STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIAM C. BROWN, DEFENDANT-APPELLANT.
CASE NO. 9-16-37
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
February 27, 2017
2017-Ohio-678
OPINION
Appeal from Marion Municipal Court
Trial Court No. TRC1509569A&B
Judgment Reversed and Cause Remanded
Date of Decision: February 27, 2017
APPEARANCES:
Cleve M. Johnson for Appellant
Steven E. Chaffin for Appellee
{1} Dеfendant-appellant William C. Brown (“Brown“) appeals the decision of the Marion Municipal Court finding the defendant guilty of operating a vehicle while impaired in violation of
{2} On November 25, 2015, Brown was charged under
{3} On July 6, 2016, Brown pled no contest at his sentencing hearing. Tr. 4. The court found Brown guilty of violating
First Assignment of Error
Striking [Brown‘s] motion to suppress without a hearing was error.
Second Assignment of Error
Striking [Brown‘s] motion tо suppress without ruling on [Brown‘s] previously filed motion to compel discovery was error.
Third Assignment of Error
Failing to give [Brown] a hearing on his administrative license suspension was error.
Fourth Assignment of Error
The trial court committed reversible error in finding [Brown] guilty after [Brown‘s] verbal entry of a plea of no contest without first having the state read into the record an explanation of the facts and circumstances supporting all of the essential elements of the offense charged as required under
In the following analysis, the fourth and third assignments of error will be evaluated prior to consideration of the first and second assignments of error.
Failure to Recite the Facts into the Record
{4} In his fourth assignment of error, Brown argues that the absence, in the record, of an explanation of circumstances suрporting the court‘s finding of guilt is reversible error.
A plea to a misdemeanor offense of “no contest“...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 guilt or not guilty from the explanation of the circumstances of the offense.
”
{5} The State has the burden of ensuring that an explanation of the circumstances is introduced into the record. State v. Jenkins, 3d Dist. Hancock Nos. 5-15-21, 5-15-22, and 5-15-23, 2016-Ohio-1428, ¶ 7, citing State v. Schornak, 2d Dist. Greene No.2014-CA-59, 2015-Ohio-3383, 1 N.E.3d 168.
{6} “An explanation of circumstances is found where the record includes a statement of the facts sufficient to support all of the essential elements of the offense.” State v. Horvath, 3d Dist Seneca No. 13-15-10, 2015-Ohio-4729, ¶ 12, citing State v. Provino, 175 Ohio App.3d 283, 2007-Ohio-6974, 886 N.E.2d 888, ¶ 5. Even though the no contest plea admits the facts alleged in the complaint, “the record must provide an ‘explanatiоn of circumstances’ for the trial
{7} “Appellate review of a trial court‘s finding of guilt on a no contest plea to a misdemeanor is de novo.” State v. Erskine, 4th Dist. Highland No. 14CA17, 2015-Ohio-710, 29 N.E.3d 272, ¶ 10. In reviewing the recоrd, “[t]he question is not whether the court could have rendered an explanation of circumstances sufficient to find appellant guilty based on the available documentation but whether the court made the necessary explanation.” Bowers, supra, at 151.
Under
R.C. 2937.07 , when a plea of no contest is accepted in a misdemeanor case, the explanation оf circumstances serves as the evidence upon which the trial court is to base its finding of guilt or not guilty.
Horvath at ¶ 18, citing State v. Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410, ¶ 14, citing Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). For this reason,
[i]f the explanation of circumstances provided on the record does not establish all of the offense‘s elements, the defendant who pled no contest ‘has a substantive right to be discharged by a finding of not guilty.’ Bowers at 150. It follows that if an appellate court finds that thе explanation of circumstances requirement was not satisfied, the conviction must be vacated. Id. at 151.
Jenkins, at ¶ 8, quoting Bowers, supra, at 151. Further,
[w]hen a conviction is reversed due to insufficient evidence, jeopardy attaches, and a remand for a new determination of guilt or innocence is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Articlе I, Section 10 of the Ohio Constitution.
Horvath at ¶ 18 (citations omitted).
{8} In the instant case, Brown pled no contest to the charges brought against him as part of a plea agreement. Tr. 3-4. To determine whether the trial court followed the requirements of
Tr. 4-5.
[Court]: [H]ow do you plead?
[Defendant]: No contest, sir.
[Court]: Is that with a stipulated finding of guilt?
[Defense Counsel]: That‘s correct. We‘re not stipulating to the guilt, but we understand that the court is doing that.
[Court]: I‘ll accept the finding of guilt and adopt the recommended penalty. The Count B charge will be dismissed—or excuse me—the Count A charge. Of course, it was the Count B charge that we just did. And I will sign the order appointing the transcriber. And I‘ll sign the entry granting the stay, pending the timely filing of the appeal. Anything else?
{9} In Arnold, we affirmed the conviction of the dеfendant in the absence of an explanation of circumstances because we found evidence in the record that the defendant intended to waive the explanation of circumstances requirement of
{10} In the present case, the trial court, in its judgment entry, submitted Brown‘s plea as “No Contest, with a stipulated finding of Guilty.” Doc. 28. However, this entry is not—by itself—a waiver. See State v. Roland, 2d Dist. Champaign No. 2005 CA 39, 2006-Ohio-3517 (holding that a stipulation of guilt was “not the functional equivalent of a guilty plea.“). Rather, a no contest plea with a stipulated finding of guilty must be accompanied by conduct on the part of the defendant that objectively indicates a clear intention to waive the explanation of circumstances. See State v. Roth, 9th Dist. Lorain No. 03CA008396, 2004-Ohio-4447 (holding that an explicit waiver by the defendant was sufficient to waive the explanation of circumstances requirement).
