STATE OF OHIO, Plaintiff-Appellee, v. KAYLEE DICK, Defendant-Appellant.
Case No. 17CA1049
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
RELEASED: 05/30/2018
[Cite as State v. Dick, 2018-Ohio-2207.]
Tyler E. Cantrell, Office of Young & Caldwell, L.L.C., West Union, Ohio, for appellant.
David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams County Assistant Prosecuting Attorney, West Union, Ohio, for appellee.
Harsha, J.
{¶1} Kaylee Dick appeared at her arraignment without counsel and pleaded guilty to a charge of operating a motor vehicle while under the influence of alcohol/drug of abuse (“OVI“). Dick subsequently secured counsel and before sentencing moved to withdrаw her plea. After a hearing the Adams County Court denied the motion and ultimately sentenced her. Dick asserts that the trial court abused its discretion by denying her presentence motion to withdraw her plea.
{¶2} When the court arraigned Dick, who appeared without counsel, it failed to advise her of her rights under
I. FACTS
{¶3} Very early on a Sunday morning an Ohio State Highway Patrol trooper issued citations charging Kaylee Dick with one first-degree misdemeanor count of
{¶4} On Monday afternoon the Adams County Court arraigned several defendants, including Dick. Initially the court informed every defendant waiting for their individual arraignment about the four different ways they could plead: not guilty by reason of insanity, not guilty, guilty, and no contest. Regarding the not guilty plea, the trial court stated: “[a]nd if you can‘t afford an attorney and you[‘]r[e] faced with the possibility of going to jail, we‘ll appoint one for ya.” The trial court noted that a guilty plea “is your affirmative admission that yeah [sic] I broke the law, whatever law it is that I happen to read of to you. And you‘re going to be found guilty, you admit you did it.”
{¶5} The court then noted the constitutional rights they would be giving up if they pleaded guilty or no contest, including “your right to a lawyer” and “your right to confront * * * or have your lawyer question, anyone whо has * * * evidence against you.”
{¶6} When the trial judge arraigned Dick, he asked her how old she was; after she responded that she was 20 years old, he advised her on each charge and the general penalties she faced. Addressing the OVI charge, the court informed her that she could receive “3 days in jail, up to six months, a $375 fine, and a mandatory six months driver‘s license suspension,“. However, the judge did not tell her that the maximum penalties for the crime actually include a $1,075 fine, three-year driver‘s license suspension, driver intervention program, restricted license plates, and increased penalties for future OVI charges.
{¶7} The trial court then asked whether Dick understood all the charges, and after she answered affirmatively, the court accepted her guilty plea to the charges, including the OVI:
COURT: On, do you understand all the charges?
KAYLEE DICK: Yes. Sir.
* * *
COURT: DUI, how do you wish to plead?
KAYLEE DICK: Guilty.
{¶8} The trial court then imposed fines on the three minor misdemeanors, but оrdered a presentence investigation and set a date for sentencing on the OVI conviction. The court also instructed Dick to complete the drivers’ intervention program before sentencing.
{¶9} Three days before the scheduled sentencing hearing, Dick‘s recently retained legal counsel filed a motion to withdraw her prior plea of guilty to the OVI charge. The motion claimed that Dick did not have sufficient time to cоnsult an attorney before her scheduled arraignment, was not informed of all the collateral consequences of her guilty plea to the OVI charge, and had available defenses to the OVI charge. She claimed innocence and that she did not knowingly make the plea because she did not have the advice of an attorney at that time.
{¶10} At the evidentiary hearing on her motion, Dick testified that: (1) she was 20 years old and had never made a plea before; (2) she was unable to seek the advice of counsel and had not spoken to one because of the abbreviated time between her citation and her arraignment; (3) she did not know what she was doing at the
{¶11} The trial court sentenced her to 60 days in jail, with 40 days suspended and one year of community control, credited her for the remaining 20 days of her jail sentence because she had completed the drivers’ intervention program, fined her $375, and suspended her driver‘s license for 180 days, retroactive to March 2017.
II. ASSIGNMENT OF ERROR
{¶12} Dick assigns the following error for our review:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT‘S MOTION TO WITHDRAW HER FORMER PLEA OF GUILTY.
III. STANDARD OF REVIEW
{¶13} Becаuse a trial court possesses discretion to grant or deny a presentence motion to withdraw a plea, we must not reverse the court‘s decision absent an abuse of
{¶14} An “abuse of discretion” implies that a court‘s attitude is unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Adams, 60 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). In reviewing for an abuse of discretion, it is not our task to simply substitute our judgment for that of the trial court. State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991).
IV. LAW AND ANALYSIS
{¶15} Claiming the trial court failed to comply with
{¶16} Although this is a traffic case primarily governed by the Ohio Traffic Rules,
{¶17}
{¶18} We have previously identified a nonexclusive list of nine factors that appellate courts should consider when reviewing a trial court‘s decision on a presentence mоtion to withdraw a guilty plea: (1) whether highly competent counsel represented the defendant; (2) whether the trial court afforded the defendant a full
{¶19} In analyzing these factors it is apparent that Dick did not have the benefit of counsel before she pleaded guilty at her arraignment the day after she had been charged with OVI. This factor weighs in her favor.
{¶20} Next, Dick claims that the trial court did not give her a full hearing because it advised her of just “some of her penalties, not all, [did] not fully describe[] the rights * * * which she would be giving up and if she was in fact giving up those rights[, and she] was not notified that she could have counsel
{¶21} As noted, the pertinent traffic rules here are
{¶22} Dick claims that she was not notified she could have counsel appointed for her or she would be entitled to a reasonable continuance to retain counsel before pleading.
