State v. Mullett , 2013 Ohio 3041 ( 2013 )

[Cite as State v. Mullett, 2013-Ohio-3041.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 45
v. : T.C. NO. 12TRD2261
NEILL T. MULLETT : (Criminal appeal from
Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of July , 2013.
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GIL S. WEITHMAN, Atty. Reg. No. 0018377 and BREANNE N. PARCELS, Atty. Reg.
No. 0089370, Champaign Municipal Prosecutor, 205 S. Main Street, Urbana, Ohio 43078
Attorneys for Plaintiff-Appellee
HALLI BROWNFIELD WATSON, Atty. Reg. No. 0082466, The Greene Town Center, 50
Chestnut Street, Suite 230, Dayton, Ohio 45440
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Neill T. Mullett pled guilty in the Champaign County Municipal
Court to speeding (82/55). The court accepted his guilty plea, found that he had recklessly
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operated his vehicle, and imposed a $150 fine, a six-month driver’s license suspension, and
court costs. The court indicated that it would suspend three months of the driver’s license
suspension if Mullett wrote a five-page paper on speeding and fatalities. Upon the filing of
Mullett’s notice of appeal, the trial court stayed Mullett’s sentence.
{¶ 2} Mullett appeals from his conviction. He claims that the trial court erred in
requiring him to personally appear in court to address his traffic ticket, that R.C. 4510.15 is
unconstitutional, that the evidence did not support a finding of recklessness for purposes of
R.C. 4510.15, and that his plea was not made knowingly, intelligently, and voluntarily.
{¶ 3} As discussed below, Mullett has waived any challenge to his personal
appearance in the trial court by not raising that issue before the trial court. However,
Mullett’s plea was not given knowingly, intelligently, and voluntarily, because the record
does not reflect that the trial court complied with Traf.R. 8(D) before calling upon defendant
to plead. In light of that conclusion, we decline to address Mullett’s additional arguments.
The trial court’s judgment will be reversed, and the case will be remanded for further
proceedings.
I. Requirement that Defendant Personally Appear in Court
{¶ 4} Mullett’s first assignment of error states:
THE TRIAL COURT ERRED BY REQUIRING APPELLANT TO
PERSONALLY APPEAR BEFORE IT IN CONTRAVENTION OF R.C.
2935.26 AND TRAF. R. 13 RESULTING IN THE DEPRIVATION OF
APPELLANT’S RIGHT TO DISPOSE OF THIS TRAFFIC CITATION BY
PAYING AN ESTABLISHED FINE AND COSTS WITHOUT ANY
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APPEARANCE BEFORE THE TRIAL COURT AND IMPOSITION OF A
DRIVER’S LICENSE SUSPENSION.
{¶ 5} In his first assignment of error, Mullett claims that the trial court erred in
requiring to him to personally appear in court, rather than allowing him to pay his speeding
ticket through the violations bureau. Mullett relies on R.C. 2935.26, which addresses the
procedures for issuing a citation for an individual who committed a minor misdemeanor, and
Traf.R. 13.
{¶ 6} When Mullett appeared for his arraignment (as required by the ticket),
Mullett did not object to his personal appearance before the trial court and pled guilty.
Accordingly, Mullett waived any challenge to his personal appearance, and we decline to
address this issue in the first instance.
{¶ 7} Mullett’s first assignment of error is overruled.
II. Validity of Defendant’s Guilty Plea
{¶ 8} Mullett’s fourth assignment of error states:
THE TRIAL COURT ERRED BY ACCEPTING APPELLANT’S GUILTY
PLEA TO THE OFFENSE OF SPEEDING WITHOUT ENSURING THAT
APPELLANT UNDERSTOOD THE EFFECT OF HIS PLEA AND THE
MAXIMUM SENTENCE THAT MAY BE IMPOSED AGAINST HIM.
{¶ 9} Mullett’s fourth assignment of error argues that his guilty plea was not
entered knowingly, intelligently, and voluntarily.
{¶ 10} Mullett was charged with and found guilty of speeding, in violation of R.C.
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4511.21(D)(1). 1 Therefore, the proceedings were governed by the Ohio Traffic Rules.
Crim.R. 1(C); Traf.R. 1(A). A conviction for speeding in violation of R.C. 4511.21(D)(1)
is a minor misdemeanor, for which the only criminal penalty is a fine not exceeding $150.
