State v. Rice , 2021 Ohio 988 ( 2021 )

[Cite as State v. Rice, 2021-Ohio-988.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
: Case No. 20CAA010002
:
JOSEPH RICE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Case No.
19CRI020105
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 23, 2021
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MELISSA A. SCHIFFEL DARREN L. MEADE
DELAWARE CO. PROSECUTOR 2602 Oakstone Drive
PAYTON ELIZABETH THOMPSON Columbus, OH 43231
145 N. Union St., 3rd Floor
Delaware, OH 43015
[Cite as State v. Rice, 2021-Ohio-988.]
Delaney, P.J.
{¶1} Appellant Joseph Rice appeals from the December 12, 2019 Judgment
Entry of Sentence of Community Control of the Delaware County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The facts underlying the instant appeal are not in dispute. The following
statement of fact is taken from the “Agreed Stipulation of Parties Governing Trial” filed
October 15, 2019.
The instant case: the parties jointly stipulate to facts
{¶3} Appellant was indicted on February 15, 2019 for the offense of Public
Indecency, pursuant to R.C. 2907.09(A)(3), a fifth-degree felony.
{¶4} On or about the 4th day of December, 2017 and in Delaware County, Ohio,
[appellant], under circumstances in which his conduct was likely to be viewed and affront
others who are in his physical proximity and who are not members of his household, one
of whom is a minor, recklessly engaged in conduct that to an ordinary observer would
appear to be sexual conduct or masturbation.
{¶5} Specifically, the parties stipulate:
On December 4, 2017, [appellant] was parked on the side of
Sierra Drive in Westerville, Delaware County, Ohio at approximately
1:50 p.m. in his work-issued mail truck, with the driver’s side door
open. The neighborhood containing Sierra Drive is highly populated
with approximately 35 houses on that Sierra Drive alone.
[Cite as State v. Rice, 2021-Ohio-988.]
At the same time, [Mother Doe] and [Child Doe, age 3] were
on a walk on a wooded trail next to the area where [appellant] was
parked. [Mother and Child Doe] did not know [appellant] prior to this
day and had previously had no interaction with him. [Mother and
Child Doe] are not household members of [appellant].
As [Mother and Child Doe] approached the parked vehicle,
[Child Doe] stated “Mail truck!” to [Mother Doe].
As [Mother and Child Doe] walked past [appellant], he was
approximately 3-5 feet away from [Mother and Child Doe], seated in
his vehicle with his pants around his ankles. He had his cell phone
in his left hand and his penis in his right hand.
[Mother Doe], an ordinary observer, immediately believed that
[appellant] was masturbating and called her husband, [John Doe], to
alert him. She was very upset and frantic during the phone call
placed to [John Doe] and was concerned about getting her daughter
home as quickly as possible. His conduct was in fact viewed by and
affronted [Mother and Child Doe].
[John Doe] exited his house and waited approximately 10-15
seconds until he observed [appellant] in his mail truck turn right from
Sierra Drive onto Shiloh Spring Drive. As [appellant] approached
[John Doe], [John Doe] began filming his interaction with [appellant],
who confirmed that [Mother and Child Doe] had seen him in his work
[Cite as State v. Rice, 2021-Ohio-988.]
truck in a compromising position on Sierra Drive and apologized for
the encounter.
* * * *.
{¶6} Appellant was charged by indictment with one count of public indecency
pursuant to R.C. 2907.09(A)(3), a felony of the fifth degree. The indictment noted
appellant was previously convicted of or pleaded guilty to two or more violations of this
section.
{¶7} Appellant entered a plea of not guilty and filed, e.g., a motion to exclude
evidence of uncounseled prior convictions. The indictment referenced two prior
convictions: 1) Delaware County Municipal Court case number 2002 CRB 1683 and 2)
Delaware County Municipal Court case number 2006 CRB 1009 (referred to henceforth
as the “2002” and “2006” convictions). Appellant attached dockets from each case
indicating he entered pleas of no contest at arraignment in both cases.
{¶8} Appellant also filed a “Motion in Limine to Exclude Evidence of Facts
Surrounding Prior Convictions Under Evid.R. 404(B) and 403(A).” The trial court granted
the motion in limine, ruling the facts surrounding appellant’s prior convictions are
inadmissible at trial unless appellant opens the door to admission of those facts.
