STATE OF OHIO, Plaintiff-Appellee, - vs - GLORIA A. JONES, Defendant-Appellant.
CASE NO. 2015-A-0068
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
2016-Ohio-6987
[Cite as State v. Jones, 2016-Ohio-6987.]
CYNTHIA WESTCOTT RICE, P.J.
Criminal Appeal from the Ashtabula Municipal Court, Case No. 07 CRB 00630. Judgment: Affirmed.
Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).
Gloria A. Jones, pro se, 5520 Nathan Avenue, Ashtabula, OH 44004 (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Gloria A. Jones, appeals from the judgment of the Ashtabula Municipal Court‘s denial of her Motion to Vacate Void Conviction for Lack of Subject-Matter Jurisdiction. We affirm the trial court‘s denial.
{¶2} On April 23, 2007, appellant returned home at approximately 8:00 a.m. from working an extended shift as an STNA at a nursing facility. After her husband left to take their sons to school, appellant locked the front door, and took her four year old
{¶3} On April 26, 2007, appellant pleaded guilty in the trial court to one count of endangering children. The trial court sentenced her to three days in jail, and a $250 fine, both suspended if she was not charged in the coming year with a similar offense. No appeal was taken.
{¶4} In August 2015, appellant filed her motion to vacate her conviction with the trial court, alleging the trial court lacked jurisdiction over the 2007 misdemeanor. The state opposed, and the trial court denied her motion in a judgment entry filed August 31, 2015. This appeal timely ensued. Appellant assigns three errors for this court‘s review. Her first assignment of error provides:
{¶5} “Where the issuing officer failed to file a sworn original summons in lieu of arrest * * * as required by
{¶6}
{¶7} In misdemeanor cases where a law enforcement officer is empowered to arrest without a warrant, the officer may issue a summons in lieu of making an arrest, when issuance of a summons appears reasonably calculated to assure the defendant‘s
appearance. The officer issuing the summons shall file, or cause to be filed, a complaint describing the offense. No warrant shall be issued unless the defendant fails to appear in response to the summons, or unless subsequent to the issuance of summons it appears improbable that the defendant will appear in response to the summons.
{¶8} Moreover,
{¶9} The summons shall be in the same form as the warrant, except that it shall not command that the defendant be arrested, but shall order the defendant to appear at a stated time and place and inform the defendant that he or she may be arrested if he or she fails to appear at the time and place stated in the summons. A copy of the complaint shall be attached to the summons, except where an officer issues summons in lieu of making an arrest without a warrant, or where an officer issues summons after arrest without a warrant.
{¶10}
{¶11} On April 25, 2007, the citing officer filed a document entitled “Complaint Affidavit-Summons” in the Ashtabula Municipal Court. It alleged on Monday, April 23, 2007, at 1318 P.M., at 5520 Nathan Avenue, Ashtabula, Ohio appellant “did then and there commit the following offense:
{¶12} The document in question, from its face, functioned as a “summons in lieu of arrest” as well as a complaint. It ordered appellant to appear in court at a specified time. Moreover, it provided a written statement of the essential facts constituting the charge as well as the numerical designation of the statute appellant allegedly violated. It was also made upon oath before an individual authorized by law to administer oaths; namely, a deputy clerk.
{¶13} The charging officer signed the “complaint – affidavit – summons” indicating the instrument was “sworn to and acknowledged before” the deputy clerk. The charging instrument in this matter was therefore sufficient.
{¶14} Appellant‘s first assignment of error is without merit.
{¶15} Appellant‘s second assignment of error provides:
{¶16} “If this court finds that the summons in lieu of arrest constitutes the criminal complaint, then in this case, it failed to charge each essential element of [
{¶17} Appellant maintains the complaint was deficient because it failed to allege she was reckless, an essential element of the crime of endangering children. We do not agree.
{¶18} The purpose of a charging instrument, such as a criminal complaint, is to give the defendant adequate notice of the charge. See State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶7. As discussed above, a criminal complaint must contain, in relevant part, “a written statement of the essential facts constituting the offense charged[.]”
{¶19} In this case, the complaint gave a brief description of the essential facts upon which the charge was premised. It also set forth the numerical statutory designation of the offense with which appellant was charged. Under the circumstances, we conclude details were sufficient to put appellant on notice of the charge.
{¶20} Appellant next asserts that because the “complaint – affidavit – summons” was filed on April 25, 2007, rather than April 23, 2007, the date the deputy clerk acknowledged the instrument, it was not properly sworn. Appellant cites no authority for this strange proposition. And we discern no legally compelling basis for holding the two-day lag between the acknowledgement date and the filing date should operate to nullify an otherwise valid acknowledgement.
{¶21} Appellant‘s second assignment of error lacks merit.
{¶22} Appellant‘s third assignment of error provides:
{¶23} “Where the trial court failed to inform defendant-appellant of the nature of the charge, found defendant-appellant guilty, and requested defendant appellant to explain the circumstances, the guilty plea is void.”
