STATE OF OHIO, PLAINTIFF-APPELLEE, v. SUSAN M. TAYLOR, DEFENDANT-APPELLANT.
CASE NO. 13-12-25
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT SENECA COUNTY
November 5, 2012
[Cite as State v. Taylor, 2012-Ohio-5130.]
Appeal from Fostoria Municipal Court Trial Court No. TRD1101708 Judgment Reversed and Cause Remanded
Beryl W. Stewart for Appellant
Timothy J. Hoover for Appellee
{¶1} Defendant-Appellant, Susan M. Taylor (“Taylor“), appeals the judgment of the Fostoria Municipal Court finding her guilty of wrongful entrustment after she entered a plea of no contest. On appeal, Taylor contends that the trial court erred in not permitting her to withdraw her no contest plea because she claims that the trial court failed to prоperly inform her of her rights pursuant to
{¶2} Taylor was issued a uniform traffic citation for the wrongful entrustment of a motor vehicle in violation of
{¶3} Taylor originally entered a plea of not guilty, and the case was set for a bench trial on March 28, 2012. Prior to beginning the proceedings, there was a discussion between the trial court, Taylor‘s attorney, and the prosecutor about what version of the statute and penalty was applicable. (3/28/2011 Tr. 4-7). The offense had been committed on September 1, 2011, and
{¶4} Upon the continuation of the proceedings, Taylor‘s attorney requested a short recess to discuss possible settlement with the prosecutor. Thereafter, the trial court wаs informed that Taylor wished to change her plea to “no contest.” (Id.)
{¶5} Prior to accepting the change of plea, the trial court inquired to ascertain whether Taylor understood that the offense was a misdemеanor of the first degree, as specified by the statute that was in effect on September 1st. (3/28/12 Tr. 8-9) The trial court confirmed that Taylor understood that by entering a plea of no contest, she could be found guilty of the offense and sentenced to up to six months in jail and/or a fine of up to $1,000. (Id.) The trial court also confirmed that Taylor‘s prior request for a jury had been withdrawn. (Id.)
{¶6} Taylor‘s attorney then entered a plea of no contest on her bеhalf and the trial court made a finding of guilty. The trial court ordered a presentence report and scheduled the sentencing hearing for May 8, 2012.
{¶8} On the date of the previously scheduled sentencing hearing, the trial court held a hearing on the mоtion to withdraw the plea. Taylor stated that she wished to withdraw her plea because, at the time of the hearing, she was stressed and worried about her children and was not thinking clearly. (5/8/2012 Tr. 2-3) Her attorney also argued that new fаcts and research had also led him to believe that she would be found innocent of the offense because her son‘s actions had exceeded the scope of the permission that Taylor had given him, speсifically, to drive only on their property. The State opposed the motion to withdraw and argued that a change of heart or a mistaken belief about a guilty plea did not constitute a basis for the withdrawal of a plea.
{¶10} On May 15, 2012 a sentencing hearing was held, and “[b]ased upon the nature of the case, defendant‘s history and the circumstances,” the trial court sentenced Taylor to serve 180 days, with 90 days to be served at the Seneca County jail; 60 days through Electronic Home Monitoring (if eligible); and 30 days suspended on the condition that Taylor complete an alcohol assessment and treatment program, that she complete a parenting program, and that she submit to random alcohol/drug screens as ordered by probation. (May 15, 2012 J.E.)1 Taylor was placed on three years’ probation and ordered tо pay all costs, but no fine was imposed.
{¶11} Taylor filed a motion to stay sentence pending appeal, which was granted by the trial court. Taylor now appeals her conviction, raising the following assignment of error for our review.
The trial court erred in failing to advise [Taylor] of any of her rights, i.e., the right to see the witnesses against her, her right to have the witnesses cross-examined at trial, that she also had the right not to be required to testify at trial unless she desired to do so, and that the State cannot comment on her failure to testify as required by
Ohio Crim.R. 11(E) .
{¶12} In her sole assignment of error, Taylor submits that the trial court erred in denying her motion to withdraw her plea of no contest. Taylor asserts that the trial court failed to conduct a proper
{¶13}
{¶15} Our review of thе record demonstrates that the trial court failed to properly advise Taylor of the effects of her plea, although not for the reasons discussed by either Taylor or the State. The trial court was mistaken when it informed Taylor that she should be sentenced under the prior version of the statute that provided for up to a six-month jail sentence. Taylor should have been permitted to withdraw her plea, because she was given the wrong information
{¶16} Generally, the amendment or enactment of a statute will apply prospectively, and will not affect the prior operation of the statute or “[a]ffect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal.”
If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or рunishment, if not already imposed, shall be imposed according to the statute as amended.
{¶17} In this case, the offense in the statute remains the same. However, the amendment reduces the potential punishment by stating that a violation is now an unclassified misdemeanor, not a misdemeanor of the first degree,2 and that the offender is not subject to a jail sentence.
(C) Whoever violates this section is guilty of wrongful entrustment of a motor vehicle and shall be punished as provided in divisions (C) to (H) of this section.
(1) Excеpt as provided in division (C)(2) of this section, whoever violates division (A)(1), (2), or (3) of this section is guilty of an
unclassified misdemeanor. When the offense is an unclassified misdemeanor, the offender shall be sentenced pursuant to sections
2929.21 to2929.28 of the Revised Code, except that the offender shall not be sentenced to a jail term; the offender shall not be sentenced to a community residential sanction pursuant to section2929.26 of the Revised Code; notwithstanding division (A)(2)(a) of seсtion2929.28 of the Revised Code, the offender may be fined up to one thousand dollars; * * *.
(Emphasis added.)
{¶18} Because the earlier version of the statute provided for the imposition of up to a six-month jail sentence, the punishment was reduced by the amendment of the statute. Both the acceptance of her plea and the sentencing occurred after the effective date of the amendment. Therefore, Taylor should have been sentеnced subject to the lesser sentence imposed by the amended statute, pursuant to the requirements of
{¶19} Having found error prejudicial to the Appellant herein in the particulars assigned and argued, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed and Cause Remanded
SHAW, P.J. and PRESTON, J., concur.
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