State v. Agosta ( 2011 )

[Cite as State v. Agosta, 2011-Ohio-5090.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 11-CA-08
:
:
BRIAN P. AGOSTA : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Fairfield County
Municipal Court Case No. 10-CRB-
01749
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: September 29, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHANIE L. HALL SCOTT P. WOOD
Assistant City Prosecutor Dagger, Johnson, Miller, Ogilvie &
City of Lancaster Law Director’s Office Hampson
123 East Chestnut Street 144 East Main Street
P.O. Box 1008 P.O. Box 667
Lancaster, Ohio 43130 Lancaster, Ohio 43130
[Cite as State v. Agosta, 2011-Ohio-5090.]
Edwards, J.
{¶1} Appellant, Brian Agosta, appeals a judgment of the Fairfield County
Municipal Court convicting him of abusing harmful intoxicants (R.C. 2925.31). Appellee
is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On July 28, 2010, Officer Eric Spiegel of the Lancaster Police Department
found appellant asleep or unconscious in the driver’s seat of his motor vehicle while
stopped at a stop sign. The officer found three canisters in the vehicle, including one on
appellant’s lap. After the officer turned the car off and awakened appellant, he asked
appellant about the canister that had been on appellant’s lap. Appellant responded that
it was compressed air and he was using it to get high.
{¶3} Appellant was charged with one count of abusing harmful intoxicants. The
case proceeded to bench trial in the Fairfield County Municipal Court. Following trial,
the court made a finding of guilty from the bench. However, the judgment of conviction
and sentence issued by the trial court indicates that appellant entered a plea of guilty.
Appellant assigns two errors on appeal:
{¶4} “I. THE TRIAL COURT ERRED IN ADMITTING HEARSAY
STATEMENTS AT TRIAL.
{¶5} “II. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT
OF ABUSING HARMFUL INTOXICANTS.”
Fairfield County App. Case No. 11-CA-08 3
I, II
{¶6} As noted in the statement of facts and case, this case appears from the
record to have been tried to the bench, as we have a transcript of a bench trial.
However, the court’s judgment states:
{¶7} “The above named Defendant appeared in Court on 1-18-11, and entered
a plea of GUILTY to the charge of ABUSING HARMFUL INTOXICAN (sic), in violation
of Section 2925.31 of the Ohio Revised Code/City Ordinance.”
{¶8} Following this statement, the form entry includes a series of boxes to be
checked for “manner of conviction,” with the choices being plea, no contest plea, court
trial or jury trial. The trial court did not check a box indicating the manner of conviction
was bench trial or plea. The court then goes on to make a finding of guilty and
sentence appellant.
{¶9} It appears from the record of the trial that the court’s judgment entry
incorrectly reflects the manner of conviction. Because a court speaks through its
journal, it is imperative that the court’s journal reflect the truth. State ex rel. Worcester
v. Donnellon (1990), 49 Ohio St.3d 117, 118, 551 N.E.2d 183, 184. All litigants have a
legal right to have their proceedings correctly journalized. Id. at 119, 551 N.E.2d at 185.
Therefore, making an incorrect journal entry is a clear abuse of discretion by the trial
court. Id. at 120, 551. N.E.2d 15 185.
{¶10} If in fact the journal entry is correct and appellant did at some point enter a
plea of guilty that is not reflected by the transcript in the instant case, both of his
assignments of error are waived. A plea of guilty waives all appealable errors which
may have occurred at trial, unless such errors are shown to have precluded the
Fairfield County App. Case No. 11-CA-08 4
defendant from voluntarily entering into his or her plea pursuant to Crim. R. 11. State v.
Kelley (1991), 57 Ohio St.3d 127, 128, 556 N.E.2d 658. Therefore, it is imperative that
the judgment of conviction and sentence accurately reflect the manner of conviction in
this case.
{¶11} This cause is accordingly remanded to the Fairfield County Municipal
Court with instructions to issue a new judgment of conviction and sentence accurately
reflecting the manner of conviction.
By: Edwards, J.
Farmer, J. concurs
Hoffman, P.J. dissents without opinion
______________________________
______________________________
______________________________
JUDGES
JAE/r0729
[Cite as State v. Agosta, 2011-Ohio-5090.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
BRIAN P. AGOSTA :
:
Defendant-Appellant : CASE NO. 11-CA-08
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Municipal Court is reversed and remanded to the
Fairfield County Municipal Court for further proceedings. Costs assessed to appellee.
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JUDGES