court erred in violation of
Trial Court’s Acceptance of a Plea
{¶ 7} A trial court’s obligations in accepting a plea depend upon the level of offense to which the defendant is pleading. State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, ¶25. For a petty offense, defined in
{¶ 8} The procedure set forth in
{¶ 9} It is clear that in all cases, i.e., petty misdemeanor offenses, serious misdemeanor offenses, and felonies, the judge must inform the defendant of the effect of his or her plea. Watkins at ¶26.
Petty Misdemeanor Offenses
{¶ 10} Buckwald was convicted of contempt for failure to appear, which is a fourth degree misdemeanor, and driving under suspension, which is a first degree misdemeanor. Buckwald claims that driving under suspension is a “serious misdemeanor offense,” and therefore the trial court had to comply with Traf.R. 10(C). We disagree.
{¶ 11}
{¶ 13} “In misdemeanor cases involving petty offenses, except those processed in a traffic violations bureau, the court may refuse to accept a plea of guilty or no contest and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”
{¶ 14}
{¶ 15} “In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”
{¶ 16} Since Buckwald’s convictions were petty misdemeanor offenses, the rules governing the trial court’s acceptance of his pleas are governed by Traf.R. 10(D) and
The Effect of a Plea
{¶ 18} “The plea of no contest is not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged in the complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.” Traf.R. 10(B)(2).
{¶ 19} “The plea of no contest is not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.”
{¶ 20} In Watkins, supra, the Ohio Supreme Court clarified that all that is required of a trial judge before accepting a plea to a petty misdemeanor offense under Traf.R. 10(D) and
{¶ 21} In State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, the Ohio Supreme Court interpreted the meaning of the “effect of the plea.” It specifically addressed the question, “[w]hether a trial court complies with
{¶ 22} The Supreme Court stated that its prior cases “suggest” that
Buckwald’s Plea Hearing
{¶ 23} The transcript of Buckwald’s plea hearing reveals that the trial court failed to inform him of the effect of his no contest pleas. After the court asked Buckwald if he understood the plea agreement offered by the prosecutor in the 2006 case, the following colloquy took place.
{¶ 24} “THE COURT: Okay. Same questions go to you. Are you presently under the influence of any drugs or alcohol?
{¶ 25} “MR. BUCKWALD: No Your Honor.
{¶ 27} “MR. BUCKWALD: No Your Honor.
{¶ 28} “THE COURT: Do you understand that by admitting you’re giving up your constitutional rights to go to trial to cross-examine witnesses, to summon or subpoena your own witnesses and to testify on your own behalf if you choose to testify; do you understand all that?
{¶ 29} “MR. BUCKWALD: Yes Your Honor.
{¶ 30} “THE COURT: The city of Parma has the burden of proving his case beyond a reasonable doubt. By entering the plea today you’re giving up that right; do you understand that?
{¶ 31} “MR. BUCKWALD: Yes Your Honor.
{¶ 32} “THE COURT: This is a first degree misdemeanor, maximum fine and penalty is six months in jail, $1000 fine; do you understand that?
{¶ 33} “MR. BUCKWALD: Yes Your Honor.
{¶ 34} “THE COURT: Any questions of your attorney at this time?
{¶ 35} “MR. BUCKWALD: No Your Honor.
{¶ 36} “THE COURT: Do you understand everything that’s happening this afternoon?
{¶ 37} “MR. BUCKWALD: Yes he went over it extensively Your Honor.
{¶ 38} “THE COURT: Okay, very good. Then I will ask you your plea to the one count driving under suspension.
{¶ 40} Regarding the contempt charge in the 2008 case, the trial court stated, “Your contempt * * * is for failure to appear, * * * you had a court hearing here and you didn’t show up.” Buckwald agreed that was true. The court then asked, “How do you want to plead to that one?” Buckwald replied, “plead no contest.” Buckwald then tried to explain to the court why he missed the court date. The trial court then imposed its sentence.
{¶ 41} After reviewing the record, it is clear that Buckwald was informed of the constitutional rights he was waiving by entering a plea instead of proceeding with a trial, he was further told the maximum penalty that could be imposed, and he was asked whether he understood what he was doing – all of which the trial court was not required to do. The trial court, however, failed to inform Buckwald of the effect of his no contest pleas as required by Traf.R. 10(D) and
{¶ 42} The Supreme Court held in Jones that a trial court may advise a defendant of the language of
The Requirement to Show Prejudice
{¶ 43} The city argues that Buckwald did not suffer any prejudice as a result of the trial court’s failure to inform him of the effect of his no contest pleas. Indeed, in Jones, although the Ohio Supreme Court acknowledged that the trial court committed clear error, the court also concluded the error did not involve a constitutional right. Id. at ¶52. For that reason, the error was not reversible without a showing of prejudice. Id. Prejudice, in this context, means that the plea would not otherwise have been made but for the trial court error. Id. Jones did not allege any prejudice from the trial court’s failure to tell him that a guilty plea amounts to a complete admission of guilt, and he never claimed that he was innocent. Thus, the Supreme Court determined that he was not prejudiced by the trial court‘s failure to comply with
{¶ 44} More recently, however, in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, the Ohio Supreme Court explained:
{¶ 45} “When the trial judge does not substantially comply with
{¶ 46} Here, there was a “a complete failure to comply with the rule” on the part of the trial court because the trial court failed to mention any of the language in Traf.R. 10(B)(2) or
{¶ 47} We note that Buckwald raises several pro se assignments of error. Since we are vacating his pleas, however, his pro se arguments are moot.
{¶ 48} Buckwald’s pleas are vacated. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
It is ordered that appellant recover of 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 Parma Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, JUDGE
COLLEEN CONWAY COONEY, A.J., and CHRISTINE T. McMONAGLE, J., CONCUR