STATE OF OHIO, Plaintiff-Appellee v. PAUL E. FAULKNER, Defendant-Appellant
C.A. CASE NO. 2013-CA-43
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
May 29, 2015
[Cite as State v. Faulkner, 2015-Ohio-2059.]
T.C. NO. 13TRC1707 (Criminal Appeal from Municipal Court)
Rendered on the 29th day of May, 2015.
BREANNE PARCELS, Atty. Reg. No. 0089370, Champaign County Municipal Prosecutor, 205 S. Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
PAMELA L. PINCHOT, Atty. Reg. No. 0071648, 1800 Lyons Road, Dayton, Ohio 45458
Attorney for Defendant-Appellant
PAUL E. FAULKNER, 305 N. Church Street, Saint Paris, Ohio 43072
Defendant-Appellant
FROELICH, P.J.
{¶ 1} Paul E. Faulkner pled guilty to operating a vehicle while under the influence of drugs or alcohol, in violation of
{¶ 2} According to the record, at approximately 1:36 a.m. on August 10, 2013, Faulkner was stopped on State Route 56 in Champaign County as a suspected impaired driver. Deputy Sheriff Ervin asked Faulkner to perform field sobriety tests and to take a test on a portable breath analyzer. The BAC result was 0.111, which is above the legal limit. Faulkner was transported to the Sheriff’s Office, where he submitted to a chemical breath test. The result of that test indicated 0.108 grams of alcohol per 210 liters of breath, which was a prohibited alcohol concentration as defined by
{¶ 3} Faulkner was charged with OVI and a turn signal violation. The traffic citation indicates that Faulkner had two prior OVIs — one in 1990 and one in 2001 — and cited Faulkner for violating
{¶ 4} Faulkner appeared, as summoned, on August 12, 2013. The trial court found him to be indigent and appointed counsel. Faulkner was released on a recognizance bond. Faulkner was ordered to appear on August 14, 2013 to answer the two charges of “OVI – 2d within 20 years” and the turn signal violation.
{¶ 5} On August 14, 2013, Faulkner appeared, with counsel, and pled guilty to “operating a vehicle under the influence.” Neither the plea form nor the transcript of the plea hearing (portions of which were inaudible) identifies the section of
{¶ 6} Faulkner appealed his conviction. Faulkner’s original appellate counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the record and the law, he found no potentially meritorious issues for appeal. Counsel identified one potential assignment of error, namely that Faulkner’s trial counsel rendered ineffective assistance by failing to file a motion to suppress, but opined that such an assignment was frivolous.
{¶ 7} By entry, we informed Faulkner that his attorney had filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se brief. No pro se brief was filed. After an independent review of the record, we identified a potentially meritorious issue regarding whether Faulkner understood the offense of which he was
{¶ 8} Faulkner now raises two assignments of error, namely (1) that the trial court erred by accepting his guilty plea to the OVI charge “when the record did not support such convictions” [sic], and by failing to inform him that “a plea of guilty was a full admission of guilt to said charge in accordance with Criminal Rule 11,” and (2) that he was denied the effective assistance of counsel “when his counsel allowed him to plead guilty to charges of which he was not guilty.”
{¶ 9} Initially, Faulkner’s guilty plea serves as a complete admission of factual guilt.
{¶ 10} Faulkner claims that his guilty plea was invalid, because the trial court failed to comply with
{¶ 11} An OVI offense under
{¶ 12} Unlike
(2) No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following:
(a) Operate any vehicle * * * within this state while under the influence of alcohol, a drug of abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle * * * as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section
4511.191 of the Revised Code , and being advised by the officer in accordance withsection 4511.192 of the Revised Code of the consequences of the person’s refusal or submission to the test or tests, refuse to submit to the test or tests.
(Emphasis added.)
{¶ 13} The record in this case repeatedly refers to the charged offense under
{¶ 14} For a “petty offense” misdemeanor, such as Faulkner’s OVI offense, the trial court was required only to inform Faulkner of the effect of his guilty plea, i.e., that his
{¶ 15} At the plea hearing, the trial court asked Faulkner if he wanted to enter a guilty plea to the charge of operating a vehicle while under the influence of alcohol and another misdemeanor charge in a separate case. Faulkner responded that he did. The court continued:
THE COURT: Do you understand that one of those2 have [sic] a maximum penalty of up to 6 months in jail and without the dollar fine and costs?
DEFENDANT FAULKNER: Yes.
THE COURT: The OVI also has up to a 3-year driver’s license suspension. Do you understand that it’s (INAUDIBLE) the OVI could be charged as a felony. For example, if you were to get a fourth OVI within six years or a sixth OVI within one year that that could be charged as a felony?
DEFENDANT FAULKNER: Yes, ma‘am.
The trial court then asked Faulkner if he understood that he was giving up his right to a jury trial, his right to remain silent, his right to make the State prove his guilt beyond a reasonable doubt, his right to face his accusers and to cross-examine them, and his right to compel witnesses on his behalf. Faulkner responded affirmatively. Upon further questioning, Faulkner stated that he was making his guilty plea voluntarily and intelligently and that no threats or promises had been made to induce him to enter his plea. The court did not, however, inform Faulkner at the plea hearing that a plea of guilty was a complete admission of guilt. Accordingly, the trial court did not satisfy its
{¶ 16} Nevertheless, the Supreme Court of Ohio has held that a defendant must establish that the failure to comply with nonconstitutional rights, such as the information contained in
{¶ 17} Faulkner further argues that the trial court erred in sentencing him as if he had been convicted of an offense under
{¶ 18}
{¶ 19} A person who has a second OVI under
{¶ 20} The sentences for the possible three relevant offenses is illustrated below:
| Offense | Minimum Jail | Fines | Treatment | Lic. Susp. | Driving | Restr. Pl./ Interlock | Immobilization |
|---|---|---|---|---|---|---|---|
| 1st in 6 yrs | 3 days | $375-$1,075 | Optional | Class 5 | After 15 days | Optional | No |
| 1st in 6 yrs; refusal with prior in 20 yrs | 6 days | $375-$1,075 | Optional | Class 5 | After 15 days | Optional | No |
| 2d in 6 yrs | 10 days | $525-$1,625 | Mand. assessmt & treatment | Class 4 | After 45 days | Required | 90 days if registered to Deft. |
{¶ 21} In imposing sentence, the trial court stated that it had considered the fact that Faulkner had two prior OVI convictions. The court also specifically noted that Faulkner had two OVI offenses in the past 20 years. Faulkner received a 180-day jail term, with 170 days suspended. The court also imposed three years of community control, which included the conditions that Faulkner attend drug and alcohol counseling and submit to alcohol and drug screening for three years. The trial court ordered Faulkner to pay a $650 fine, suspended his driver’s license for two years, and imposed court costs.
{¶ 22} Faulkner’s sentence fell within the permissible range of a sentence for a
{¶ 23} It is not apparent from the record and, in particular, the trial court’s sentence, what specific OVI offense it believed Faulkner had committed when it imposed sentence. The trial court’s repeated references in its entries to “OVI – 2nd in 20 years” implies that it could have sentenced Faulkner under
{¶ 24} Finally, Faulkner claims that his trial counsel rendered ineffective assistance by failing to “understand or advise Faulkner that
{¶ 25} The trial court’s judgment will be reversed, and the matter will be remanded for resentencing.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Breanne Parcels
Pamela L. Pinchot
Paul E. Faulkner
Hon. Gil S. Weithman