{11} Here, Brown admitted the facts of the case by pleading no contest, but he did not admit that the facts provided a sufficient or “actual basis” for a finding of guilt or expressly consent to a finding of guilt as the defendant did in Arnold. Arnold at ¶ 10. Tr. 4. Rathеr, counsel stated that they “[were] not stipulating to a finding of guilt” with the understanding that the court was going to make that finding. Tr. 4. This is not a waiver of the explanation of circumstances as this statement explicitly leaves the finding of guilt in the hands of the trial court. Such a finding by
{12} In reaching a finding of guilt, neither the State nor the trial judge mentioned a single factual finding during the hearing. Tr. 1-6. See Jenkins, supra, at ¶ 11, citing State v. Hess, 3d Dist. Mercer No. 10-91-4, 1991 WL 271716 (Dec. 13, 1991), 3 (holding the court needs to facilitate the “required ‘explanation of the circumstances’ before finding guilt.“). The docket contains several documents which supply information that could have supported a finding of guilt, but the court did not—at any point—allude to any of these materials for the record. Tr. 1-6. State v. Myers, 3d Dist. Marion Nos. 9-02-65 and 9-02-66, 2003-Ohio-2936, ¶ 18 (reversing the judgment of the trial court where “the record was silent as to whether the court based its decision on the documentary evidence.“). The facts of the complaint, which Brown admitted to in pleading no contest, were not introduced into the record to substantiate the court‘s determination. Tr. 4. See Bowers, supra, at 151. See Schornak, supra, at ¶ 16 (holding that the court may meet the requirements of
{13} In this case, Brown clearly qualified the plea he tendered to the court and did not engage in any conduct that would signal to the court that Brown had an intention to waive the explanation of circumstances requirement. In a misdemeanor case, a no contest plea is not an admission of guilt and cannot alone be the basis for a finding of guilt. Horvath, supra, at ¶ 17. See Moorer, supra, at ¶ 13. Further, the trial court‘s acceptance of a no contest plea even with a stipulated finding of guilty cannot—by itself—discharge the duty to provide an explanation of circumstances for the record when it is unaccompanied by a clear waiver by the defendant of this substantive right. Finally, we also do not see the indications of invited error which were present in Arnold. Arnold, supra, at ¶ 12.
{14} The burden is on the State to provide the explanation of circumstances requirement, and the State simply did not carry its burden. Jenkins, supra, at ¶ 7. Since the record does not contain an explanation of the circumstances with factual findings sufficient to establish the essential elements of the crime, the record left to us by the trial court cannot support a finding of guilty in this case. Horvath, supra, at ¶ 18. Accordingly, Brown‘s conviction is reversed for insufficient evidence. Id. Further, double jeopardy has attached, barring reconsideration of this charge on remand. See Id.; Moorer, supra, at ¶ 20. For these reasons, Brown‘s fourth assignment of errоr is sustained.
Administrative License Appeal
{15} In his third assignment of error, Brown asserts that the trial court erred by failing to hold a hearing on his ALS appeal. An ALS is a civil matter that is remedial in nature and distinct from the criminal charge in this case. Ohio Bur. Of Motor Vehicles v. Williams, 97 Ohio App.3d 779, 780, 647 N.E.2d 562 (3d Dist.1994). See State v. Gustafson, 76 Ohio St.3d 425, 436, 668 N.E.2d 435 (1996) (holding the ALS and criminal trial were distinct proceedings for the purposes of double jeopardy). Thus, this issue survives our ruling on Brown‘s fourth assignment of error. Id.
{16} When an arrestee tests positive for driving with a prohibited concentration of alcohol, he or she is immediately subject to an ALS.
{17} When the ALS terminates after an OVI conviction, the time spent under the ALS is credited towards any license suspension imposed in the sentence.
{18} Since “the Due Process Clause applies to the suspension...of a driver‘s license,” procedural safeguards are necessary to prevent an erroneous deprivation. State v. Hochhausler, 76 Ohio St.3d 455, 459, 668 N.E.2d 457 (1996).
{19} Ohio law, however, “does not expressly set forth the procedure a trial court is to follow in reviewing an aрpeal of an [ALS].”2 State v. Norman, 5th Dist.
{20} In the present case, Brown appealed his ALS in his initial appearance pleadings, but the trial court did not schedule a hearing. Doc. 4. On appeal, the State argues the trial court was correct in doing so because Brown failed to file his appeal as a separate civil action. This argument fails in that the trial court acknowledged the appeal by ordering a stay of the ALS on January 20, 2016.3 Doc. 11. In this case, no evidence in the record suggests that the trial court addressed or issued an order regarding a hearing of the ALS appeal that Brown requested. Brown was never given an opportunity to be heard, which state law and due process require. In doing so, the trial court erred.
{21} In this case, Brown‘s license was subjected to an ALS after his breath test showed an alcohol level of 0.117%. Doc. 2. The ALS began on November 25, 2015, and expired pursuant to
Remaining Assignments of Error
{23} Since the fourth assignment of error, regarding the trial court‘s decision to find the defendant guilty in the absence of an explanation of the circumstances, has been sustained, the questions concerning the appellant‘s motion to suppress and the motion to compеl discovery, raised in the first and second assignments of error respectively, are moot. Thus, this court declines to address these questions pursuant to
{24} Having found error prejudicial to the appellant in the particulars assigned and argued, the judgment of the Marion Municipal Court is reversed. The matter is remanded to the trial court for further proceedings in aсcord with this opinion.
Judgment Reversed And Cause Remanded
PRESTON, P.J. and SHAW, J., concur.
/hls