R.C. 4511.21(P); R.C. 2929.28(A)(2)(v). Under Traf.R. 2(D), a “petty offense” is defined
as “an offense for which the penalty prescribed by law includes confinement for six months
or less”; speeding is a petty offense.
{¶ 11} Mullett entered a guilty plea during the course of his arraignment.
Arraignments for speeding violations are governed by Traf.R. 8, which provides, in part:
(B) Arraignment procedure
Arraignment shall be conducted in open court and shall consist of
reading the complaint to the defendant, or stating to him the substance of the
charge, and calling on him to plead thereto. The defendant shall be given a
copy of the complaint, or shall acknowledge receipt thereof, before being
called upon to plead and may in open court waive the reading of the
complaint.
***
(D) Explanation of rights
Before calling upon a defendant to plead at arraignment the judge
shall cause him to be informed and shall determine that defendant knows and
understands:
1
R.C. 4511.21(D)(1) provides: “No person shall operate a motor vehicle * * * upon a street or highway as follows: (1)
At a speed exceeding fifty-five miles per hour, except upon a freeway as provided in divisions (B)(13) and (14) of this section.”
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(1) That he has a right to counsel and the right to a reasonable
continuance in the proceedings to secure counsel, and, pursuant to Criminal
Rule 44, the right to have counsel assigned without cost to himself if he is
unable to employ counsel;
(2) That he has a right to bail as provided in Rule 4;
(3) That he need make no statement at any point in the proceeding;
but any statement may be used against him;
(4) That he has, where such right exists, a right to jury trial and that he
must, in petty offense cases, make a demand for a jury pursuant to Criminal
Rule 23;
(5) That if he is convicted a record of his conviction will be sent to the
Bureau of Motor Vehicles and become part of his driving record.
(E) Joint arraignment
If there are multiple defendants to be arraigned, the judge may advise,
or cause them to be advised, of their rights by general announcement.
{¶ 12} The trial court’s acceptance of Mullett’s guilty plea at his arraignment was
governed by Traf.R. 10(D), which provides:
In misdemeanor cases involving petty offenses, except those
processed in a traffic violations bureau, the court may refuse to accept a plea
of guilty or no contest and shall not accept such pleas without first informing
the defendant of the effect of the plea of guilty, no contest, and not guilty.
This information may be presented by general orientation or pronouncement.
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The counsel provisions of Criminal Rule 44(B), (C) and (D) apply to
this subdivision.
Traf.R. 10(B), which defines “the effect of guilty or no contest pleas,” provides that “[t]he
plea of guilty is a complete admission of the defendant’s guilt.” Traf.R. 10(B)(1).
{¶ 13} In State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635,
the Ohio Supreme Court clarified that in order to meet Traf.R. 10(D)’s requirement of
“informing the defendant of the effect of the plea,” the trial court need only inform the
defendant of the information contained in Traf.R. 10(B). Watkins, supra; see State v.
Darden, 2d Dist. Greene No. 2005 CA 109, 2006-Ohio-2908, ¶ 16. The Supreme Court
stated that “[a] judge’s duty to a defendant before accepting his guilty or no contest plea is
graduated according to the seriousness of the crime with which the defendant is charged.”
Watkins at ¶ 25. It held that, “in all cases, the judge must inform the defendant of the effect
of his plea.” Id. at ¶ 26. The Supreme Court observed that trial courts have additional
requirements under Crim.R. 11 for felony cases and misdemeanor cases involving serious
offenses. However, the Watkins court noted that there are no “constitutionally mandated
informational requirements for defendants charged with misdemeanors,” and thus “the
protections that the Criminal Rules provide to felony defendants should not be read into the
Ohio Traffic Rules, which deal only with misdemeanor offenses.” Id. at ¶ 28. The
Supreme Court held that “where a defendant charged with a petty misdemeanor traffic
offense pleads guilty or no contest, the trial court complies with Traf.R. 10(D) by informing
the defendant of the information contained in Traf.R. 10(B).”2 Id.
2
We are conscious that these cases could be interpreted to mean that a
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{¶ 14} When a guilty plea is accepted under Traf.R. 10, the trial court must proceed
with sentencing under Crim.R. 32. Crim.R. 32(A) requires the trial court to “address the
defendant personally and ask if he or she wishes to make a statement in his or her own
behalf or present any information in mitigation of punishment.” Crim.R. 32(A)(1).
