State v. TaylorState v. Taylor
PLAINTIFF-APPELLEE
vs.
WILLIAM TAYLOR
DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas
BEFORE: Dyke, J., Rocco, P.J., and Blackmon, J.
RELEASED: MAY 21, 2009
JOURNALIZED:
ATTORNEY FOR APPELLANT
David L. Doughten, Esq.
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Gregory Mussman, Esq.
Asst. County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
ANN DYKE, J.:
{¶2} On October 15, 2007, the Cuyahoga County Grand Jury indicted appellant on four counts: two counts of drug trafficking in violation of
{¶3} On June 9, 2008, after informing appellant of his rights pursuant to
{¶4} At the summation of the state‘s case, appellant‘s counsel attempted to introduce the testimony of Brian Draper, an individual who would present measurements regarding the schoolyard specifications different than those presented by the state. The trial court refused to allow Draper‘s testimony, noting that when a defendant pleads no contest, he or she pleads to the facts as the state
{¶5} Thereafter and after hearing the state‘s evidence, the trial court found appellant guilty of all offenses as well as the schoolyard specifications. The court sentenced appellant to five years of community control sanctions, ordered he participate in a work release program for 270 days, complete 200 hours of community service, submit to random drug tests, and attend AA/NA meetings.
{¶6} Appellant now appeals and presents two assignments of error for our review. In the interests of convenience, we will address his second assignment of error first. This assignment of error states:
{¶7} “The trial court abused its discretion by accepting the appellant‘s invalid plea.”
{¶8} Here, appellant argues the trial court erred in accepting his plea of no contest because he did not enter the plea knowingly, voluntarily, and intelligently. He argues that the record demonstrates that he misunderstood the effects of the no contest plea. For the following reasons, we agree with appellant.
{¶9} We review de novo the trial court‘s acceptance of a plea in compliance with
{¶10}
{¶11} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
{¶12} “(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
{¶13} “(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
{¶14} “(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.”
{¶16} With regard to the non-constitutional rights enumerated in
{¶17} The right to understand the effect of his no contest plea is a non-constitutional right. See Nero, supra; Sample, supra; State v. Clark, Cuyahoga App. No. 79386, 2002-Ohio-15. Accordingly, we review the record to determine whether appellant subjectively understood the implications of his no contest plea.
{¶18} To understand the effect of a no contest plea pursuant to
{¶19} “The plea of no contest is not an admission of defendant‘s guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.”
{¶20} There is no exact test to determine whether a defendant subjectively understands the effect of his no contest plea. See State v. Carter (1979), 60 Ohio St.2d 34, 38, 396 N.E.2d 757. In order to ensure a defendant does understand the effect, a court must look to all the particular facts and circumstances surrounding the case. Id., citing Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461, overruled in part on other grounds by Edwards v. Arizona (1981), 451 U.S. 477, 68 L.Ed.2d 378, 101 S.Ct. 1880.
{¶21} After reviewing the transcript of the proceedings of the evidentiary hearing regarding the schoolyard specifications, which occurred only days after appellant pled no contest, it is clear that his plea was based upon an erroneous interpretation of the effect of a no contest plea, and thus, was not made knowingly, voluntarily, or intelligently.
{¶22} At the evidentiary hearing, the trial court and appellant‘s counsel engaged in the following discussion after appellant attempted to introduce the testimony of Brian Draper, an individual who would present different measurements regarding the schoolyard specifications:
{¶23} “THE COURT: When you plead no contest you are pleading to the
{¶24} “[DEFENSE COUNSEL]: I am just saying we have opposing facts.
{¶25} “THE COURT: Yes. But a plea of no contest is a plea to the facts as the State would present them at trial. I assume that‘s what we just heard here.
{¶26} “Am I correct in that statement? I believe I am.
{¶27} “[PROSECUTOR]: That‘s the State‘s position, your Honor.