Before calling upon a defendant to plead at arraignment the judge shall cause him to be informed and shall determine that defendant knows and understands:
(1) That he has a right to counsel and the right to a reasonable continuance in the proceedings to secure counsel, and, pursuant to
Criminal Rule 44 , the right to have counsel assigned without cost to himself if he is unable to employ counsel;(2) That he has a right to bail as provided in
Rule 4 ;(3) That he need make no statement at any point in the proceeding; but any statement made may be used against him;
(4) That he has, where such right exists, a right to jury trial and that he must, in petty offense cases, make a demand for a jury pursuant to
Criminal Rule 23 ;(5) That if he is convicted a record оf the conviction will be sent to the Bureau of Motor Vehicles and become part of his driving record.
{¶23} The trial court did not inform Dick of most of her rights under
{¶24}
{¶25} Under these circumstances other courts have either invalidated the plea and reversed the conviction, Herman, or reversed the denial of a motion to withdraw the plea. See State v. Gearig, 6th Dist. Williams No. WM-09-012, 2010-Ohio-939, ¶ 29-31. That is, the “[f]ailure to comply with
{¶26} This court is no different. In State v. Paul, 4th Dist. Adams No. CA-980, 1980 WL 350963 (Jan. 24, 1980), we reversed the denial of a motion to withdraw a guilty plea in a non-traffic petty misdemeanor case involving the similarly worded
{¶27} Similarly, in State v. Jordan, 4th Dist. Gallia No. 00CA16, 2001 WL 1346129, *3 (Oct. 30, 2001), we held that a trial court erred when it denied a post-sentence motion to withdraw a guilty plea where, among other reasons, the trial court failed to comply with
Appellant also argues that the court failed to comply with
Crim.R. 5 ,Crim.R. 10 , andTraf.R. 8 . We agree that the court did not fully comply with these rules in that appellant was not informed that he was entitled to a continuance to obtain counsel, could have counsel appointed if necessary, was not required to make any statements and any statements made could be used against him, and that a record of his conviction would be sent to the Bureau of Motor Vehicles and become part of his driving record. This information should have been provided to appellant before the court allowed him to proceed with a guilty plea, especially given his pro se status.
{¶28} In addition,
{¶29} “A trial court‘s obligations in accepting a plea depend upon the level of offense to which the defendant is pleading.” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 6, citing State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 25. “In accepting a plea to a misdemeanor involving a petty offense, a trial court is required to inform the defendant only of the effеct of the specific plea being entered.” Jones at paragraph one of the syllabus. “To satisfy the requirement of informing a defendant of the effect of a plea, a trial court must inform the defendant of the appropriate language under
{¶30} We also reject Dick‘s claim that the trial court erred because it did not advise her of the maximum penalties for OVI. See, e.g., State v. Hilderbrand, 4th Dist. Adams No. 08CA864, 2008-Ohio-6526, ¶ 21 (“for misdemeanor petty offenses, there is no requirement that a trial court advise a defendant of the maximum penalty involved“). See also State v. Klingsbergs, 9th District, Wayne No. 10CA44, 2011-Ohio-6509, ¶9.
{¶31} Nevertheless, although the trial court had no duty under
{¶32} Therefore, the court‘s noncompliance with the applicable rules in arraigning Dick and accepting her guilty рlea, weighs heavily in Dick‘s favor.
{¶33} On the next factor Dick concedes that the trial court held a full hearing on her motion to withdraw her guilty plea; this weighs in the state‘s favor.
{¶34} We also find that the trial court gave full and fair consideration to Dick‘s motion. After holding a hearing the court stated on the record the basis for its denial of the motion. But the trial court erred in finding that Dick “was properly advised of all of the rights” that she was waiving; the court did not comply with
{¶35} Next the state admits Dick‘s motion, which she filed three days before sentencing, was filed within a reasonable time. This factor weighs in her favor.
{¶36} And Dick‘s motion did set forth specific reasons for the withdrawal of her guilty plea—she lacked time to consult an attorney between the issuance of the traffic citation charging her with OVI and her arraignment, she was not experienced in court proceedings and was not made aware of all the consequences of her plea, and she had available defenses to the charge. So this also weighs in her favor.
{¶37} At her arraignment the trial court did make an effort to explain the consequences of a guilty plea and asked Dick if she understood the charges. But the trial court did not inform her at the arraignment of her rights as required under
{¶38} Next, Dick claims she was not guilty and had a complete defense to the OVI charge because her blood-alcohol test result was exactly .02 of one gram by weight of alcohol per 210 liters of the person‘s breath, which just met the required alcohol content for a per se OVI violation based on blood-alcohol content.
{¶39} The state disputes this claim because the OVI charge was also premised on her test result of more than 200 nanograms per milliliter of her urine, which exceeded the legal limit of less than 35 ng/ml by more than five times. But the state cites no evidencе in the record to support its claim. In fact, Dick was charged under
{¶40} Finally, the state identifies no prejudice that wоuld result from permitting Dick to withdraw her guilty plea. This factor weighs in Dick‘s favor.
{¶41} In sum, seven factors weighed heavily in favor of allowing the withdrawal and two factors weighed minimally in favor of denying it. In the post-sentence context the failure to comply with rules like
V. CONCLUSION
{¶42} Having sustained her sole assignment of error, we reverse the judgment of the trial court, and remand the cause to that court for further proceedings consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of aрpeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.