State v. GearigState v. Gearig
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Rhonda L. Fisher, Bryan Municipal Prosecutor, for appellee.
Joseph R. Kiacz, for appellant.
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COSME, J.
{¶1} Appellant, Jeremy Gearig, appeals from a judgment issued by the Bryan Municipal Court, Williams County, following his no contest plea to domestic violence. For the reasons set forth below, the judgment of the trial court is reversed.
{¶2} Appellant‘s wife, Stephanie Gearig, alleged that on May 26, 2009, appellant grabbed her by the throat and threw her on the bed, grabbed her arms, threw her on the bed again and then held her down on the bed by the back of her neck. Mrs. Gearig alleged that appellant also turned the couch on its backside then went into the garage and threw his tools around.
{¶3} The next day, appellant was arrested and charged with one count of domestic violence. He was held at the Corrections Center of Northwest Ohio (“CCNO“). That same day, appellant appeared for arraignment via video feed. Prior to the arraignment, an audio CD was played that, according to the trial court, informed appellant of his “constitutional rights.” At the time the audio CD was played, appellant was in a small holding cell with two other prisoners. Appellant asserts that he could not hear and did not understand the importance of the audio feed. The audio CD was being played over an intercom system located in the hallway. However, at the time the audio CD was being played, the door to the holding cell was closed, and the other two prisoners were conversing, making it difficult for appellant to understand the recording. Consequently, appellant claims he could not hear the reading of his rights that was broadcast out in the hall.
{¶4} The assignments of error presented to the court challenge: (1) whether appellant was fully informed of his rights as required by
{¶5} Because appellant‘s first and third assignments of error overlap as to the issue of
II. DUTY TO INFORM
{¶6} In his first and third assignments of error, appellant asserts that:
{¶7} I. “The Trial Court erred to the prejudice of the Defendant-Appellant by accepting his no contest plea where the trial court did not properly advise the Defendant-Appellant of his rights under Ohio Criminal Rules 5, 10, and 11, resulting in the plea not being knowingly, voluntarily and intelligently made;” and
{¶8} III. “That the Trial Court erred to the prejudice of the Defendant-Appellant by not advising the Defendant-Appellant of the meaning of a no contest plea of the Defendant-Appellant before taking such plea, resulting in the plea not knowingly, voluntarily and intelligently being given.”
1. Crim.R. 5
{¶9}
{¶10} The state asserts that it complied with the requirements by playing an audio CD that contains a recitation of the appellant‘s rights. The state relies on the testimony of corrections officer Diane Scherer to verify appellant was informed of his rights. But Officer Scherer was not present in the holding cell at the time the audio CD was played. Consequently, though the state established that the reading of rights was broadcast, it could not rebut the evidence presented by appellant that the broadcast was ineffectual inside the cell due to noise by other inmates and the fact that the door was closed.
{¶11} Compliance with
2. Crim.R. 10
{¶12} Similarly,
{¶13} Although the state claims the audio CD contains these mandatory recitations, it was not included in the record. Besides, even if it does, we have already concluded that the conditions under which the audio CD was played fail to assure effective notification of these rights. And in this case, appellant was not informed because he could not understand the audio CD.
{¶14} The mere playing of an audio CD does not satisfy the requirement in
{¶16} Like
3. Crim.R. 11
{¶17} Appellant also asserts he was prejudiced by the trial court‘s failure to advise him of the effect of his no contest plea, in violation of
{¶18}
{¶19} Appellant entered a plea of no contest to a charge of domestic violence, a first-degree misdemeanor under
{¶20} Having concluded that the trial court failed to comply with the mandate of
{¶21} The test for prejudice is “whether the plea would have otherwise been made.” State v. Nero (1990), 56 Ohio St.3d 106, 108. In City of Eastlake v. DeNiro (1984), 21 Ohio App.3d. 102, at paragraph one of the syllabus, the Eleventh District Court of Appeals observed that “[p]rejudice inheres in the failure to comply with
{¶23} Accordingly, appellant‘s first and third assignments of error are well-taken.
III. WITHDRAWAL OF PLEA
{¶24} In his second assignment of error, appellant claims that:
{¶25} II. “The Trial Court abused its discretion in failing to allow the Defendant-Appellant to withdraw his plea of no contest pursuant to an Ohio Criminal Rule 32.1 Motion.”
{¶26} For the reasons that follow, we agree.
{¶27} In State v. Xie (1992), 62 Ohio St.3d 521, 526, the Ohio Supreme Court stated that “a pre-sentence motion to withdraw a guilty plea should be freely and liberally granted. But there is no absolute right to withdraw a plea prior to sentencing. The trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.”
{¶28} When reviewing a trial court‘s judgment with respect to a motion to withdraw a guilty plea, an appellate court must use the abuse of discretion standard. Id. The term “abuse of discretion” connotes more than error of law or of judgment; it implies that the court‘s attitude is “unreasonable, arbitrary, or unconscionable.” Id., citing State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶30} Applying the factors set forth in State v. Griffin, 141 Ohio App.3d 551, 2001-Ohio-3203, this court finds that: (1) there is no prejudice to the state; (2) appellant did not have the benefit or expertise of counsel in making his decision to enter a plea of no-contest; (3) the trial court did not comply with
{¶31} Because the trial court did not carefully address appellant‘s understanding of the rights he was waiving prior to entering the no contest plea, we find that appellant‘s plea was not a rational decision, made knowingly, voluntarily, and intelligently, State v. Kirigiti, 10th Dist. No. 06AP-612, 2007-Ohio-6852, and the trial court abused its
IV. CONCLUSION
{¶32} The trial court failed to observe the mandatory recitation of rights established by
{¶33} Wherefore, based upon the foregoing, we find that substantial justice was not done in this matter. We find appellant‘s three assignments of error well-taken. The matter is reversed in its entirety and remanded for further proceedings consistent with this decision and judgment. Appellee is ordered to pay the costs of this appeal pursuant to
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J. _______________________________ JUDGE
Arlene Singer, J. _______________________________ JUDGE
Keila D. Cosme, J. CONCUR. _______________________________ JUDGE
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.sconet.state.oh.us/rod/newpdf/?source=6.