State of Ohio/City of Toledo v. Kevin Marvin Neal
Court of Appeals No. L-17-1193
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
June 29, 2018
2018-Ohio-2596
Trial Court No. TRC-17-2729
Eric Allen Marks, for appellant.
DECISION AND JUDGMENT
MAYLE, P.J.
{¶ 1} Appellant, Kevin Neal, appeals the June 27, 2017 judgment of the Toledo Municipal Court sentencing him for a misdemeanor conviction of operating a vehicle
I. Background and Facts
{¶ 2} On February 6, 2017, Neal was driving on Alexis Road in Toledo when he was stopped by an Ohio State Highway Patrol trooper. The trooper arrested Neal and issued him a uniform traffic ticket charging him with operating a vehicle while “[u]nder the influence of alcohol/drug of abuse” (“OVI”) in violation of
{¶ 3} That same day, the trooper initiated criminal proceedings against Neal in the Toledo Municipal Court by filing the uniform traffic ticket, which served as the complaint and summons under
{¶ 4} On May 18, 2017, Neal entered a plea of no contest to the OVI charge. In exchange, the city agreed to “off docket” the marked lanes violation. At the hearing, Neal’s counsel stated that Neal agreed to plead “[n]o contest, we would consent to a
{¶ 5} On June 27, 2017, the court held a sentencing hearing. After hearing counsel’s argument in mitigation of punishment, the court sentenced Neal to 180 days in jail with 157 days suspended; one year of probation, including the terms that Neal commit no other offenses and follow any recommendations resulting from a substance abuse assessment; an 18-month driver’s license suspension; a $525 fine; and court costs.
{¶ 6} Neal now appeals the trial court’s decision, raising two assignments of error:
FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS BY FINDING HIM GUILTY AFTER A NO CONTEST PLEA WITHOUT REQUIRING AN EXPLANATION OF THE CIRCUMSTANCES FROM THE CITY.
SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT LACKED SUFFICIENT EVIDENCE TO FIND APPELLANT GUILTY FOLLOWING HIS NO CONTEST PLEA, AND HE SHOULD BE ACQUITTED OF THE OVI OFFENSE.
II. Law and Analysis
{¶ 7} In his first assignment of error, Neal argues that the trial court violated his due process rights by finding him guilty based on his no contest plea without calling for an explanation of the circumstances of the charge, as required by
{¶ 8} In response, Toledo argues that a defendant may waive the required
{¶ 9} Our standard of review is de novo. State v. Korossy, 2017-Ohio-7275, 96 N.E.3d 941, ¶ 10 (6th Dist.) (“We conduct a de novo review of a trial court’s finding of guilt following a no contest plea.”).
A. Neal Waived the R.C. 2937.07 Explanation of Circumstances
{¶ 10} As an initial matter, we note that Neal was charged with, and convicted of, a violation of a traffic ordinance, so the Ohio Traffic Rules (rather than the Ohio Rules of Criminal Procedure) apply to his case. State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 10;
{¶ 11} “A defendant may plead not guilty, guilty or, with the consent of the court, no contest.”
{¶ 12} Under
A plea to a misdemeanor offense of “no contest” or words of similar import shall constitute an admission of the truth of the facts alleged in the complaint and that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense.
The Supreme Court of Ohio has determined that
{¶ 13} Although
{¶ 14} This court has repeatedly recognized that a defendant can waive his right to have the facts supporting the charges against him presented to the court. Korossy, 2017-Ohio-7275, 96 N.E.3d 941, at ¶ 12, citing Kern, 6th Dist. Lucas No. L-14-1173, 2015-Ohio-1988, at ¶ 12. The waiver must be explicit. Id. Here, at the plea hearing, Neal’s counsel expressly stated that he was pleading “[n]o contest, we would consent to a finding, waive any reading or call for explanation of circumstances.” (Emphasis added.) This was an explicit waiver of Neal’s right to an explanation of circumstances under
B. Neal’s Conviction Lacks Sufficient Evidence
{¶ 15} Next, we consider whether Neal’s waiver of an explanation of circumstances under
{¶ 16} It is important to remember that a no contest plea to a misdemeanor offense under
{¶ 17} Although a defendant may waive the
{¶ 18} If, however, the defendant’s waiver of the explanation of circumstances is accompanied with an express statement that the defendant “consents to a finding of guilty,” or expressly stipulates that the admitted facts provide a “sufficient” or “actual” basis for a finding of guilt, then the defendant cannot assert insufficient evidence as error on appeal because he invited the error. See Kern, 6th Dist. Lucas No. L-14-1173, 2015-Ohio-1988, at ¶ 12. That is because, by making such explicit statements, the defendant goes beyond a bare admission of the facts of the complaint and admits that the facts, as alleged, are sufficient to establish guilt.
{¶ 19} In Kern, the appellant pleaded no contest to reckless operation, a violation of
{¶ 20} But, the invited error doctrine will not apply unless the defendant’s waiver of the explanation of circumstances and stipulation to a finding of guilty are both explicit. If the defendant merely waives the explanation of circumstances and the admitted facts of the complaint are insufficient to establish guilt, the trial court may acquit the defendant, call for additional facts from the state, or reject the plea. See State v. Beasley, 152 Ohio St.3d 470, 472, 2018-Ohio-16, 97 N.E.3d 474, ¶ 11 (“[a] trial court has discretion to accept or reject a no-contest plea.”). Alternatively, if the defendant merely stipulates to a finding of guilty, that “does not relieve the trial court of its duty to obtain an explanation of the circumstances * * *.” Korossy, 2017-Ohio-7275, 96 N.E.3d 941, at ¶ 15.
{¶ 21} Here, Neal pleaded no contest to OVI in violation of
{¶ 22} At the plea hearing, Neal’s counsel stated that Neal agreed to plead “[n]o contest, we would consent to a finding, waive any reading or call for explanation of circumstances.” While Neal explicitly waived the
{¶ 23} Because the complaint does not contain facts sufficient to support each element of the offense, the trial court lacked sufficient evidence to find Neal guilty of
III. Conclusion
{¶ 24} Under
{¶ 25} Although Neal waived the explanation of circumstances, he did not explicitly consent to a finding of guilty or expressly admit that the facts, as alleged, provide a sufficient or actual basis for a finding of guilt. Thus, the trial court was still required to determine whether the facts of the complaint, as admitted, established guilt. The trial court found Neal guilty of OVI in violation of
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
Christine E. Mayle, P.J. CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.