{¶9} On October 10, 2019, an evidentiary hearing was held on appellant’s motion
to exclude evidence of the prior convictions. The trial court opined at the beginning of the
hearing that it was appellant’s burden to make a prima-facie showing that his prior
convictions were uncounseled, which appellee could then rebut. Appellant argued an
affidavit attached to his motion created a prima-facie case of uncounseled prior
convictions. We note this affidavit is not in the record before us. At the hearing appellee
[Cite as State v. Rice, 2021-Ohio-988.]
stated the prosecutor’s office was served with the affidavit, and the affidavit was
apparently presented to the trial court. The trial court read the pertinent portion of the
affidavit as follows:
* * * *.
I do not recall what, if any, forms or other acknowledgments
of my legal rights, including my right to have an attorney, I may have
reviewed and signed in either case. I do not recall whether the Court
in either case informed me of my right to be represented by counsel.
I cannot state that I knowingly, intelligently, and voluntarily waived
my rights to have legal counsel represent me in either of the
aforementioned municipal court cases.
* * * *.
T. 10/10/19, 15.
{¶10} Appellee thereupon offered State’s Exhibit 1, a DVD containing audio
and/or video of both no-contest pleas.
The 2002 conviction
{¶11} The 2002 no-contest plea was played and transcribed into the record. In
the recording, a trial court explained the purpose of traffic and misdemeanor
arraignments, that anything the defendant said could be held against them; the right to
see the charging document and to have the charge read and explained to them; the right
to a jury trial; and the function and purpose of a recognizance bond. The trial court
explained the defendants have a right to an attorney of their choice and that an attorney
would be appointed to represent them if they could not afford to hire an attorney. T.
[Cite as State v. Rice, 2021-Ohio-988.]
10/10/19, 21. The trial court explained the options of entering pleas before the court that
day, including that defendants could speak to an attorney prior to entering any plea and
the arraignment would be rescheduled.
{¶12} The trial court then explained the meaning of “not guilty” and “no contest”
pleas. T. 10/10/19, 25. The trial court explained the pleas of “guilty” and “not guilty by
reason of insanity.” The trial court explained that if the defendant chose to enter a plea
of “no contest” or “guilty,” he or she would be given a Waiver of Rights with Plea form.
The trial court explained that either of those pleas at arraignment would effectively give
up the defendant’s right to a lawyer because the case would be completed. Therefore,
the court advised, if the defendant wanted an opportunity to speak with a lawyer, he or
she should enter a plea of “not guilty” or tell the court that the defendant wants to continue
the arraignment for a week to consult an attorney.
{¶13} Finally, the trial court explained the additional consequences of pleas for
individuals who are not citizens of the United States; who plead guilty or no contest to a
moving violation requiring points to be assessed against their driver’s license; and who
plead guilty to an enhanceable offense, meaning that a future offense would be of a higher
degree of penalty based upon the plea.
{¶14} The recording was then forwarded to appellant’s arraignment. The charge
of public indecency was read to him and he was advised the offense is a fourth-degree
misdemeanor. Appellant stated he understood the charge and had received a copy of
the ticket. The following conversation took place:
* * * *.
[Cite as State v. Rice, 2021-Ohio-988.]
JUDGE SUNDERMAN: Now, do you have a lawyer or do you
plan on hiring a lawyer to represent you in this case?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: You don’t want me to represent a
lawyer to represent you?
[APPELLANT]: No, sir.
JUDGE SUNDERMAN: All right. Are you prepared to enter
a plea then?
[APPELLANT]: No contest.
JUDGE SUNDERMAN: All right. Fill out the form we got
there. Circle no contest, indicate that you’re entering that plea, and
then sign that form and date it.
Were you in court this morning when I went over everyone’s
rights?
[APPELLANT]: Yes, sir, I was.
JUDGE SUNDERMAN: And did you read and review this
document, this Waiver of Rights with Plea form?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: You understand all the rights that are
in that document?
[APPELLANT]: Yes, sir.
[Cite as State v. Rice, 2021-Ohio-988.]
JUDGE SUNDERMAN: And you understand what you’re
charged with, the maximum possible penalties that we just
discussed?
[APPELLANT]: Yes, I do.
JUDGE SUNDERMAN: And you understand what the effect
of a no contest plea is, which we talked about earlier?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: You understand that by entering that
no contest plea at this point, you’re giving up your right to be
represented by a lawyer, either one that you could hire or one that
we would appoint for you; and you’re giving up your right to a trial?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: Which includes giving up your right
to cross-examine opposing witnesses, call your own witnesses, take
the stand in your own defense, and requiring the prosecution to prove
you guilty beyond a reasonable doubt at trial where you can’t be
forced to take the witness stand and testify against yourself.
Do you understand those matters?
[APPELLANT]: Yes, I do.
JUDGE SUNDERMAN: Are you under the influence of any
medications or substance this morning?
[APPELLANT]: No, sir.
