State v. WaltonState v. Walton
{¶1} Frank Walton appeals his minor misdemeanor convictions for speeding and possession of marihuana. At his initial appearance, Walton pleaded no contest to both charges and the trial court imposed sentence. Walton now contends that his convictions should be vacated because the court did not comply with
{¶2} Walton also argues that the trial court abused its discretion by denying his post-sentence motion to withdraw his pleas of no contest. We agree. The record shows that the trial court did not inform Walton of the effect of a no contest pleas as required by
I. OVERVIEW
{¶3} After a traffic stop, an Ohio Highway Patrol trooper issued Walton citations charging him with speeding, in violation of
II. ASSIGNMENTS OF ERROR
{¶4} Walton raises two assignments of error for our review:
1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT-APPELLANT DUE PROCESS OF LAW BY FAILING TO COMPLY WITH THE MANDATES SET FORTH IN
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND A MANIFEST INJUSTICE THAT PREJUDICED DEFENDANT BY DENYING DEFENDANT-APPELLANT HIS
III. LAW AND ANALYSIS
A. Jurisdiction
{¶5} Walton first argues that his convictions should be vacated because the trial court failed to comply with
{¶6}
{¶7} Here, Walton‘s notice of appeal states that he “is appealing * * * from the judgment entered in this action on February 12, 2013,” and attached is the trial court‘s February 12, 2013 denial of Walton‘s “Motion: to reopen case.” Nowhere in his notice of appeal does he reference the sentencing entries filed on December 28, 2012, which form the basis for his convictions.
{¶8} Moreover, Walton filed his notice of appeal on March 11, 2013. Under
B. Motion to Withdraw Pleas
{¶9} In his second assignment of error, Walton argues that trial court erred by denying his motion to withdraw his pleas of no contest.1
1. Crim R. 32.1 and the standard of review
{¶10}
{¶11} “‘[T]he decision to grant or deny a
2. Was Walton‘s plea involuntary?
{¶12} Walton claims that his plea of no contest was not made voluntarily, intelligently or knowingly because the trial court did not “clearly advise” him of his rights and the consequences of his plea in violation of
{¶13} Our review is confined to only those issues raised in Walton‘s motion to withdraw his no contest plea. See State v. Morgan, 10th Dist. Franklin No. 12AP-241, 2012-Ohio-5773, ¶ 26. Walton‘s pro se motion states in its entirety:
I Frank Walton would like to reopen my case to a plea of not guilty[.] I didn‘t understand the fullness of the no contest plea. Wasn‘t aware it would result in a guilty plea and my license would be suspended, and that this would be put on my record.
{¶14} When a defendant fails to raise a specific argument in a post-sentence motion to withdraw his plea, he forfeits the issue for purposes of appeal. State v. Jacobson, 4th Dist. Adams No. 01CA730, 2003-Ohio-1201, ¶ 9. Although we are
{¶15} Walton also argues in his second assignment of error that he “clearly thought his defenses and trial would proceed under a ‘No Contest’ pleading” and but for this misunderstanding he would not have made such a plea. We construe this argument to mean Walton did not understand the effect of his no contest plea. And because Walton raised this issue in his motion with the trial court, we consider the merits of this argument. Id.
{¶16} “To ensure that pleas are knowingly, intelligently, and voluntarily made,
{¶17}
{¶18} “The Supreme Court of Ohio has held that ‘[t]o satisfy the requirements of informing the defendant of the effect of a plea, a trial court must inform the defendant of the appropriate language under
{¶19} Informing a defendant of the effect of his or her plea is a nonconstitutional right and therefore, is subject to review for substantial compliance rather than strict compliance. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. See also State v. Butcher, 4th Dist. Athens No. 09CA31, 2010-Ohio-4877, ¶ 13. “‘Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and thе rights he is waiving.‘” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 15, quoting State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Moreover, “failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.” Griggs at ¶ 12. To demonstrate prejudice, “the defendant must show that the plea would otherwise not have been entered.” Veney at ¶ 15.
{¶20} The state argues that the trial court complied with
{¶21} “While an appellant has a duty to see that a record is complete, he can do no more than request transcripts of all proceedings be prepared,” which Walton did in this case. Marietta v. Shell, 4th Dist. Washington No. 87CA9, 1988 WL 76664, *2 (July 22, 1988) (considering whether the court complied with the requirements of
{¶22} Here, the trial court initially asked Walton if he had watchеd the video in the hallway and if he understood “what his rights are.” Walton answered affirmatively to both questions. However, this alone does not establish that the trial court complied with
{¶23} The trial court engaged in the following exchange with Walton at his initial appearance:
THE COURT: Okay. We can resolve the speeding today.
* * *
THE COURT: Sure. But are you pleading guilty?
WALTON: All right. I want to plead no contest because –
THE COURT: That‘s fine. That‘s fine.
WALTON: - Okay.
THE COURT: Let me just read the card on the speeding. Officers on patrol on 77 on December 13th, around 5:25, observed a black motor vehicle traveling over the posted speed. At the time of the check, the vehicle was in the passing lane passing another vehicle, and the vehicle [inaudible], that he was still in the left lane, that he caught up to the slower traffic [inaudible]. Activated the overheads, the vehicle pulled over. On contact, they asked for license and rеgistration and insurance. The driver gave him his license and insurance but not the registration. When asked for the registration, they checked the glove box.
[Inaudible]. Gave the driver a ticket. The driver and passenger asked [inaudible]. The rest of it has to do with the possession, okay? WALTON: Uh-hum.
THE COURT: All right. On that, the Court makes a finding of guilty of the offense of speed. Is there anything you want to say abоut the speeding ticket? And then we can move on to the possession matter.
WALTON: No, thanks.
* * *
THE COURT: [I]f you‘ve had some [inaudible] that have impacted this case on you, or if you have some legal questions in your mind that you wish to have explored by an attorney, I can either continue your case, or again, I can show a plea of not guilty and set it out for a month or so to let you have some time to decide what you want to do, whether to hire a lawyer to counsel you on the legal issues, or are you willing to dispose of it in some other fashion. I just need to know. I‘m not telling you what to do, okay?
WALTON: What if I would plead no contest on it due to the fact that it was not a normal possession?
THE COURT: Well, see, now you‘re raising a legal issue.
{¶24} The court then continued the case so that Walton could do “some research” and possibly “talk to lawyer, or talk to [his] family.” However, later the court recalled Walton‘s case for a third time that day and the following exchange occurred:
THE COURT: Okay. We‘re on the record on that case.
WALTON: Yes.
THE COURT: 12CRB2153. What do you want to do Mr. Walton?
WALTON: I would like to plead no contest in the hope that you would find me not guilty of the case, because it was not knowingly, and we still don‘t even . . .
THE COURT: Okay. Well let me tаke a very brief recess, because I‘m going to go get the prosecutor, because he needs to be here.
* * *
THE COURT: Mr. Walton, the Court originally entered a plea of not guilty. Ordered the matter set for trial. You‘ve come back into the courtroom. Is there something else that you wish to state?
WALTON: I would like to plead no contest.
THE COURT: Okay. I will accept a plea of no contest.
* * *
THE COURT: All right. Based on the statement of facts, the Court makes a finding of guilty. Is therе anything you wish to say Mr. Walton, before sentence is imposed?
WALTON: Yes. See, I‘m still not knowing that it‘s marijuana, so, I would like to do something, a trial of some sort, ‘cause [inaudible]. So . . .
THE COURT: Okay. Well, a plea of no contest is an admission that the facts are true. Now the officer kept calling the marijuana weed, or some form of marijuana. It‘s not an admission that you‘re guilty but you‘vе been found guilty. Now if you wish to avail yourself of opportunities to withdraw your plea, you can do that. You just need to tell me you need to at this point do something. I can continue this for sentencing for thirty days which would allow you the opportunity if you want to withdraw your plea under a different standard. I can go ahead and sentence you which then creates а different standard for withdrawing your plea. I just need to know what you want me to do now.
WALTON: (No audible response).
THE COURT: Okay. Let me look at this way. You don‘t have any record. You‘re twenty-one. Let me get a recommendation.
THE PROSECUTOR: Judge, in a case like this, typically, obviously it‘s not jailable. The typical recommendation is usually a hundred and fifty and costs; six months license suspension.
THE COURT: Now, he‘s a collegе student. I‘m going to make that a hundred and costs. A hundred and eighty day license suspension.
{¶25} Thus, the record shows that the trial court only explained the effect of Walton‘s pleas after accepting his pleas of no contest, contrary to the requirements of
{¶26} The only evidence in the record indicates that Walton would nоt have otherwise entered such a plea if he had known of its effect. Therefore, the trial court‘s failure to comply with
IV. CONCLUSION
{¶27} Because the trial court did not substantially comply with
JUDGMENT REVERSED AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendenсy of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for furthеr appeal commences from the date of filing with the clerk.