{¶ 2} In his sole assignment of error, Osterfeld contends the trial court erred by finding him guilty in the absence of an "explanation of circumstances" to support each element of the offense.
{¶ 3} The record reflects that Osterfeld originally was charged with petty theft, a first-degree misdemeanor. He later pleaded no-contest to an amended charge of unauthorized use of property. After Osterfeld entered the no-contest plea, the trial court immediately found him guilty. Osterfeld and his attorney then made brief statements in mitigation of punishment, and the trial court sentenced him in accordance with law.
{¶ 4} On appeal, Osterfeld argues that the trial court erred in finding him guilty without any explanation of circumstances, as required by R.C. §
{¶ 5} "If the plea be `no cоntest,' or words of similar import in pleading to a misdemeanor, it shall constitute a stipulation that the judge or magistrate may make a finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly."
{¶ 6} Section
{¶ 7} First, when an explanation of сircumstances is either deficient or entirely absent, there is legally insufficient evidence to support a conviction following a no-contest plea to a misdemeanor. State v.Stewart, Montgomery App. No. 19971,
{¶ 8} Notably, the Ohio Supreme Court has held that a not-guilty plea alone is sufficient to preserve a sufficiency-оf-the-evidence argument for appeal, even where the issue is not raised at trial. State v. Jones,
{¶ 9} Second, even if Osterfeld had waived his challengе to the sufficiency of the evidence by failing to raise the issue in the trial court, it would remain subject to plain-error analysis. In State v.Karasek, Montgomery App. Nos. 17408, 17563,
{¶ 10} The only remaining issue is the remedy for the trial court's error. Thе State urges us to remand the matter for further proceedings to allow an explanation of circumstances to be provided. In support, the Stаte contends Osterfeld's improper conviction resulted from a "defective plea" and that he "did not perform his part of the bargain." The Statе also argues that a remand is appropriate because "jeopardy" never attached given the absence of an explanation of circumstances.
{¶ 11} Upon review, we are not persuaded by either argument. We fully addressed and rejected the State's first argument in Stewart, supra. There we held that a defendant performed his end of a plea bargain by tendering a no-contest plea, which was accepted. "It was then the duty оf the trial court to find him guilty or not guilty. Because there was nothing in the nature of an explanation of circumstances, in the record, upon which the trial court could predicate a finding of guilty, its duty was to find [the defendant] not guilty." Stewart, supra.
{¶ 12} As for the State's second argument, we have held that double-jeopardy principlеs bar a retrial when a conviction is reversed based on the lack of an explanation of circumstances following a no-contest plea. Contrary to the State's argument, this is true regardless of whether the record contains a deficient explanation of circumstances or no еxplanation of circumstances at all. Stewart, supra (reversing a conviction and ordering a defendant discharged where the record containеd at best a deficient explanation of circumstances);Keplinger, supra (reversing a conviction and ordering a defendant discharged where the record contained no explanation of circumstances at all).
{¶ 13} Based on the reasoning set forth above, we sustain Osterfeld's assignment of error. Thе trial court's judgment is reversed and Osterfeld is ordered discharged from any criminal liability.
Judgment reversed.
Wolff, J., and Young, J., concur.
(Hon. Frederick N. Young, Retired from the Court of Appeals, Second Appellate District, Sitting by Assignment of the Chief Justice of the Supreme Court of Ohio).