[Cite as State v. Rice, 2021-Ohio-988.]
JUDGE SUNDERMAN: All right. The Court will then accept
your plea as being knowingly, intelligently, and voluntarily made.
[Prosecutor], do you have a statement of facts here?
[PROSECUTOR]: Your Honor, this occurred on Saturday,
August 5 at approximately 3:17 p.m. Officer Yates {phonetic} was
on a foot patrol in a wooded area near the swim cove of Lewis
Center, Delaware County when he observed two male subjects
laying on the ground. [Appellant] was lying on the ground, had only
a shirt on. Mr. Robert Boyak {phonetic} was fully clothed. Mr. Boyak
was laying with his face in the lap of [appellant], performing oral sex
on him.
Officer Yates was in full uniform and didn’t try to hide or
conceal himself as he walked down the path, and there were other
park visitors in the general area where this occurred.
We would request, by way of sentence, Your Honor, probably
30 days all suspended on certain conditions. Mainly those would be
payment of fines and costs, no same or similar or serious criminal or
traffic. But the main condition of probation we would ask for is a
three-year stay-away order from parks at least in Delaware County.
JUDGE SUNDERMAN: All right. [Appellant], is there
anything you want to say to me?
[APPELLANT]: No, nothing to add.
[Cite as State v. Rice, 2021-Ohio-988.]
JUDGE SUNDERMAN: All right. Well, you understand that
this is a public place. I’m probably not telling you anything you
haven’t already thought about or you don’t already know. It’s a public
place. What people do in private is a whole other matter. What they
do in public is different. There are all kinds of people that visit that
park, as you well know, young, old, and every age in between; and,
obviously, this is conduct that can’t be tolerated.
I agree with the prosecutor’s recommendation in this
particular case. You’ve not—From what I hear, you’ve never been
in trouble before?
[APPELLANT]: No, sir.
JUDGE SUNDERMAN: You know, this is the kind of offense
where, as I said, whatever you do in the privacy of your home or
wherever is a different matter.
I’m going to sentence you to 30 days in jail. I will suspend all
30 of those days. I’m going to place you on probation for a period of
one year.
You’re to comply with all reasonable terms that the probation
department deems appropriate. I am going to impose a three-year
stay-away order from any of the public parks in Delaware County. I
am going to fine you $150 in court costs, basically, for the deterrence
of this offense and the correction of you.
Can that be paid today, or do you need time?
[Cite as State v. Rice, 2021-Ohio-988.]
[APPELLANT]: Depending on the form of payment accepted,
yes.
JUDGE SUNDERMAN: They will take a credit card. Is that
what you’re thinking?
[APPELLANT]: Yes.
* * * *.
JUDGE SUNDERMAN: All right. And you understand what
I’m saying when it’s a three-year stay-away order from all public
parks in Delaware County. That would not just include Alum Creek,
but any of the other public parks, whether they’re State or City or
County. Do you understand that?
[APPELLANT]: Yes.
JUDGE SUNDERMAN: All right. When you leave here this
morning, then, you’ll meet with the probation department; and they’ll
explain to you further any of the—any of the specific details of the
terms of your probation.
Any other questions?
[APPELLANT]: No, sir.
JUDGE SUNDERMAN: All right, thank you.
And thereupon the audio/visual file was stopped.
* * * *.
T. 10/10/19, 31-36.
[Cite as State v. Rice, 2021-Ohio-988.]
{¶15} Appellee submitted a certified copy of a “Waiver of Rights with Plea” form,
signed by appellant, stating in pertinent part:
I have been charged with an offense in the Delaware
Municipal Court.
I understand my rights as follows:
I have the right to obtain an attorney even if I intend to plead
guilty, and I have a right to a reasonable continuance (delay) in the
proceedings to secure an attorney.
If I am unable to afford an attorney, and my offense may
subject me to a jail penalty the Court will appoint an attorney to
represent me without cost to myself.
I understand that I am charged with an offense for which if I
plead guilty or no contest, I may be sentenced to jail as well as
payment of a fine. * * * *.
* * * *.
I understand that I may plead NOT GUILTY, GUILTY, or NO
CONTEST, and that the effect of such a plea is as follows:
* * * *.
The plea of NO CONTEST is not an admission of guilt, but is
an admission of the truth of the facts alleged in the complaint. Such
plea of admission, however, shall not be used against me in any
subsequent civil or criminal proceedings. My case would be heard
today.
[Cite as State v. Rice, 2021-Ohio-988.]
* * * *.
I HAVE READ THIS STATEMENT OF RIGHTS AND I
UNDERSTAND WHAT THEY ARE. I KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY GIVE UP MY RIGHTS TO
EMPLOY AN ATTORNEY, OR TO HAVE ONE APPOINTED FOR
ME. I ALSO GIVE UP MY OTHER RIGHTS SET FORTH ABOVE,
INCLUDING MY RIGHT TO HAVE MY RIGHTS EXPLAINED TO ME
IN OPEN COURT AND TO HAVE THE EXPLANATION
RECORDED.
PLEA
I understand the charge(s) against me and the possible
maximum penalties. Having knowingly, intelligently, and voluntarily
waived my rights, I plead NO CONTEST to the charge(s) against me.
I do understand that I will be sentenced immediately.
/s/ Joseph E. Rice
(Emphasis in original).
{¶16} Appellee entered a certified copy of the Judgment Entry and/or Report and
Sentencing Recommendation of the Delaware Municipal Court dated August 2, 2002.
The entry states in pertinent part: “Defendant was advised of charge(s) against him and
possible maximum penalty. Defendant was addressed personally and the Court
determined that a waiver of all rights was made knowingly, intelligently, and voluntarily.
Plea accepted. Finding of Guilty, opportunity to speak was given before sentence.
Defendant waived counsel.”
[Cite as State v. Rice, 2021-Ohio-988.]
The 2006 conviction
{¶17} Appellee next played a recording of appellant’s 2006 no-contest plea and
conviction, which was transcribed into the record of the instant case.
{¶18} Judge Sunderman again explained the statutory and constitutional rights
afforded to the individuals before him for misdemeanor and traffic arraignments. T.
10/10/19, 39. In the recording, a trial court explained the purpose of traffic and
misdemeanor arraignments, that anything the defendant said could be held against them;
the right to see the charging document and to have the charge read and explained to
them; the right to a jury trial; and the function and purpose of a recognizance bond. The
trial court explained the defendants have a right to an attorney of their choice and that an
attorney would be appointed to represent them if they could not afford to hire an attorney.
T. 10/10/19, 40. The trial court explained the options of entering pleas before the court
that day, including that defendants could speak to an attorney prior to entering any plea
and the arraignment would be rescheduled.
{¶19} The trial court then explained the meaning of “not guilty” and “no contest”
pleas. T. 10/10/19, 42. The trial court explained the pleas of “guilty” and “not guilty by
reason of insanity.” T. 10/10/19, 44. The trial court explained that if the defendant chose
to enter a plea of “no contest” or “guilty,” he or she would be given a Waiver of Rights with
Plea form. The trial court explained that either of those pleas at arraignment would
effectively give up the defendant’s right to a lawyer because the case would be completed.
Therefore, the court advised, if the defendant wanted an opportunity to speak with a
lawyer, he or she should enter a plea of “not guilty” or tell the court that the defendant
wants to continue the arraignment for a week to consult an attorney.
[Cite as State v. Rice, 2021-Ohio-988.]
{¶20} Finally, the trial court explained the additional consequences of pleas for
individuals who are not citizens of the United States; who plead guilty or no contest to a
moving violation requiring points to be assessed against their driver’s license. T.
10/10/19, 47-49.
{¶21} The following conversation took place between the (misdemeanor) trial
court and appellant:
JUDGE SUNDERMAN: Is Mr. Rice here?
Good morning, Mr. Rice.
Mr. Rice, I have before me a charge of—let me check
something—a charge of public indecency.
That’s what I wanted to check. There’s a charge of public
indecency here. It alleges that on or about May the 11th, 2006, at
about 4:08 p.m., and it says that this happened somewhere in the
Alum Creek State Park area, that you recklessly or under
circumstances in which your conduct was likely to be viewed by and
affront others, not the members of your household, exposed your
private parts or engaged in masturbation while in the Lewis Center
picnic area at Alum Creek State Park. It also alleges that there was
a prior conviction for the same offense on August 12th of 2002 here
in Delaware Municipal Court.
Because of the prior conviction, it elevates one degree to a
misdemeanor of the third degree. It carries up to 60 days in jail, up
to a $500 fine or both.
[Cite as State v. Rice, 2021-Ohio-988.]
So do you understand the charge and the full range of
possible penalties?
[APPELLANT]: Yes, sir, I do.
JUDGE SUNDERMAN: Do you have a lawyer, or are you
planning on hiring a lawyer to represent you in this case?
[APPELLANT]: No, sir.
JUDGE SUNDERMAN: Do you want me to appoint a lawyer
to represent you?
[APPELLANT]: No, sir.
JUDGE SUNDERMAN: And are you prepared to enter a plea
here this morning?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: What plea do you wish to enter?
[APPELLANT]: No contest.
JUDGE SUNDERMAN: All right. If you’ll take the form that
you have circled no contest, sign it, date it.
[APPELLANT]: Do I need to complete the top of that, as well?
JUDGE SUNDERMAN: Write in your name you mean and--
[APPELLANT]: Yes.
JUDGE SUNDERMAN: Yes. Write your name on the—
Now Mr. Rice, were you in court when I went through all these rights
with everybody this morning?
[APPELLANT]: Yes, sir, I was.
[Cite as State v. Rice, 2021-Ohio-988.]
JUDGE SUNDERMAN: Did you understand all that?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: And did you read and understand this
Waiver of Rights with Plea form that you signed here this morning?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: And do you understand the charge,
the full range of possible penalties as I just went through those?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: You understand the effect of a no
contest plea as I explained that earlier?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: Are you under the influence of any
drug, alcohol, medication here this morning?
[APPELLANT]: No, sir.
JUDGE SUNDERMAN: You’re a U.S. citizen?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: You understand that by entering this
plea this morning, you’re giving up your right to be represented by a
lawyer, whether it would be to a judge—or a lawyer, whether one you
would hire or one that I would appoint for you? Do you understand
that?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: [Inaudible] your own free will?
[Cite as State v. Rice, 2021-Ohio-988.]
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: All right. I will accept your plea.
Officer, do you have a report on this case?
[UNIDENTIFIED SPEAKER]: Judge, yes. May 11th, 4 p.m.,
the ODNR was conducting a plainclothes detail surveillance at the
park. This is Alum Creek State Park. This is the latrine in area
number two. They had observed this gentleman get out of his car
and run into the restroom. As a marked patrol car went by, he
indicated—this gentleman indicated he did not want the officer to be
suspicious in the patrol car.
The undercover officer walked into the woods with [appellant].
[Appellant] stated, “Let’s walk a little further so that we can view the
parking lot, and no one will sneak up on us.”
[Appellant] then says—pulled his shorts down around his
knees, exposed his private parts, and touched them.
The officer then identified himself and arrested him for public
indecency.
[Appellant] advised that he had been arrested a few years
earlier for the same thing. He indicated [appellant] was cooperative
and courteous throughout this entire incident.
It does show a conviction, Judge, August 12th, ’02, 30 days
suspended, a fine of $150, one year probation. He was required to
stay away from the parks for three years, which ended in ’05.
[Cite as State v. Rice, 2021-Ohio-988.]
He was released after a successful probation of one year in
April of 2003.
JUDGE SUNDERMAN: All right. Based on the statement of
facts, then, I’ll enter a finding of guilty.
[Appellant], you were here, what, three—I guess three and a
half years ago, almost four years ago?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: And so you know what you’re dealing
with here. Is there anything you want to tell me?
And this is a public park. I’m stating the obvious here, and
there’s obvious reasons why this law exists particularly as it applies
to public parks and public places.
[APPELLANT]: I guess the only thing I have to say at this
point is I initially did just go to use the restroom and then apparently
got stupid after that. I would ask the Court, in judgment, that I do
have a family to support, and my job doesn’t allow for leave time for
loss of work at this point. That’s all.
JUDGE SUNDERMAN: You basically work Monday through
Friday?
[APPELLANT]: I actually work six days, Monday through
Saturday.
JUDGE SUNDERMAN: All right. And I assume you have
some holidays, right, or vacation time?
[Cite as State v. Rice, 2021-Ohio-988.]
[APPELLANT]: I guess some holidays, but I don’t accrue
vacation at this time because I’m not at the level to accrue vacation.
JUDGE SUNDERMAN: All right. Well, you’re going to have
to figure this out, because, you know, you got convicted once. You
didn’t get placed in jail. You got placed on probation. And here you
are back again for the same thing.
Number one, I’m going to fine you $500 plus court costs. I’m
going to ask you can you pay that today or do you need time?
[APPELLANT]: I can pay that today.
JUDGE SUNDERMAN: All right. I’m going to impose six days
in jail. Those could be served on two consecutive weekends. You’re
going to have to figure out with your job how you’re going to do that.
I really don’t even have to take that into account, but I will. I’m not
interested.
You’re married?
[APPELLANT]: Yes, sir.
JUDGE SUNDERMAN: How many children?
[APPELLANT]: One.
* * * *.
JUDGE SUNDERMAN: Did you complete any counseling
through what’s called the STOP program the first time that this
occurred?
[APPELLANT]: No, sir.
[Cite as State v. Rice, 2021-Ohio-988.]
JUDGE SUNDERMAN: All right. Probation will tell you in
more detail what that’s all about, but it’s a program that’s geared
specifically for these instances.
I’m going to place you on community control for two years
under the condition that you pay your fines and costs, you conduct
yourself in a law abiding manner, you complete the STOP program,
that you not enter onto any public park property for a period of two
years.
If you violate any of these terms or conditions, several things
can happen. I can lengthen your community control to five years, I
can impose additional restrictions, or I can impose jail up to 60 days
with a credit now of 54 days in addition to what you’re serving now.
* * * *.
T. 10/10/19, 47-58.
{¶22} Appellee entered a certified copy of the complaint in the 2006 case, which
notes, e.g., appellant was previously convicted of public indecency in 2002. Appellant
also entered a certified copy of the “Judgment Entry/Magistrate’s Decision” dated May
22, 2006, stating appellant was advised of the charge and the effect of pleas pursuant to
Crim.R. 11 and the right to counsel pursuant to Crim.R. 44. Appellant entered a plea of
no contest and was found guilty as charged.
Bench trial in the instant case
{¶23} Appellant waived his right to trial by jury and the matter proceeded to bench
trial. The parties stipulated to the facts of the instant case as noted supra. Appellee again
[Cite as State v. Rice, 2021-Ohio-988.]
presented the evidence of the videotape of appellant’s 2002 and 2006 pleas and
convictions for public indecency.
{¶24} At the conclusion of appellee’s evidence, appellant moved for a judgment
of acquittal pursuant to Crim.R. 29(A). Appellant argued the 2002 and 2006 convictions
could not be used to elevate the degree of the instant offense because there was no
written waiver of the right to counsel and appellant was not told a conviction could
enhance the degree of a subsequent offense. Appellant further argued the 2002
conviction was invalid altogether because he was not found guilty upon the record.
Finally, appellant argued appellee failed to present evidence that appellant was the
“Joseph Rice” convicted in the 2002 and 2006 cases. The trial court overruled the motion.
{¶25} The trial court then noted as the finder of fact that the “Joseph Rice” on the
plea videos from 2002 and 2006 was the same defendant before him in the courtroom.
The trial court found appellant guilty as charged upon one count of public indecency as a
felony of the fifth degree. Sentencing was deferred pending preparation of a P.S.I.
{¶26} Appellant appeared for sentencing on November 27, 2019. The trial court
imposed a 5-year term of community control which includes, e.g., a 30-day jail term.
{¶27} Appellant now appeals from the trial court’s judgment entry of conviction
and sentence.
{¶28} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶29} “I. EVIDENCE OF APPELLANT’S PRIOR 2002 CONVICTION WAS
IMPROPERLY ADMITTED AS EVIDENCE AGAINST HIM WHEN THE TRIAL COURT
IN SAID 2002 CASE FAILED TO FIND APPELLANT GUILTY ON THE RECORD AFTER
[Cite as State v. Rice, 2021-Ohio-988.]
APPELLANT ENTERED A PLEA OF NO CONTEST, THUS RENDERING THE PRIOR
CONVICTION VOID FOR PURPOSES OF ENHANCING THE CHARGE IN THE
PRESENT CASE TO A FIFTH-DEGREE FELONY.”
{¶30} “II. THE TRIAL COURT ERRED TO APPELLANT’S PREJUDICE WHEN
IT IMPROPERLY FAILED TO EXCLUDE EVIDENCE OF APPELLANT’S PRIOR
UNCOUNSELED MISDEMEANOR CONVICTIONS IN ORDER TO ENHANCE THE
CHARGE IN THE PRESENT CASE TO A FIFTH-DEGREE FELONY.”
{¶31} “III. THE TRIAL COURT’S DETERMINATION FINDING NO
REASONABLE DOUBT IN IDENTIFYING APPELLANT AS THE SAME “JOSEPH RICE”
WHO ENTERED A PLEA IN THE PRIOR 2002 AND 2006 MUNICIPAL COURT CASES
WAS BOTH CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE, WHEN
THE EVIDENCE OF SUCH IDENTIFICATION WAS SOLELY BASED UPON
REVIEWING VIDEOS OF MUNICIPAL COURT PLEA HEARINGS RECORDED
SEVENTEEN (17) AND THIRTEEN (13) YEARS EARLIER RESPECTIVELY, AND
COMPARING SUCH DATED MATERIALS TO APPELLANT’S APPEARANCE IN THE
COURTROOM MANY YEARS LATER.”
{¶32} “IV. APPELLANT’S CONVICTION WAS UNSUPPORTED BY
SUFFICIENT EVIDENCE AS A MATTER OF LAW FOR THE REASONS STATED IN
THE FIRST THROUGH THIRD ASSIGNMENTS OF ERROR, AND THE TRIAL COURT
ACCORDINGLY ERRED IN DENYING APPELLANT’S RULE 29 MOTION.”
[Cite as State v. Rice, 2021-Ohio-988.]
ANALYSIS
I., II., III., IV.
{¶33} Appellant’s four assignments of error are related and will be addressed
together. Appellant argues the 2002 and 2006 convictions are insufficient to elevate the
offense in the instant case to a felony of the fifth degree. We disagree.
{¶34} Appellant was found guilty upon one count of public indecency pursuant to
R.C. 2907.09(A)(3), which states: no person shall recklessly * * * under circumstances in
which the person's conduct is likely to be viewed by and affront others who are in the
person's physical proximity and who are not members of the person's household, engage
in conduct that to an ordinary observer would appear to be sexual conduct or
masturbation. Further, pursuant to R.C. 2907.09(C)(3), “* * * [i]If the offender previously
has been convicted of or pleaded guilty to two or more violations of this section, a violation
of division (A)(2) or (3) of this section is a misdemeanor of the first degree or, if any person
who was likely to view and be affronted by the offender's conduct was a minor, a felony
of the fifth degree.”
{¶35} Appellant does not argue he was improperly convicted of public indecency;
instead, he argues the 2002 and 2006 convictions could not be used to elevate the instant
offense to a felony of the fifth degree.
The 2002 conviction is not void for enhancement purposes
{¶36} First, appellant argues the 2002 conviction is void for enhancement
purposes because the trial court failed to find appellant guilty on the record following his
plea of no contest. “A trial court's obligations in accepting a plea depend upon the level
of offense to which the defendant is pleading.” State v. Smith, 9th Dist. Medina No.
[Cite as State v. Rice, 2021-Ohio-988.]
14CA0122–M, 2016-Ohio-3496, 2016 WL 3403006, ¶ 6. If a misdemeanor case involves
a serious offense, the court must address the defendant personally, inform her of the
effect of her plea, determine that she is making the plea voluntarily, and, if she is
unrepresented, address her right to counsel. Crim.R. 11(D). If a misdemeanor case
involves a petty offense, the plain language of Crim.R. 11(E) requires a trial court to do
one thing before accepting a plea: inform the defendant of the effect of the plea. State v.
Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, paragraph one of the
syllabus. To satisfy the requirement of “informing a defendant of the effect of a plea,” the
trial court must inform the defendant of the appropriate language under Crim.R. 11(B)(2),
i.e, the court was required to inform appellant that a plea of no contest is not an admission
of defendant's guilt, but is an admission of the truth of the facts alleged in the complaint,
and the plea or admission shall not be used against the defendant in any subsequent civil
or criminal proceeding. Jones, supra, 2007-Ohio-6093 at ¶ 25.
{¶37} A misdemeanor is a “serious offense” if “the penalty prescribed by law
includes confinement for more than six months.” Crim.R. 2(C). Otherwise, a misdemeanor
is a “petty offense.” See Crim.R. 2(D). The offense at issue in the 2002 case was public
indecency pursuant to R.C. 2907.09(A)(2), a misdemeanor of the fourth degree. A
misdemeanor of the fourth degree is punishable by a jail term of not more than thirty days.
R.C. 2929.24(A)(4). The offense was therefore a “petty offense” and the trial court was
required only to advise appellant of the effect of his no-contest plea. The trial court stated
the following regarding the effect of a no-contest plea:
* * * *.
[Cite as State v. Rice, 2021-Ohio-988.]
You can enter a plea of no contest. A plea of no contest is not
an admission of your guilt, and the plea itself can’t be used against
you in later civil or criminal proceedings. But when you plead no
contest, it is an admission of the truth of what’s in the complaint.
* * * *.
T. 10/10/19, 24.
{¶38} The record reflects the trial court complied with Crim.R. 11. We disagree
with appellant’s premise that because the court did not pronounce the word “guilty” on the
record at the hearing, his plea to a misdemeanor petty offense cannot be used to enhance
the penalty level of the offense in the instant case. We find the context of the entire 2002
plea colloquy, including the resulting judgment entry of sentence and conviction and
appellant’s executed waiver of his rights, cannot be construed as anything less than a
finding of guilt. The first assignment of error is overruled.
The 2002 and 2006 convictions are not constitutionally infirm
{¶39} In his second assignment of error, appellant argues the trial court should
have excluded the prior convictions because they were uncounseled.
