Case Information
*1
[Cite as
State v. Walton
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : Case No. 13CA9
:
Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY :
FRANK A. WALTON :
: RELEASED: 02/13/14 Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Adam J. Baker, Athens, Ohio, for appellant.
Paul G. Bertram, III, Marietta City Law Director, and Catherine Ingram Reynolds, Marietta City Assistant Law Director, Marietta, Ohio, for appellee. ______________________________________________________________________
Harsha, J. 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 Crim.R. 5(A), 10 and 11(E). However, because Walton did not file a timely appeal from the trial court’s sentencing entries, we lack jurisdiction to consider his first assignment of error, and must dismiss it. 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 Crim.R. 11(E) and Traf.R. 10(D), until after it accepted his pleas. And because the totality of circumstances shows that Walton did not subjectively understand the implications of his plea, the trial court failed to substantially comply with Crim.R. 11(E) and Traf.R. 10(D). Moreover, Walton would not have otherwise entered such pleas, i.e. he was prejudiced by the trial court’s failure to substantially comply with these rules. Because allowing his no contest pleas to stand would be a manifest injustice, we reverse the trial court’s decision.
I. OVERVIEW After a traffic stop, an Ohio Highway Patrol trooper issued Walton citations
charging him with speeding, in violation of R.C. 4511.21, and possession of marihuana less than 100 grams, in violation of R.C. 2925.11, both minor misdemeanor offenses. At his initial appearance, Walton appeared without counsel and pleaded no contest to both charges. The trial court imposed sentence and thereafter, Walton filed a motion to “reopen case,” in which he requested the trial court allow him tо change his plea to not guilty because he did not fully understand the consequences of his no contest plea. The trial court denied the motion and this appeal followed.
II. ASSIGNMENTS OF ERROR 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 OHIO CRIMINAL RULES 5(A), 10 AND 11(E).
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND A MANIFEST INJUSTICE THAT PREJUDICED DEFENDANT BY DENYING DEFENDANT-APPELLANT HIS CRIMINAL RULE OF PROCEDURE 32.1 MOTION TO WITHDRAW HIS UNCOUNSELED NO CONTEST PLEA WHICH WAS NOT VOLUNTARY, INTELLIGENTLY OR KNOWINGLY MADE. SUCH DENIAL OF SAID CRIMINAL RULE OF PROCEDURE DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND VIOLATED OHIO CRIMINAL RULE 44(B) AND (C).
III. LAW AND ANALYSIS
A. Jurisdiction
{¶5} Walton first argues that his convictions should be vacated because the trial court failed to comply with Crim.R. 5(A), 10 and 11(E). However, because we lack jurisdiction to consider his first assignment of error, we must dismiss it.
{¶6}
App.R. 3(D) states that the notice of appeal “shall designate the judgment,
order or part thereof appealed from * * *.” We are without jurisdiction to review a
judgment or entry not designated in an appellant’s notice of appeal. State v. Watters ,
8th Dist. No. 97656,
App.R. 4(A), a notice of appeal must be filed with 30 days of entry of the judgment or
order being appealed. And because Walton challenges the trial court’s compliance with
the rules of criminal procedure at his initial appearance, the time for appeal began to run
with the court’s filing of his sentencing entries on December 28, 2012. State v. Jordan ,
4th Dist. Gallia No. 00CA16,
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 Crim. R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the
court after sentence may set aside the judgment of conviction and permit the defendant
to withdraw his or her plea.” A defendant seeking to withdraw his plea after sentencing
has the burden to establish that a manifest injustice will occur if the plea stands. State v. Smith ,
sound discretion of the trial court * * *. Appellate review of the denial of a post-sentence
motion to withdraw a guilty plea is therefore limited to a determination of whether the
trial court abused its discretion. The term “abuse of discretion” connotes an attitude on
the part of the court that is unreasonable, unconscionable, or arbitrary.’” Id. at ¶ 22,
quoting State v. Whitaker , 4th Dist. Scioto No. 10CA3349,
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 Crim.R. 5(A), 10(C) and 11(E). Specifically, Walton contends that the trial court did not advise him of 1.) his right to counsel; 2.) his right not to make incriminating statements; 3.) the points he would receive on his license as a result of his speeding conviction; and 4.) the loss of his federal financial aid as a result of his possession of marihuana conviction. Walton also argues that he did not knowingly, voluntarily and intelligently waive his right to counsel in violation of the Sixth Amendment to the Unitеd States Constitution and Article I, Section 10 of the Ohio Constitution, as well as Crim.R. 44(B). However, Walton did not raise these issues in his motion with the trial court. 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,
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. 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,
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. “To ensure that pleas are knowingly, intelligently, and voluntarily made,
Crim.R. 11 sets forth specific procedural requirements the trial court must follow,
depending upon the level of offense to which the defendant is pleading . ” State v.
Zarconi, 7th Dist. Mahoning No. 11 MA 207,
informing the defendant of the effect of a plea, a trial court must inform the defendant of
the appropriate language under Crim.R. 11(B).’” State v. Hilderbrand , 4th Dist. Adams
No. 08CA864,
{¶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 ,
Traf.R. 10(B) at the outset of Walton’s initial appearance by showing him a video recording that explained the effect of a no contest plea. However, there is no transcript or copy of the video included in the record. “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,
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 [inаudible]. Activated the overheads, the vehicle pulled over. On contact, they asked for license and registration 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, thе Court makes a finding of guilty of the offense of speed. Is there anything you want to say about 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. 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 оf the case, because it was not knowingly, and we still don’t even . . .
THE COURT: Okay. Well let me take 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 thе statement of facts, the Court makes a finding of guilty. Is there 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 аn admission that you’re guilty but you’ve 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 college student. I’m going to make that а hundred and costs. A hundred and eighty day license suspension. 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
Crim.R. 11(E) and Traf.R. 10(D). And given the totality of circumstances in the record
before us, we cannot conclude that Walton subjectively understood the implicatiоns of
his plea. Thus, the trial court failed to substantially comply with Crim.R. 11(E) and
Traf.R. 10(D). However, in order to vacate a plea for failure to inform the defendant of
the plea’s effect, there must be prejudice to the defendant, which means the plea would
not have otherwise been entered. Jones ,
оtherwise entered such a plea if he had known of its effect. Therefore, the trial court's failure to comply with Crim.R. 11(E) and Traf.R. 10(D) was prejudicial.
IV. CONCLUSION Because the trial court did not substantially comply with Crim. R. 11(E)
and Traf. R. 10(D) and this non-compliance prejudicially affected Walton, allowing his no contest pleas to stand would be a manifest injustice. Accordingly, the trial court abused its discretion in denying Walton’s motion to withdraw his no contest pleas. We sustain his second assignment of error, reverse the trial court’s judgment, and remand the case for further proceedings consistent with this opinion.
JUDGMENT REVERSED AND CAUSE REMANDED.
JUDGMENT ENTRY 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 pendency of proceedings in that court. If a stay is continued by this еntry, 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 further appeal commences from the date of filing with the clerk.
Notes
[1] Walton cоntends that he filed a motion to withdraw his no contest pleas under Crim.R. 32.1, but that is not reflected on the face of his motion. Rather, Walton filed a pro se “Motion: to reopen case,” in which he requested that the trial court reopen his case “to a plea of not guilty.” However, the trial court appropriately treated Walton's motion as a motion to withdraw his plea of no contest .