State v. GatesState v. Gates
Victor V. Vigluicci, Portage County Prosecutor, Timothy J. Piero and Theresa M. Scahill, Assistant Prosecutors, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Neil P. Agarwal, 3766 Fishcreek Road, Suite 289, Stow, OH 44224-4379 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Troy L. Gates, appeals the decisions of the Portage County Municipal Court, Ravenna Division, in denying his motion to dismiss the indictment and in assessing costs. Appellant claims that the indictment should have been dismissed because he was arraigned improperly in violation of Crim.R. 5 and 10, and that costs should not have been assessed upon him because the court did not comply with
{¶2} Appellant was arraigned on charges of vehicular homicide, a first-degree misdemeanor in violation of
{¶3} Subsequent to the arraignment, appellant requested appointed counsel or a public defender. Appellant requested a continuance of the case, which was granted, and also made a demand for a jury trial which the trial court accepted. Thereafter, the public defender requested to withdraw from the case due to differences with appellant on how to proceed with his case. The motion was granted, and the court appointed new counsel to represent appellant. The court continued the case again so new counsel could become familiarized with the case.
{¶4} Appellant, represented by newly-appointed counsel, subsequently moved to dismiss the indictment due to an alleged improper advisement of his rights. A motion hearing was held directly before a scheduled jury trial where appellant argued that the court committed prejudicial error because he was improperly advised of his rights.
{¶6} Appellant sets forth two assignments of error. Appellant‘s first assignment of error is:
{¶7} “The trial court committed reversible error when it denied Defendant‘s motion to dismiss the indictment after he was improperly arraigned under
{¶8}
{¶9} Specifically,
{¶10} “(A) Procedure upon initial appearance. When a defendant first appears before a judge or magistrate, the judge or magistrate shall permit the accused or his counsel to read the complaint or a copy thereof, and shall inform the defendant:
{¶11} “(1) Of the nature of the charge against him;
{¶13} “(3) That he need make no statement and any statement made may be used against him;
{¶14} “(4) ***
{¶15} “(5) Of his right, where appropriate, to jury trial and the necessity to make demand therefore in petty offense cases.
{¶16} “***
{¶17} “In misdemeanor cases the defendant may be called upon to plead at the initial appearance. Where the defendant enters a plea the procedure established by
{¶18} Since appellant was called upon to plead and did so at his initial appearance in court, the procedure established by
{¶19}
{¶20} “(A) Arraignment procedure. Arraignment shall be conducted in open court, and shall consist of reading the indictment, information or complaint to the defendant, or stating to the defendant the substance of the charge, and calling on the defendant to plead thereto. The defendant may in open court waive the reading of the indictment, information, or complaint. The defendant shall be given a copy of the indictment, information, or complaint, or shall acknowledge receipt thereof, before being called upon to plead.
{¶21} “***
{¶23} “(1) The defendant has a right to retain counsel even if the defendant intends to plead guilty, and has a right to a reasonable continuance in the proceedings to secure counsel.
{¶24} “(2) The defendant has a right to counsel, and the right to a reasonable continuance in the proceeding to secure counsel, and, pursuant to
{¶25} “(3) ***
{¶26} “(4) The defendant need make no statement at any point in the proceeding, but any statement made can and may be used against the defendant.”
{¶27} At the onset, it must be decided whether the trial court failed to properly advise appellant of his rights pursuant to the aforementioned rules. The court should make a record of the arraignment so it is clear on review what rights were advised to a defendant. State v. Diroll, 11th Dist. No. 2006-P-0110, 2007-Ohio-6930, ¶37. In this matter, a review of the arraignment proceedings reveals that the court informed appellant of the nature of the charges against him. Additionally, appellant admits to receiving the court‘s summons, which on its face states that a copy of the indictment had been attached.
{¶28} However, in this municipal court, as in many others, advisement of the rights in question are not given at the arraignment hearing but instead are found on a
{¶29} However, when the defendant presents a challenge, as appellant did here, regarding whether he was properly advised via a recorded arraignment video, the state bears the burden to introduce evidence sufficient to support the proposition that the defendant saw the video recording. The content of such video shall advise the defendant of his rights. Once sufficient evidence has been introduced, the burden shifts to the defendant to rebut the contention by introducing evidence to negate the proposition.
{¶30} Here, the state introduced sufficient evidence indicating appellant saw the video recording, the content of which advised him of his rights. The state‘s evidence included the following:
{¶31} The state introduced the content of the arraignment DVD via transcript. This transcript was authenticated by the court reporter as a fair and accurate transcript of the arraignment DVD used by Judge Watson for use in the corresponding courtroom. In support, the court reporter also testified that no other version would have been played
{¶32} The state offered testimony that the transcribed DVD is the one that is played in court. The court‘s bailiff testified that the videotape version has not been played in five or six years, thus the DVD version is the version that was played. The bailiff further testified that his responsibility is to put the DVD in, press play, and make sure it plays before exiting.