{¶28} “THE COURT: All right. So you wish to make some kind of argument. This is not - - on one hand its an evidentiary hearing, but it‘s the duty of the State to present the evidence that would have been presented at trial. That‘s what you are pleading no contest to.
{¶29} “[DEFENSE COUNSEL]: Well, your Honor, again, as I indicated earlier, in the hearing or trial, I asked that it be considered at trial because there is some disagreement as to whether this is an essential element.
{¶30} “THE COURT: No. It‘s an enhancement. It‘s not an essential element. It‘s an enhancement. I think its quite clear from - - the statute is very clear on that. Normally, if there were no schoolyard specifications, count one would be a felony of the fourth degree. Counts two and three are felonies of the fifth degree and count four would be a felony of the what - -
{¶31} “[PROSECUTOR]: Count four is a felony of the fifth degree because there is no specification.
{¶32} “I would only indicate, your Honor, that my understanding from reading the case law is that it is an essential element.
{¶34} “You are the fact finder. I think that applies.
{¶35} “THE COURT: You plead no contest. That‘s a jury trial. What‘s the difference?
{¶36} “[PROSECUTOR]: Your Honor, I would just submit that for purposes of this hearing the State‘s understanding is there was a no contest plea to the indictment.
{¶37} “THE COURT: With the schoolyard specification they wanted an evidentiary hearing on whether or not the State would have proved the - -
{¶38} “[PROSECUTOR]: - - schoolyard specification.
{¶39} “THE COURT: So all right. I will conclude that the hearing is now finished. That the evidence will be taken under advisement. I am going to step down. I do not believe that your statement of the law is correct in entering the no contest plea.
{¶40} “If you wanted to take – if you felt that this was an element that they could not prove, you have to take it to trial whether it be to the bench or otherwise. You plead no contest to the counts with the caveat that there would be an evidentiary hearing as to the schoolyard specification. They either had the evidence or they didn‘t. So all right.
{¶42} “THE COURT: That‘s not what you did.
{¶43} “[DEFENSE COUNSEL]: Well, would we be able to make arguments?
{¶44} “THE COURT: I am going to step off the bench here.
{¶45} “[DEFENSE COUNSEL]: Thank you, your Honor.”
{¶46} Additionally, when the judge returned to the courtroom and found appellant guilty of all charges in the indictment, the following exchange occurred between the court and defense counsel:
{¶47} “[DEFENSE COUNSEL]: Your Honor, may I proffer for the record or offer any cases to proffer for the record?
{¶48} “THE COURT: No. Because you plead no contest. The plea of no contest is an admission of the facts in the case. The State has presented the facts of the case in this particular matter.
{¶49} “[DEFENSE COUNSEL]: I was not allowed to present anything in opposition.
{¶50} “THE COURT: That‘s right. Because you are admitting to the facts of the case. A plea of no contest is an admission of the facts of the case, not an admission of guilt. It‘s up to the court based on everything that it has heard to enter that ruling. * * *”
{¶52} We acknowledge that the trial court asked appellant at the plea hearing whether he understood “that by entering your plea of no contest you are not admitting your guilty but admitting the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against you in any subsequent civil or criminal proceeding” and that appellant responded in the affirmative. However, even if it is entirely plausible that the defendant understands the effect of his no contest plea, the record must demonstrate that understanding. See State v. Blair (1998), 128 Ohio App.3d 435, 437-438, 715 N.E.2d 233. A mere affirmative response to the question whether he understands the effect of his no contest plea, absent more, is insufficient to support the necessary determination that he understands. See id. at 438. Accordingly, we find appellant‘s no contest plea was not entered knowingly, voluntarily, or intelligently.
{¶54} Consequently, we reverse and remand for proceedings consistent with this opinion.
Judgment reversed and remanded.
It is ordered that appellant recover from appellee his costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. Case remanded to the trial court for further proceedings.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANN DYKE, JUDGE
KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR