Cleveland v. Andujar ( 2018 )

[Cite as Cleveland v. Andujar, 2018-Ohio-3571.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106867
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
MERCEDES ANDUJAR
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2017 TRD 027801
BEFORE: S. Gallagher, P.J., Blackmon, J., and Laster Mays, J.
RELEASED AND JOURNALIZED: September 6, 2018
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street, Second Floor
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
City of Cleveland
Director of Law
By: Gina Villa
Assistant City Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Mercedes Andujar appeals her conviction for leaving the scene of an
accident in violation of Cleveland Codified Ordinance 435.17, which includes restitution
being awarded to the victim in the amount of $2,000. In this appeal, Andujar claims the
trial court entered a finding of guilt upon her no contest plea without an explanation of
circumstances as required under R.C. 2937.07. The city concedes the error and the
disposition.
{¶2} According to the transcript of the plea colloquy, Andujar pleaded no contest
to leaving the scene of an accident and the trial court immediately found her guilty. The
city had not offered, and Andujar had not explicitly waived, the explanation of
circumstances. Further, the trial court offered no explanation of what circumstances
gave rise to the finding of guilt. Berea v. Moorer, 2016-Ohio-3452, 55 N.E.3d 1186, ¶
13 (8th Dist.), citing State v. Herbst, 6th Dist. Lucas No. L-03-1238, 2004-Ohio-3157;
Columbus v. Chiles, 2017-Ohio-8376, 87 N.E.3d 260, ¶ 20-21 (10th Dist.). Reversible
error occurs if a trial court enters a finding of guilt on a no contest plea where there was
not an explanation of circumstances or an explicit waiver and such an error is akin to the
failure to establish facts sufficient to support a conviction. Chiles at ¶ 21. In this
situation, double jeopardy attaches, which prevents the city from getting a second chance
to meet its burden. Id.
{¶3} Accordingly, Andujar’s conviction is reversed. This matter is remanded for
the sole purpose of vacating the conviction and discharging Andujar.
It is ordered that appellant recover from appellee 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 municipal
court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR