State v. SchusterState v. Schuster
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.
Bock, Judge.
{1} In these consolidated appeals, defendant-appellant Martin Schuster argues that the trial court failed to advise him of the effects of his no-contest pleas as required by
I. Facts and Procedure
{2} In 2020, police cited Schuster for operating a car under the influence (“OVI“) in violation of
{3} In February 2021, the state charged Schuster with three additional misdemeanor offenses: OVI in violation of
{4} Schuster pleaded no contest to all six counts. After a short plea colloquy and an explanation of circumstances, the trial court accepted his pleas and found him guilty of all six offenses. Beginning with the 2021 offenses, the trial court merged the OVI charge into the refusal charge and sentenced Schuster to 180 days in jail, with 135 days suspended and 45 days in an alternative-sentencing program. For the 2021 reasonable-control charge, the trial court remitted costs and issued no fine. Turning
{5} Weeks later, the state charged Schuster with violating the terms of his probation after he was seen driving from the probation center. Schuster pleaded no contest. Following a colloquy and the state‘s explanation of circumstances, the trial court accepted his plea, found him guilty, imposed jail time, and declared him eligible for extended in-patient treatment. Schuster appeals in two assignments of error.
II. Law and Analysis
{6} First, Schuster argues that the trial court failed to advise him of the effects of his no-contest pleas at his two hearings. Second, he maintains that the state‘s explanation of circumstances failed to present facts that would establish elements of his 2020 OVI and refusal charges.
A. The trial court failed to advise Schuster of the effect of his no-contest pleas.
{7} Schuster contends that the trial court completely failed to advise him of the effects of his no-contest pleas as required by
{8} The parties agree that Schuster was charged with, and convicted of, first-degree misdemeanor offenses, which constitute petty offenses under
{9} For petty offenses, the trial court “shall not accept [a no contest] plea[] without first informing the defendant of the effect of the plea.”
{10} Rather, the trial court must convey
{11} We begin with the trial court‘s compliance with
{12} At the first hearing, the trial court advised Schuster that “a no contest plea, as long as the City reads facts into the record that constitute a violation of Ohio law, I‘m likely to find you guilty and impose a sentence.” At the second hearing, the trial court provided a similar advisement, explaining that “[a] no contest plea, as long as I read facts in the record about your probation violation, as long as it violates – it constitutes a violation of your probation, I‘m likely to find you guilty and impose a sentence.” And at both hearings, Schuster indicated that he understood and wanted to enter no-contest pleas. The trial court found him guilty.
{13} The state contends that the trial court substantially complied with
{14} Because the trial court‘s advisement did not substantially comply with
{15} We hold that the trial court completely failed to advise Schuster of the effects of his no-contest pleas as required by
B. The state failed to establish the elements of refusing a chemical test.
{16} In his second assignment of error, Schuster maintains that the trial court erred when it found him guilty of OVI and refusing a chemical test in 2020. Specifically, he argues that the state‘s explanation of circumstances for those offenses failed to establish a factual basis to satisfy essential elements of each offense.
{17} Under both
{18} The state began with the 2020 offenses:
Your Honor, as it relates to case 20TRC19624, on or about September 14th, 2020, at approximately 11:32 p.m., the defendant operated a motor vehicle upon a public highway, 1825 Fairmount Avenue, in Cincinnati, Hamilton County, Ohio, while under the influence of alcohol and/or drugs of abuse. He refused a chemical test as required under
4511.19A2 and operated that motor vehicle without a driver‘s license. FRA was marked no. In that instance, no crash.
Subsequent to being arrested for operating the vehicle * * *, being asked by a law enforcement officer to submit to a chemical test or tests under
[R.C. 4511.191] , and being advised by the officer in accordance with[R.C. 4511.192] of the consequences of the person‘s refusal or submission to the test or tests, refuse to submit to the test or tests.
In other words, an OVI conviction within 20 years of Schuster‘s 2020 OVI is an element of the offense under
{20} We agree that the state failed to establish a factual basis for Schuster‘s 2020 refusal to take a chemical test. There is nothing in the state‘s explanation of circumstances that establishes that Schuster had an OVI within the 20 years before September 2020. Moreover, there was no written plea agreement and no mention in the hearing transcript that Schuster knowingly admitted to the facts alleged in the complaint. Compare City of Girard v. Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.3d 151, ¶ 3. While the state argues that it later established that Schuster had a prior OVI conviction within 20 years, the state made clear that this fact related to his refusal to take a chemical test during his 2021 arrest. The state explained, “As it relates to 21TRC2913, on or about February 4th, 2021, at approximately 11:41 a.m., the defendant * * * refused a chemical test under
{21} Because the state‘s explanation of circumstances failed to establish an essential element of refusing a chemical test in violation of
{22} Schuster also argues that the state failed to establish the elements of his 2020 OVI charge. But the trial court merged that charge into the charge for refusing a chemical test in 2020 before sentencing Schuster. As such, Schuster was not sentenced for the 2020 OVI and was never convicted of that charge. See State v. Payne, 11th Dist. Ashtabula No. 2014-A-0001, 2014-Ohio-4304, ¶ 27. Without a conviction there is no final appealable order, and we lack jurisdiction to address Schuster‘s challenge to his 2020 OVI charge. Id. Therefore, we sustain Schuster‘s second assignment of error as it relates to the refusal charge.
III. Conclusion
{23} The trial court completely failed to advise Schuster of the effects of his no-contest pleas as prescribed by
Judgment accordingly.
ZAYAS, P.J., and WINKLER, J., concur.
Please note: The court has recorded its entry on the date of the release of this opinion.