STATE OF OHIO v. TERESA GUERRIERO
CASE NO. 12 MA 48
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 14, 2012
2012-Ohio-5990
Hоn. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 11CRB2393. JUDGMENT: Affirmed.
For Plaintiff-Appellee: Atty. Dana Lantz Youngstown City Prosecutor Atty. Kathleen Thompson Assistant Prosecutor 26 S. Phelps Street Youngstown, Ohio 44503
For Defendant-Appellant: Atty. James R. Wise Betras, Kopp & Harshman, LLC 6630 Seville Drive Canfield, Ohio 44406
Summary
{¶1} Appellant, Teresa Guerriero, entered a no contest plea to one count of domestic violence pursuant tо a
Factual and Procedural History
{¶2} The record transmitted on appeal does not include the arrest report or statements taken at the scene, or any other material fully explaining the incident that resulted in Appellant‘s arrest. The record before us appears to reflect that on the evening in question, Appellant left her daughter at home with her mother while she went to a bar with her sister. Appellant was intoxicated when she left the bar around 2:25 a.m. At that point, it appears someone attempted to accost her. Impaired and upset by this latest event, Appellant and her sister returned home where, around 3:15 a.m., Aрpellant physically attacked her fifteen-year-old daughter. Other than the fact that a physical attack of some kind occurred, the exact nature or manner of the attack is not described in the record. According to the court, the attack was unprovoked.
{¶3} The state filed two criminal complaints against Appellant. The first, a violation of Youngstown City Ordinance 509.03 (b)(2), stated that Appellant “DID, WHILE VOLUNTARILY INTOXICATED: ENGAGE IN CONDUCT OR CREATE A CONDITION THAT PRESENTS A RISK OF PHYSICAL HARM TO THE OFFENDER OR ANOTHER, OR TO THE PROPERTY OF ANOTHER IN VIOLATION OF YOUNGSTOWN CITY ORDICANCE [SIC].” (11/14/11 Criminal Compl.). The second, a violation of
{¶4} Appellant appeared with her counsel at her plea hearing on February 6, 2012. At the hearing, she entered into a
THE COURT: * * * There is a potential penalty of a fine up to $1,000, a potential jail sentence up to six months in jail. Teresa Guerriero, I see you intend to change your plea from not guilty to no contest. I am to inform you that a no contest plea stipulates that the Court may make a finding of guilty or not guilty based on the facts presented or a stipulation as we have here and that the probabilities are that you will be found guilty. Given that information and understanding, you are changing your plea to --
[APPELLANT]: No contest.
THE COURT: Very well. Further, a no contest plea waives certain legal rights. It waives your right to a trial, a jury trial, to confront your accuser, to ask questions and cross examine any and all witnesses the State would bring forward to testify against you at a trial, your right to subpoena witnesses who would come and testify on your behalf, rеmain silent, raise any and all defenses you may have, to testify at your own trial among other constitutional and statutory rights. Do you understand that you would be waiving those rights?
[APPELLANT]: Yes.
THE COURT: Very well. There is a finding of guilt. As to count two, the disorderly conduct charge, the State is moving to dismiss that matter. The motion to dismiss is granted. That matter is hereby dismissed. The Court is going to order a presentence investigation and this matter will be set for sentencing.
(Tr., pp. 4-6.)
{¶5} Apрellant‘s sentencing hearing was held on March 5, 2012. The court had before it a presentencing report, the probation officer‘s recommendations, and a written statement from the victim, Appellant‘s fifteen-year-old daughter, who was present at the hearing but did not wish to speak. The court allowed Appellant to speak on her own behalf and also listened to the testimony of family membеrs. The court declined to hear testimony from a couple who employed Appellant to care for their developmentally disabled child. According to the court at sentencing, Appellant and her family described a version of the events of that night that was very different from the facts reflected in the arrest report and statement of the officer at the scene. At the sentencing hearing, Appellant maintained that she had no memory of that night. Appellant‘s sisters testified that It was their belief that Appellant was drugged by someone at the bar where Appellant and one of her sisters were relaxing. According to this sister, when she and Appellant left the bar Appellant was mugged, and her subsequent uncharacteristic behavior toward her daughter at home resulted from excitemеnt and agitation due to the mugging and alleged drugging. Appellant‘s sisters stated that Appellant was a good mother and she would not have acted against her daughter physically if not for the earlier events of the night. They stated
{¶6} Appellant spoke on her own behalf at the sentencing hearing and told the court that she had no recollection of that night and knew only what her family had told her. She аlso admitted, however, that she was never treated for any medical condition stemming from the incident or for memory loss, and could provide no medical explanation for her actions. She stated that she was not a violent person, and that her alleged behavior that night was not reflective of her general behavior towards her daughter.
