CITY OF SOLON v. ERIK BOLLIN-BOOTH
No. 97099
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 8, 2012
[Cite as Solon v. Bollin-Booth, 2012-Ohio-815.]
BEFORE: Keough, J., Celebrezze, P.J., and Kilbane, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Bedford Municipal Court, Case No. 10 CRB 00818
JUDGMENT: REVERSED AND REMANDED
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEY FOR APPELLEE
Lon D. Stolarsky
5333 Northfield Road
Suite 250
Bedford Heights, OH 44146
{1} Defendant-appellant, Erik Bollin-Booth, appeals from the trial court‘s judgment denying his motion to vacate his plea. For the reasons stated below, we reverse and remand.
I. Facts and Procedural History
{2} Bollin-Booth was arrested on June 9, 2010 and charged with domestic violence in violation of
{3} The App.R. 9(C) statement of evidence prepared by the trial court reflects that several pretrials occurred. During these pretrials, Bollin-Booth presumably worked out an agreement with the prosecutor to plead no contest to an amended charge, because on August 9, 2010, Bollin-Booth appeared with counsel before a magistrate and signed a document captioned “Pretrial Agreement Form.” The form provided that the first degree domestic violence charge was amended to domestic violence in violation of
{4} There was no reference on the form indicating that Bollin-Booth‘s no contest plea was made knowingly, voluntarily, and intelligently, nor was there any statement advising Bollin-Booth pursuant to Crim.R. 11 of the effect of his plea.
{5} Bollin-Booth did not appeal his conviction and sentence. Nearly one year later, he filed a motion to withdraw his plea. The trial court denied his motion and Bollin-Booth now appeals from the trial court‘s judgment.
II. Appellant‘s Appeal is Not Moot
{6} “At common law, courts considered appeals in criminal cases to be moot if the appellant had completed the sentence prior to a ruling on the appeаl on the basis that if a sentence had been served, a favorable judgment could not ‘operate to undo what has been done or restore to petitioner the penalty of the term of imprisonment which he has served.‘” Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 17, quoting St. Pierre v. United States, 319 U.S. 41, 42-43, 63 S.Ct. 910, 87 L.E. 1199 (1943).2
{7} In accord with that rule, the Ohio Supreme Court has held thаt:
where a criminal defendant, convicted of a misdemeanor, voluntarily satisfied the judgment imposed upon him or her for that offense, an appeal
from the conviction is moot unless the defendant has offered evidence from which an inference can be drawn that hе or she will suffer some collateral legal disability or loss of civil rights stemming from that conviction. State v. Golston, 71 Ohio St.3d 224, 226, 643 N.E.2d 109 (1994), citing State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), and State v. Berndt, 29 Ohio St.3d 3, 504 N.E.2d 712 (1987). See also In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 9, citing Wilson at the syllabus.
{8} The trial court‘s App.R. 9(C) statement, filed with this court on September 16, 2011, states that “[d]efendant paid his fine, court costs[,] and fully satisfied his sentence.” The trial court sentenced Bollin-Booth on August 9, 2010. The reсord reflects that Bollin-Booth paid the fine and court costs the same day. Bollin-Booth‘s one year of active probation was completed on August 8, 2011, shortly after his appeal of the trial court‘s judgment denying his motion to withdraw his plea was filed on July 26, 2011.
{9} In Lewis, the Supreme Court of Ohio сonsidered what it means to “voluntarily” complete a sentence for purposes of the mootness doctrine and held that:
the completion of a sentence is not voluntary and will not moot an appeal if the circumstances surrounding it demonstrate that the appellant neither acquiesced in the judgment nor abandoned the right to appellate review, that the appellant has a substantial stake in the judgment of conviction, and that there is subject matter for the appellate court to decide. Id. at ¶ 26.
{10} Here, it is apparent thаt Bollin-Booth voluntarily completed his sentence in this case. He paid his fine the day it was imposed, and never filed a direct appeal of his conviction and sentence nor asked for a stay of execution of sentence in either the trial court or this court.
{11} Nevеrtheless, on this record, we can infer a collateral consequence arising from Bollin-Booth‘s domestic violence conviction. See Cleveland Hts. v. Lewis, 187 Ohio App.3d 786, 2010-Ohio-2208, 933 N.E.2d 1146, ¶ 11 (8th Dist.). A collateral disability is an adverse legal consequence of a conviction or judgment that survives despite the court‘s sentence having been satisfied or served. In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, at ¶ 10. Here, Bollin-Booth‘s misdemeanor domestic violence conviction can be used to enhance the severity of any later criminal charge of domestic violence. See
III. Motion to Vacate Plea
{12} Bollin-Booth contends that the trial court abused its discretion in denying his postsentence motion to vacate his plea.
{13} Bollin-Booth argues that he should have been allowed to withdraw his plea because the trial court did not conduct a
{14}
{15} Pleas in petty offense cases are governed by
{16} In State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, the Supreme Court of Ohio was asked to “clarify the trial judge‘s duties under
{17}
{18} In light оf our discussion, Bollin-Booth‘s assertion that the trial court was required to engage in a colloquy and advise him in open court of the constitutional rights he was waiving by entering his no contest plea is without merit. A
{19} To determine whether the trial court in this case complied with the requirements of
{20} From the record, it appears that the magistrate accepted Bollin-Booth‘s no contest plea.
{21} Sinсe no transcript of the proceedings exists, we look to the “Plea Agreement Form” signed by Bollin-Booth, his counsel, and the magistrate to determine if he was advised of the effect of the plea.3 The form contains no
{22} Paragraph 11 of the trial court‘s App.R. 9(C) statement states that “[o]n August 9, 2010, the trial court issued the following entry: ‘Deft. Present with counsel; all rights pursuant to Crim.Rule 11 D&E explained.‘” The City argues that this statement indicates that the proper advisement was given. But the magistrate was required to advise Bollin-Booth of the effect of his plea under
{23} As this court noted in Withrow, an appellant has the burden of providing the
{24} We find that the only record regarding Bollin-Booth‘s plea was the “Pretrial Agreement Form,” and that form was not in compliance with
{25} The city argues that even if the trial court failed to inform Bollin-Booth of the effect of his no contest plea, Bollin-Booth must demonstrate that he was prejudiced by the trial court‘s failure to comply with
[I]n 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. For that reason, the error was not reversible without a showing of prejudice. Prejudice, in this context, means that the
plea would not otherwise have been made but for thе trial court error. Jones did not allege any prejudice from the trial court‘s failure to tell him that a 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 Crim.R. 11(B)(1) * * *.More recently, however, in State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d 462, 2008-Ohio-3748, the Ohio Supreme Court explained:
“When the trial judge does not substantially comply with
Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may bе vacated only if the defendant demonstrates a prejudicial effect. * * * The test for prejudice is ‘whether the plea would have otherwise been made.’ * * * If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. * * * ‘A complete failure to comply with the rule does not implicate an analysis of prejudice.’ (Internal citations omitted.) Clark at ¶ 32.”
{26} Here, there was “a complete failure to comply with the rule.” The trial court did not provide Bollin-Booth with any explanation of the effect of his plea under
{27} Bollin-Booth‘s assignment of error is sustained and his plea is vacated. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
{28} Reversed and remanded.
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 be sent to said court to carry this judgment into execution.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR