286 N.E.2d 296 | Ohio Ct. App. | 1971
Defendant, appellant herein, received a traffic citation in which he was charged with reckless operation of a motor vehicle in violation of R. C.
On the date indicated in the affidavit, the defendant appeared in traffic court. He was advised of his rights by the court, orally waived representation by counsel, heard the affidavit read to him by the court, and pled "no contest." The court received and entered the plea. Thereupon, the court turned the traffic affidavit over and read the following *135 which appeared thereon under the heading "Officer's Notes for Testifying in Court":
"Subject going west on Rt. 24 1st control of veh. at a curve Rt. 24 Jeffers Rd. Left north side of road, crossed road Left South side of road. Rolled Veh. 117 ft. in field, leaving Veh. on its top. Driver pined (sic) in Veh. Injuries to Driver passenger Intoxicating beverages (beer) found open and unopen in Veh. AB."
The defendant gave a different version of what happened indicating that his right front wheel had slipped off the pavement onto the berm that had been softened by an earlier rainstorm, and that the car rolled over several times and ended up in a field. Defendant denied knowledge of any beer in the automobile. The court found the defendant guilty.
On appeal, the main contention of the defendant was that the court erred in reading the explanation of the officer on the back of the affidavit as "an explanation of the circumstances."
Two trial courts have reported decisions in which an interpretation of the phrase "explanation of the circumstances" has been made, coupled with the plea of "no contest." InFairlawn v. Fuller,
"The language of the statute permitting a plea of no contest and a finding of either guilty or not guilty `from the explanation of circumstances' lacks definition or limitation. *136 It opens the door to informal statements containing hearsay and opinion, and seems to dispense with testimony under oath and cross-examination."
A further discussion of the phrase "from an explanation of the circumstances" is found in the case of Lyndhurst v.McFarlane,
"A finding of guilty by a judge pursuant to Section
In Lyndhurst, the court, in coming to the conclusion above stated in the syllabus, compared the plea of "no contest" to the old common law plea of "nolo contendere." The trial court further stated that it was clear that the "no contest" plea provided by Ohio statute is not the legal equivalent of the plea of nolo contendere found in Rule
The trial court in Lyndhurst, supra, further indicated that the Ohio Supreme Court in the case of Brookhart v. Haskins,Supt.,
A careful examination of that case does not indicate that the court ruled upon this point precisely. The Supreme Court in itsper curiam opinion did state that "the procedure" (inBrookhart) was unusual, but did not affect the validity of the proceedings. Nor did it constitute a denial of a fair trial. "The procedure" referred to was the agreement in open court between counsel for the defendant and the prosecutor that a full trial would not be necessary even though the defendant did not plead guilty; that the state would have to prove merely aprima facie case; that defendant would not contest the state's case; and that there would be no cross-examination of witnesses. The Supreme Court of Ohio did state, at page 40, the following: "* * * petitioner could have pleaded guilty to these charges *137 * * * or he could have pleaded not guilty * * *. This he did not choose to do. However, petitioner chose a middle ground. In open court, while represented by counsel, petitioner agreed that, although he would not plead guilty, he would not contest the state's case or cross-examine its witnesses but would require only that the state prove each of the essential elements of the crime. * * * No presumption of guilt was created by such agreement. The state was required to prove all the essential elements of the offense. The court, from this evidence then determined the guilt of the accused. * * *"
The court went on to state in Brookhart v. Haskins, supra,
that the petitioner agreed to the procedure in open court and, in effect, such agreement was as binding and enforceable upon him as a like agreement would have been in a civil action, citing the second paragraph of the syllabus in State v.Robbins,
"Agreements, waivers and stipulations made by persons accused of crimes, or by their counsel in their presence, during the course of a trial for crime, are, after the termination of the trial, as binding and enforceable upon such persons as like agreements, waivers and stipulations are upon parties to civil actions. (Paragraph four of the syllabus of State, ex rel.Warner, v. Baer et al., Judges,
The procedure provided under R. C.
"Such plea shall not be construed to import an admission of any fact at issue in the criminal charge in any subsequent action or proceeding whether civil or criminal."
As stated in Schneider, Ohio Criminal Code, Section 7.4 (3rd ed. 1963):
"The `no contest' plea is new to Ohio criminal procedure. Patterned somewhat on the federal `nolo contendere' plea, it has slightly different consequences in that the court or magistrate, after hearing the circumstances, may still make a finding of not guilty. Its principal benefit is to permit a prompt disposition of the case on unsworn and hearsay testimony, thus obtaining the time advantages of a guilty plea without incurring the disadvantage of stipulation of negligence thereby."
Schneider, in the above section, then refers to the report of the Criminal Law Committee, in 31 Ohio Bar No. 19, page 432.
In the comment in the Ohio State Bar Association report referred to, concerning the "no contest" plea, it is stated:
"* * * This plea should have great value in cases of prosecutions for traffic offenses growing out of auto accidents. Presently the accused must defend at great trouble without any particular desire to do so, purely for the purpose of protecting his liability carrier. Or else the essentials of this plea are achieved by stipulation that defendant enters `technical' not guilty plea — and consents to the finding of guilt without trial."
A consideration of the meaning of the phrase "explanation of circumstances" appears at the appellate level of the reported cases for the first time in this court. Interpreting R. C.
"* * * Upon a plea of guilty being received the court or magistrate shall call for explanation of circumstances of the offense from the affiant or complainant or his representatives, and after hearing the same, together with any statement of accused, shall proceed to pronounce sentence * * *.
"If the plea be `no contest' or words of similar import in pleading to a misdemeanor, it shall constitute a stipulationthat the judge or magistrate may make finding of guilty or not guilty from the explanation of circumstances * * *." (Emphasis added.)
Considering these two paragraphs in pari materia, we conclude that the phrase "explanation of circumstances" in the second paragraph of the above section is qualified by the words used in the first paragraph, to-wit: "* * * from the affiant, or complainant or his representatives, and after hearing the same, together with any statement of the accused * * *."
It would appear that the words "together with any statement of the accused" is not necessarily a part of the "explanation of circumstances." Nevertheless, in the case under consideration, the court did call upon the defendant to give a statement and the defendant actually did make a statement which the court had before it in making its finding of guilty.
In Schneider, Ohio Criminal Code, Section 10.1 (3rd. ed. 1963), the following appears:
"* * * Similarly where the plea is `no contest,' the statement of circumstances is required. The complainant's statement serves a dual purpose. Where the plea is one of no contest, it is not only the basis of a finding of guilt or innocence, but also a statement in mitigation of penalty. * * *"
In Footnote 4 of the above, the further statement is made:
"The judge makes finding of guilt or innocence from the explanation of circumstances, an expression attaching *140 only to the complainant's — not the accused's — statement. The essence of the `no contest' plea, is that the accused cannot be heard in defense. Thus any statement by him must be considered as in mitigation of penalty."
Schneider's text, under Section 10.1, further states:
"The provision for statements from both sides of the controversy appears to be in substitution of the more formal allocution in common pleas court procedure which requires the court to ask the defendant whether he has anything to say as to why judgment should not be pronounced against him. (Revised Code Section
We approve this statement from Schneider's text.
Referring, now, to the precise words of R. C.
By this procedure, the defendant is in no way prejudiced, delay is avoided, and the officer issuing the citation is not compelled to spend valuable time in the courtroom waiting for cases to be called.
The judgment of the Maumee Municipal Court is affirmed with costs to the defendant and the cause is remanded to such court for execution of sentence.
Judgment affirmed.
POTTER, P. J., and BROWN, J., concur. *141
