State of Ohio v. Steven N. Korossy
Court of Appeals No. OT-16-025
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY
August 18, 2017
2017-Ohio-7275
Trial Court No. 15 CR 075
State of Ohio Appellee v. Steven N. Korossy Appellant
DECISION AND JUDGMENT
Decided: August 18, 2017
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Mike DeWine, Ohio Attorney General, Margaret Tomaro and Jocelyn K. Lowe, Assistant Attorney Generals, and Katherine Mullin, for appellees.
James J. Popil, for
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MAYLE, J.
{1} Defendant-appellant, Steven Korossy, appeals the November 18, 2016 judgment of the Ottawа County Court of Common Pleas, convicting him of five counts of attempted unauthorized use of property, and sentencing him to a total of 150 days incarceration, 75 days of which were suspended. For the reasons that follow, we reverse.
{2} Steven Korossy was employed as a police officer for the village of Put-In-Bay in Ottawa County, Ohio. On July 15, 2015, Korossy was indicted on 14 counts of unauthorized use of the Ohio Law Enforcement Gateway, a violation of
{3} The trial court conduсted a plea change hearing on May 18, 2016. The state mistakenly told the court that Korossy would be entering a guilty plea, and the trial court began its examination of Korossy with this misinformation. Korossy corrected the court and clarifiеd that he was entering a plea of no contest. Several times during the plea colloquy, however, the court misspoke, referring to the plea as a “guilty” plea, then correcting itself.
{4} The trial court accepted Kоrossy‘s no contest plea, and with Korossy‘s consent, it found him guilty. The court continued the matter for sentencing on August 15, 2016. At that time, it imposed a sentence of 30 days in the Ottawa County Detention Facility on each count, to be served consecutively, for a total period of incarceration of 150 days. It suspended 75 days conditioned on Korossy remaining law-abiding for two years. Korossy was required to forfeit his Ohio peace officer training certificate.
{5} Korossy аppealed the trial court judgment, and he assigns the following errors for our review:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED APPELLANT‘S FEDERAL AND STATE CONSTITUTIONAL RIGHT TO DUE PROCESS BY FINDING HIM GUILTY AFTER A “NO CONTEST” PLEA WITHOUT EXPLANATION OF THE CIRCUMSTANCES OR ANY ADHERENCE TO CRIM.R. 11 AND
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT CONDUCTED A SENTENCING HEARING WITHOUT FIRST COMPLYING WITH CRIM.R 11 AND
III. THE TRIAL COURT‘S CONSECUTIVE SENTENCE WAS CONTRARY TO LAW WHERE THERE WAS NO FACTUAL BASIS PRESENTED AT THE PLEA HEARING OF ANY CRIMES TO SUPPORT A CONSECUTIVE SENTENCE WITHIN
IV. PURSUANT TO STATE V. LLOYD, 2016-OHIO-331 AND STATE V. PUGH, 2012-OHIO-829, DOUBLE JEOPARDY ATTACHES TO THE CHARGES INVOLVED IN THIS APPEAL, AND THE PROPER REMEDY IS A COMPLETE DISCHARGE OF THE APPELLANT[.]
V. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL[.]
II. Law and Analysis
{6} Korossy‘s five assignments of error all revolve around the same purported defect: the trial court‘s failure to elicit an “explanation of thе circumstances” before finding Korossy guilty on his no-contest plea. That is, before relying upon a no-contest plea to convict a defendant for
{7} In his first assignment of error, Korossy argues that
ineffective for failing to ensure compliance with
{8} As explained further below, we agree with Korossy and find that the trial court failed to elicit the explanation of circumstances required by
A. Korossy Did Not Waive an Explanation of the Circumstances.
{9} The state concedes that no explanation of the circumstances was presented, but it insists that Korossy waived this requirement. The state also maintains that Korossy consented to a finding of guilt, thereby rendering an explanation of circumstances unnecessary.
{10} “A defendant may plead not guilty, not guilty by reаson of insanity, guilty or, with the consent of the court, no contest.” Crim.R. 11(A). A no-contest plea is not an admission of guilt, “but is an admission of the truth of the facts alleged in the indictment, information, or complaint.” Crim.R. 11(B)(1). The court need not take testimony upоn a plea of no contest, however, in misdemeanor cases, it “may make a finding of guilty or not guilty from the explanation of the circumstances of the offense.”
{11} “The State has the burden of ensuring that an explanation of the circumstances is introduced into the record.” (Citations omitted.) Brown at ¶ 5. The explanation must recite facts which, if found to be true, would support a guilty verdict. State v. Schornak, 2015-Ohio-3383, 41 N.E.3d 168, ¶ 10 (2d Dist.), quoting State v. Stewart, 2d Dist. Montgomery No. 19971, 2004-Ohio-3103, *3. “A defendant who pleads no contest has a substantive right to be acquitted where the state‘s statement of facts fails to establish all of the еlements of the offense.” Lloyd, 2016-Ohio-331, 58 N.E.3d 520, at ¶ 19 (6th Dist.).