{¶ 15} The transcript of Mullett’s arraignment reflects that Mullett first reviewed a
video statement by the trial judge that explained Mullett’s “rights.” The State attached to its
reply brief a copy of what it claims is the arraignment video, but neither the video nor a
transcription of the video is part of the record on appeal. Accordingly, the record does not
reflect whether the video recording fully informed Mullett of his rights, as required by
Traf.R. 8(D), or of the effect of the plea of guilty, no contest, and not guilty.
{¶ 16} At the beginning of Mullett’s arraignment before the trial judge, the trial
court informed Mullett that he had been charged with speeding (82/55 mph), a minor
misdemeanor. The court asked Mullett if he understood the charge and “his rights.”
Mullett responded affirmatively. Mullett then asked the court about the citing officer’s
absence from the courtroom. The trial court responded, “[D]idn’t I explain on that video
trial court is not required to ensure that a defendant facing a petty misdemeanor
offense enters his or her guilty or no contest plea knowingly, intelligently, and
voluntarily. In addition, there is no apparent requirement that such a defendant
be informed of the potential penalties that he or she faces. See State v.
Klingsbergs, 9th Dist. Wayne No. 10 CA 44, 2011-Ohio-6509, ¶ 9 (“We
acknowledge that it is troubling that, when faced with entering pleas to first
degree misdemeanors [that are petty offenses], the trial court’s obligation is
limited to merely informing the defendant of the effect of the plea.”). However,
the Ohio Supreme Court has spoken on this issue and held that, with petty
misdemeanor offenses, the court must simply notify the defendant the effect of
his plea, as defined in Traf.R. 10(B) and Crim.R. 11(B). Watkins at ¶ 28; State
v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 25; see also
Klingsbergs at ¶ 9; Parma v. Benedict, 8th Dist. Cuyahoga No. 98947,
2013-Ohio-1990.
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that this is for the purpose of addressing bond and addressing an attorney and addressing
what plea you wish to answer?” The court asked Mullett if he needed to view the video
again; Mullett stated that he did not.
{¶ 17} The arraignment then proceeded as follows:
THE COURT: Okay. Do you understand the charge that you’re charged with?
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you understand your rights?
THE DEFENDANT: Yes, ma’am.
THE COURT: Are you prepared to enter a plea at this time?
THE DEFENDANT: Yes.
THE COURT: What plea would you like to enter?
THE DEFENDANT: Guilty.
THE COURT: Do you understand that a guilty plea is an admission of your
guilt?
THE DEFENDANT: Yes.
THE COURT: Do you understand that the maximum penalty could be up to a
$150 fine, and costs if found to reckless at that speed – it probably will be –
up to a one year license suspension.
THE DEFENDANT: Yes.
THE COURT: Do you understand by entering a guilty plea you’re giving up
your right to an attorney?
THE DEFENDANT: Yes.
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THE COURT: Do you understand you’re giving up your right to a trial?
THE DEFENDANT: Yes.
THE COURT: You’re giving up your right to remain silent?
THE DEFENDANT: Yes.
THE COURT: You’re giving up your right to make the State prove you guilty
beyond a reasonable doubt?
THE DEFENDANT: Yes.
THE COURT: You’re giving up your right to face people that accuse you of
the offense and cross-examine them?
THE DEFENDANT: Yes.
THE COURT: And you’re giving up your right to compel witnesses[’]
attendance and have them testify on your behalf?
THE DEFENDANT: Yes.
THE COURT: Are you making this plea knowingly, voluntarily and
intelligently?
THE DEFENDANT: I think so.
THE COURT: Have any threats or promises been made to get you to enter
into this plea?
THE DEFENDANT: No.
THE COURT: All right. And statement?
CLERK LAFRAY: Your Honor, if it pleases the Court, on November 11th at
2:42 hours in the afternoon, Deputy Vernon was on patrol traveling
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northbound in the 4,000 block of U.S. 68. He observed a vehicle traveling
southbound in the wrong lane of travel that appeared to be traveling faster
than the posted speed limit of 55 miles per hour.
Unit activated his radar and clocked the vehicle at 82 miles per hour.
Unit Initiated traffic stop of the vehicle. The driver Neill T. Mullet [sic].
When the driver was asked if he was aware of his speed, he stated yes, he had
been attempting to pass another vehicle.
There was proof of insurance shown on the day of the stop. It was
two lanes, dry, cloudy visibility, no adverse weather, heavy traffic in a rural
area. Has one prior speed May of 2001.
THE COURT: Okay. I would find that you’re guilty. I would also find that
given it’s two lanes, you’re in the wrong lane, there is traffic and it’s in a
rural area, I’m going to find that it’s reckless.
The trial court provided Mullett an opportunity to speak before the court imposed sentence,
but Mullett declined.
{¶ 18} The transcript indicates that, after Mullett expressed that he “would like to enter”
a guilty plea, the trial court engaged in a colloquy about the rights that Mullett was waiving by
entering his guilty plea. The trial court expressly asked Mullett if he understood that a plea of
guilty is a complete admission of guilt, and Mullett answered affirmatively. In addition, the trial
court informed Mullett of the possible penalties he faced – including the driver’s license
suspension – and Mullett expressed that he understood. Commendably, the trial court’s colloquy
went beyond what was necessary under Traf.R. 10(D) for accepting Mullett’s guilty plea.
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{¶ 19} Nevertheless, the record does not demonstrate that the trial court caused Mullett
to be informed of his rights under Traf.R. 8(D) and determined that Mullet knew and understood
those rights before calling on him to plead at his arraignment. The trial court was permitted to
inform Mullett of those rights by general announcement, including by means of a video
recording, but a copy of that video recording was not properly made part of the record. Mullett’s
acknowledgment that he saw the video and his statement that he did not need to see it again do
not establish that the trial court’s video complied with Traf.R. 8(D). And, even assuming, for
sake of argument, that the trial court’s plea colloquy could cure this defect, the court’s
questioning of Mullett before accepting his plea did not address all of the “rights” stated in
Traf.R. 8(D), including that a record of the conviction would be sent to the BMV and become
part of his driving record.
{¶ 20} Given the record before us, we cannot conclude that Mullett was fully informed
of his rights, as required by Traf.R. 8(D), before entering his guilty plea. Mullett’s fourth
assignment of error is sustained.
III. Constitutionality of R.C. 4511.10 and Finding of Recklessness
{¶ 21} Mullett’s second and third assignments of error read:
THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL
RIGHTS BY INVOKING R.C. 4510.15, WITHOUT NOTICE OR AN
OPPORTUNITY TO BE HEARD, TO FIND APPELLANT RECKLESS AND
IMPOSE A SIX-MONTH DRIVER’S LICENSE SUSPENSION AFTER
APPELLANT ENTERED A GUILTY PLEA TO THE CHARGED OFFENSE OF
SPEEDING, WHICH DOES NOT ENCOMPASS A FINDING OF
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RECKLESSNESS.
ASSUMING ARGUENDO THAT R.C. 4510.15 WAS
CONSTITUTIONALLY APPLIED AND THAT APPELLANT WAS
PROPERLY BEFORE THE TRIAL COURT, THE TRIAL COURT ABUSED
ITS DISCRETION IN FINDING APPELLANT’S CONDUCT RECKLESS AND
SUSPENDING HIS DRIVER’S LICENSE IN THE ABSENCE OF ANY
EVIDENCE THAT APPELLANT POSED A THREAT TO OTHERS
{¶ 22} In his second assignment of error, Mullett claims that the trial court’s use of
R.C. 4510.15 to impose a driver’s license suspension was unconstitutional, because he had no
prior notice that his conduct would be deemed reckless and the trial court had no authority to
make an additional finding not implicated by the charged offense. Mullett argues that the court
found “recklessness” as a sentencing factor, in violation of his rights under the Fifth and Sixth
Amendments to the United States Constitution. Mullett’s third assignment of error asserts that,
even if R.C. 4510.15 were constitutional, the trial court abused its discretion when it found that
he had driven recklessly.
{¶ 23} In light of our disposition of Mullett’s fourth assignment of error, his second and
third assignments of error are overruled as moot.
V. Conclusion
{¶ 24} The trial court’s judgment will be reversed, and the matter will be remanded for
further proceedings..
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FAIN, P.J. and HALL, J., concur.
[Cite as State v. Mullett, 2013-Ohio-3041.]
Copies mailed to:
Gil S. Weithman
Breanne N. Parcels
Halli Brownfield Watson
Hon. Susan J. Fornof-Lippencott