{¶7} The court concluded, based on the informatiоn in the presentencing report, the statements given by her family members on the night, and the statement of the victim (which the court found particularly compelling) that Appellant was not credible. The court also stated that it, instead, agreed with the observations and recommendations of Appellant‘s probation officer.
{¶8} After reading the probation officer‘s recommendation into the record, the trial court allowed counsel and Appellant to respond. The court then sentenced Appellant to thirty-two days in jail, with credit for time served; a fine; two years of intensive probation; drug and alcohol assessment and the completion of any recommended treatment; random drug and/or alcohol screenings; anger
{¶9} Appellant sought and was granted on March 9, 2012, a stay of execution of her sentence on the condition that Appellant have no contact with the victim, abide by all laws of the State of Ohio and comply with any additional terms imposed by her personal recognizance bond.
Argument and Law
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY OF DOMESTIC VIOLENCE AFTER A PLEA OF NO CONTEST.
{¶10} Appellant argues that the trial court did not adequately inform her of the meaning of her no contest plea and failed to determine whether she entered her plea knowingly and voluntarily. Appellant contends that her plea is governed by
{¶12} Pursuant to
{¶14} Appellant also claims that the trial court did not adequately inform her of the other rights she waived by entering her plea, primarily due to the brevity of the plea hearing. Although she does not separately assign this allegеd deficiency as error, we will address it. According to the Supreme Court and
The court * * * should advise the defendant of his right to a trial by jury or to the court; the burden upon the prosecution to prove his guilt beyond a reasonable doubt if he were to go to trial; his right to cross examinе the witnesses called against him; his right not to testify; and his right to subpoena any witnesses he may have in his own defense. The court should further advise the defendant that, if he pleads no contest, the court will make a finding with regard to the defendant‘s guilt
or innocence, based upon an explanation of the circumstances as they are set forth in the complaint, as they are presented by the prosecution, or as they are presented by the complainant.
Id. at ¶16. The transcript of Appellant‘s plea hearing reflects that the trial court specifically informed her that in making her plea she waived her:
[R]ight to a trial, a jury trial, to confront your accuser, to ask questions and cross examine any and all witnesses the State would bring forward to testify against you at a trial, your right to subpoena witnesses who would come and testify on your behalf, remain silent, raise any and all defenses you may have, to testify at your own trial among other constitutional and statutory rights.
(Tr., pp. 5-6.) The trial court also explained that in entering a no contest plea, Appellant “stipulates that the Court may make a finding of guilty or not guilty based on the facts presented” and “the probabilities are that you will be found guilty.” (Tr., pp. 4-5.)
{¶15} While thе language used by the trial court does not exactly mimic the language the Court advises in Watkins and in Jones, it substantially complies. “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Appellant does not challenge the colloquy as to the information regarding waiver of certain constitutional rights. Apрellant challenges the trial court‘s advice as to the effect of
{¶16} Even if the trial court had not substantially complied with the legal requirements, here, Appellant would be required tо demonstrate prejudice resulting from any omissions or deviations in the court‘s explanation of the effect of her plea. In this instance, Appellant has made no such showing. Jones, supra, ¶52: “[f]ailure to comply with nonconstitutional rights [such as the information in
{¶17} Appellant‘s plea was governed by
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT.
{¶18} Misdemeanor sentences are reviewed for an abuse of discretion.
Conclusion
{¶19} The trial court substantially complied with the notice requirements of
Donofrio, J., concurs.
DeGenaro, J., concurs.