{12} We have recognized that a defendant may waive the required
[The court]: You are intending to enter a no contest plea to five counts of attempted unauthorized use of the Law Enforcement Gateway, is that corrеct?
[Korossy]: Yes, Your Honor.
[The court]: Do you understand what the allegations are? Do you understand what the offense is?
[Korossy]: I have read the indictment, yes, Your Honor.
The Court: Mr. Henderson, have you had the opportunity to explain to your client the concept of elements of an offense and what the elements of this offense are?
Mr. Henderson: Absolutely, Your Honor.
The Court: Would you waive any further explanation by the Court?
Mr. Henderson: Yes, we would.
{13} Korossy denies that this dialogue evidences his waiver of the presentation of the explanation of the circumstances; rathеr, he insists, it evidences only a waiver of an explanation of the elements of the offense to which he was entering a plea. We agree with Korossy‘s interpretation of this exchange with the court. The explanation that the court inquirеd about was an explanation of the elements of the offense. And as we recognized in Kern, a bare recitation of the statute constituting the offense is not an “explanation of the circumstances” for purposes of
{14} The state also contends that the trial court was not required to call for an explanation of the circumstances here because Korossy consented to a finding of guilt:
[The court]: Is thеre a consent to a finding of guilt in this matter?
Mr. Henderson: Yes, Your Honor.
{15} Contrary to the state‘s position, many Ohio courts have concluded that a defendant‘s stipulation of guilt upon pleading no contest does not by itself constitute a waiver. (Citations omitted.) Schornak, 2015-Ohio-3383, 41 N.E.3d 168, at ¶ 12. Rather, those courts explain, a stipulation to be found guilty following a no-contest plea is no more than an agreement to be found guilty in accordance with
{16} In Brown, the trial court, in its judgment entry, submitted the defendant‘s plea as “No Contest, with a stipulated finding of Guilty.” Id. at ¶ 10. The Third District determined that this еntry did not—by itself—constitute a waiver. “Rather, a no contest plea with a stipulated finding of guilty must be accompanied by conduct on the part of the defendant that objectively indicates a clear intention to waive the exрlanation of circumstances.” Id.
{17} The Brown court distinguished State v. Arnold, 2017-Ohio-326, 72 N.E.3d 715, ¶ 10 (3d Dist.), where it found that the defendant waived the explanation of circumstances requirement. In Arnold, when asked for his plea, the defendant answered
through his counsel, “No contest. Consent to a finding of guilt, Your Honor. And there‘s an actual basis.” Id. The сourt determined that by offering that there was “an actual basis” for a finding of guilt, the defendant went beyond a bare admission of the facts of the complaint and admitted that the facts were sufficient to establish guilt.
{18} We agree with the distinction аrticulated by the Third District. And we find here that Korossy‘s consent to a finding of guilt did not waive the explanation of circumstances requirement. Accordingly, it was incumbent on the court to request an explanation of the circumstances before it could properly make a finding of guilt. Because it failed to do so, we find Korossy‘s first assignment of error well-taken.
B. Korossy‘s Conviction Lacks Sufficient Evidence to Support a Finding of Guilt.
{19} Having found error in the failure to present an explanation of the circumstances before making a finding of guilt, we next address the remedy for this failure—Korossy‘s fourth assignment of error. Korossy argues that double jeopardy attached and he must be discharged. The state argues that the аppropriate remedy is to vacate the convictions and reinstate the original charges. It argues that to do otherwise would allow Korossy to take advantage of error that he invited.
{20} As we explained at length in Lloyd, 2016-Ohio-331, 58 N.E.3d 520, at ¶ 28, error in failing to elicit an exрlanation of the circumstances is more than mere trial error; it is a failure to establish facts sufficient to support a conviction. See also Elsing, 8th Dist. Cuyahoga No. 105231, 2017-Ohio-6891, at ¶ 11. “As such, double jeopardy attaches, thereby prevеnting the state from getting a second chance to meet its burden.” Id.
Accordingly, Korossy has a substantive right to be discharged. We, therefore, find his fourth assignment of error well-taken.
{21} Given our conclusion that (1) the trial court erred in making a finding of guilt absеnt an explanation of the circumstances, and (2) this error requires that Korossy‘s conviction be vacated and that he be discharged, we need not consider Korossy‘s remaining assignments of error.
III. Conclusion
{22} Because the trial court erred in making a finding of guilt without eliciting an explanation of the circumstances, and because double jeopardy attached, prohibiting a new determination of guilt or innocence, we find Korossy‘s first and fourth assignments of error well-taken. We decline to address his remaining assignments of error. We reverse the trial court‘s November 18, 2016 judgment, vacate Korossy‘s conviction, and discharge him. The state is ordered to pay the costs of this appeal under App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
CONCUR.
JUDGE