{¶24} Where a defendant‘s plea of guilty is not voluntary and knowing, her right to due process has been violated and the plea is void. McCarthy v. United States, 394 U.S. 459, 466 (1969). “Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.” Id.
{¶25} Appellant first contends she was neither informed of the nature of the charge nor permitted to read the charging instrument, in violation of
{¶26} “When, after arrest, the accused is taken before a court or magistrate, or when the accused appears pursuant to terms of summons or notice, the affidavit or complaint being first filed, the court or magistrate shall, before proceeding further:
{¶27} “(1) Inform the accused of the nature of the charge and the identity of the complainant and permit the accused or counsel for the accused to see and read the affidavit or complaint or a copy of the affidavit or complaint;”
{¶28} The transcript of the arraignment, at which appellant appeared due to the “complaint – affidavit – summons,” demonstrates the trial court advised appellant she was charged with child endangering. The trial court did not, however, offer or permit appellant the opportunity to read the instrument. Because the statute mandates that the court allow an accused to read the complaint, the trial court‘s failure to offer appellant the opportunity to do so was error. This error, however, does not suggest appellant‘s plea was not entered knowingly and voluntarily. To the contrary, appellant
{¶29} Appellant next asserts the trial court failed to require the state to provide an “explanation of circumstances,” as required by
{¶30} “Upon receiving a plea of guilty, the court or magistrate shall call for an explanation of the circumstances of the offense from the affiant or complainant or the affiant‘s or complainant‘s representatives unless the offense to which the accused is pleading is a minor misdemeanor in which case the court or magistrate is not required to call for an explanation of the circumstances of the offense. After hearing the explanation of circumstances, together with any statement of the accused or after receiving the plea of guilty if an explanation of the circumstances of the offense is not required, the court or magistrate shall proceed to pronounce the sentence or shall continue the matter for the purpose of imposing the sentence.” (Emphasis added).
{¶31} The record demonstrates that the trial court did not ask the state for an “explanation of circumstances.” Instead, the court asked appellant to explain how the charges arose. After she did so, the trial court momentarily recessed to obtain a copy of the police report. After doing so, the court noted appellant‘s version of events was essentially consistent with the police report.
{¶32} The Supreme Court of Ohio has observed that an “explanation of circumstances” is important in the context of a “no contest” plea because it ensures the
{¶33} Furthermore, in light of Bowers, the “explanation of circumstances” appears to be akin to a sufficiency-of-the-evidence analysis. To wit, the explanation allows a trial court to determine whether the state could produce adequate evidence to support a finding of guilty upon entry of a “no contest” plea. In this respect, it is reasonable to conclude that any argument relating to the court‘s failure to strictly adhere to the requirements of
{¶34} Finally, it is unclear, at least in the instant matter, how the failure to obtain an “explanation of circumstances” from the complainant affected the voluntary character of appellant‘s decision to enter a plea of guilty. As indicated above, the record demonstrates appellant knowingly and voluntarily waived her constitutional rights and entered the plea of her own free volition. In short, the premise of appellant‘s argument
{¶35} Appellant‘s third assignment of error is therefore without merit.
{¶36} For the foregoing reasons, the judgment of the Ashtabula Municipal Court is affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
{¶37} Finding that appellant‘s first assignment of error has merit, I respectfully dissent.
{¶38} “The filing of a complaint invokes the jurisdiction of the municipal court.” State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶12. “[I]n order to constitute a valid complaint,
{¶39} “‘In the absence of a sufficient formal accusation, a court acquires no jurisdiction whatever, and if it assumes jurisdiction, a trial and conviction are a nullity.’ State v. Miller (1988), 47 Ohio App.3d 113, 114, * * *. See, also, Stewart v. State (1932), 41 Ohio App. 351, 353-354, * * *. In State v. Green (1988), 48 Ohio App.3d 121, * * * the charging officer signed the complaint, but did not sign the jurat. The court held that an unsworn complaint ‘is void and any conviction resulting therefrom would be void also.’ Id. at 122, * * *. (Parallel citations omitted.) Akron v. Meissner, 92 Ohio App.3d 1, 3 (9th Dist.1993).
{¶40} The summons in lieu of arrest in this case was signed by both Ms. Jones and Sgt. Dibble at the time he issued it. Thereafter, it was signed by a deputy clerk of the court. However, the form does not contain any line where Sgt. Dibble could have signed it ahead of the jurat. It is not properly sworn, is not a criminal complaint, and did not invoke the jurisdiction of the trial court.1
{¶41} Normally, when a sentence has been served in a criminal case, any attack on the conviction or sentence is moot. State v. Wilson, 41 Ohio St.2d 236, 237 (1975). However, this rule does not apply when there is a possibility that the challenged conviction may result in collateral legal consequences. Id. Ms. Jones completed her sentence in this case some eight years ago. However, she wishes to apply for a limited guardianship of one of her adult sons, who is autistic. As she points out,
{¶42} The trial court should have granted Ms. Jones’ motion to vacate void conviction, as it never had jurisdiction of the misdemeanor alleged.
{¶43} I respectfully dissent.