{¶33} The state offered testimony that viewers are instructed to watch the DVD and ask questions if necessary. The bailiff testified that prior to the DVD being played, he informs the audience that they are about to watch a recording of their rights and they must watch the recording. The bailiff also testified that he informs the audience that if they have any questions they should approach the judge when they come before the court.
{¶34} The state offered evidence that the recording is played in the normal course of court operations because it is required to be done. Both the reporter and bailiff testified that the recording must be played for every audience. The reporter
{¶35} Thus, the state presented sufficient evidence to support the proposition that appellant saw the recording, the content of which advised him of his rights.
{¶36} Appellant then had the opportunity to rebut this proposition by introducing evidence at the hearing. However, the record is devoid of any such evidence. There is no indication appellant was absent for viewing. There is no indication appellant saw only a portion of the recording. There is no indication he did not pay attention to the recording. There is no indication he did not understand his rights. Counsel for appellant merely argues that appellant may or may not have seen the recording; he could have only seen a portion; and if he saw it, he might not have been paid attention to it. Appellant had the opportunity during the hearing to present evidence of any of these possible scenarios, but did not. Because the state presented sufficient evidence to establish the procedure and content of its arraignments and there is no evidence suggesting appellant did not view it as indicated, we determine the evidence is sufficient to establish appellant viewed the recording, the content of which explained certain constitutional rights. Appellant was thus informed of those rights contained therein.
{¶37} However, the recording does not review every advisement required in
{¶38} Appellant seems to suggest a rule of prejudicial error per se when rights are not properly advised. In reliance, appellant cites, inter alia, State v. Orr (1985), 26 Ohio App.3d 24 to support the contention that a trial court‘s failure to inform an accused of his rights as required by
{¶40} In the present case, any defect as a result of deficient advisement at the arraignment was effectively cured at the trial court level. Appellant was afforded all rights at each stage of the proceedings and he suffered no prejudice. Appellant was clearly present for the hearing on his motion to dismiss and heard all of the rights afforded to him. Finally, the record clearly establishes a colloquy with appellant at the time of his plea hearing where the court gave a full recitation of the nature of the charges and the possible penalties for each charge. The court explained all of his rights
{¶41} Thus, because it is clear from the record before us that appellant was not prejudiced, and that any deficiency in the arraignment advisements was ultimately cured by the trial court, the trial court did not err in denying appellant‘s motion to dismiss the indictment. This assignment of error lacks merit.
{¶42} Appellant‘s second assignment of error is:
{¶43} “The Trial Court committed reversible error in imposing court costs against Mr. Gates without complying with
{¶44}
{¶45} Appellate courts are split, however, as to whether the issue is ripe for adjudication on direct appeal. Some courts conclude the issue ripe based on the principle of judicial economy. See, e.g., State v. Gabriel, 7th Dist. No. 2009-MA-108, 2010-Ohio-3151, at ¶31-34. Therefore, the trial court‘s sentencing entry is modified to prohibit any future imposition of community service as a means of collecting costs. Id.
{¶46} Other appellate courts, relied upon by appellant, vacate the portion of the trial court‘s entry relative to court costs, and remand the case to the trial court for
{¶47} However, as recently noted in State v. Siler, 11th Dist. No. 2010-A-0025, 2011-Ohio-2326, the majority of appellate courts that have reviewed this issue “held that the issue is not ripe for adjudication until the defendant suffers actual prejudice, i.e., if the defendant fails to pay the court costs and if the trial court orders community service as a consequence.” Siler, supra, at ¶49, citing State v. Boice, 4th Dist. No. 08CA24, 2009-Ohio-1755, at ¶11; State v. Nutter, 12th Dist. No. CA2008-10-0009, 2009-Ohio-2964, at ¶12; State v. Kearse, 3d Dist. No. 17-08-29, 2009-Ohio-4111, at ¶7-15; and State v. Ward, 168 Ohio App.3d 701, 2006-Ohio-4847, at ¶41.
{¶48} As held in Siler: “We also believe the issue is not ripe for adjudication. The statute permits, but does not mandate, a trial court to order community service when a defendant fails to pay court costs.” Siler, supra, at ¶50.
{¶49} In this case, appellant will not suffer actual prejudice from the trial court‘s sentencing error unless he fails to pay the court costs and the trial court exercises its discretion to order him to perform community service. Thus, this matter is not ripe for adjudication.
{¶50} For the foregoing reasons, the decision of the Portage County Municipal Court, Ravenna Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.