{¶40} R.C. 2945.75(B)(1) and (3) state:
(1) Whenever in any case it is necessary to prove a prior
conviction, a certified copy of the entry of judgment in such prior
conviction together with evidence sufficient to identify the defendant
named in the entry as the offender in the case at bar, is sufficient to
prove such prior conviction.
****
[Cite as State v. Rice, 2021-Ohio-988.]
(3) If the defendant claims a constitutional defect in any prior
conviction, the defendant has the burden of proving the defect by a
preponderance of the evidence.
{¶41} The burden rests with appellant to make a prima-facie showing of a
constitutional deficiency. In State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863
N.E.2d 1024, at paragraph one of the syllabus, the Ohio Supreme Court held that “[f]or
purposes of penalty enhancement in later convictions * * * when the defendant presents
a prima facie showing that prior convictions were unconstitutional because they were
uncounseled and resulted in confinement, the burden shifts to the state to prove that the
right to counsel was properly waived.”
{¶42} Brooke was modified in State v. Thompson, 121 Ohio St.3d 250, 2009-
Ohio-314, 903 N.E.2d 618. In Thompson, the defendant filed a pretrial motion to strike
prior uncounseled convictions from the indictment, arguing that the state couldn't use the
prior convictions “absent a showing * * *that he was either represented by counsel or
executed a valid waiver of counsel in the prior cases * * *.” The defendant failed to submit
any affidavits, transcripts, testimony, or other evidence to support his motion, however,
and the state responded with a memorandum contra including copies of the waiver-of-
rights forms the defendant executed in the previous OVI convictions. The Ohio Supreme
Court approved the trial court's decision to allow the priors to enhance the penalty in the
felony case because the burden of demonstrating a constitutional infirmity rests with the
defendant:
[A] defendant cannot establish a prima facie showing as to
“uncounseled” merely by establishing that he or she had been
[Cite as State v. Rice, 2021-Ohio-988.]
convicted without representation. For one thing, it is beyond dispute
that a person has a constitutional right to represent himself or herself;
therefore, it is not possible to establish a constitutional infirmity
merely by showing that a person did not have counsel. See Section
10, Article I, Ohio Constitution; State v. Gibson, [45 Ohio St.2d 366,
345 N.E.2d 399 (1976), paragraph one of the syllabus]. Furthermore,
in State v. Brandon, [45 Ohio St.3d 85, 543 N.E.2d 501 (1989),
syllabus], we stated, “Where questions arise concerning a prior
conviction, a reviewing court must presume all underlying
proceedings were conducted in accordance with the rules of law and
a defendant must introduce evidence to the contrary in order to
establish a prima-facie showing of constitutional infirmity.” With
respect to “uncounseled” pleas, we presume that the trial court
in the prior convictions proceeded constitutionally until a
defendant introduces evidence to the contrary. Thus, we
conclude that for purposes of penalty enhancement in later
convictions under R.C. 4511.19, after the defendant presents a
prima facie showing that the prior convictions were unconstitutional
because the defendant had not been represented by counsel and
had not validly waived the right to counsel and that the prior
convictions had resulted in confinement, the burden shifts to the state
to prove that the right to counsel was properly waived.
[Cite as State v. Rice, 2021-Ohio-988.]
State v. Thompson, 121 Ohio St.3d 250, 2009-Ohio-314, 903
N.E.2d 618, ¶ 6 (emphasis added).
{¶43} There is no dispute in the instant case that appellant was not represented
by counsel when he entered the pleas resulting in both the 2002 and 2006 convictions,
but appellant challenges the validity of his waiver of the right to counsel. Specifically,
appellant contends the waivers were insufficient because the misdemeanor trial courts
did not advise him the convictions could enhance the penalty of a subsequent offense.
{¶44} “In order to establish an effective waiver of right to counsel, the trial court
must make sufficient inquiry to determine whether defendant fully understands and
intelligently relinquishes that right.” State v. Gibson, 45 Ohio St.2d 366 (1976), paragraph
two of the syllabus. Because the 2002 and 2006 convictions were for petty offenses, the
waiver of his right to counsel was required to be made in open court and recorded but
was not required to be in writing. Crim.R. 22; Crim.R. 44(C). The record before us
contains a certified copy of appellant’s executed waiver in the 2002 case as noted supra
in the statement of facts. The certified record also includes a transcript of the proceedings
at the arraignment and plea hearings in the 2002 and 2006 convictions. In both of those
hearings, appellant effectively waived his right to counsel.
{¶45} The issue remains whether the misdemeanor trial courts were required to
advise appellant that his convictions could enhance the penalty level of a subsequent
offense. The United States Supreme Court has noted:
As a general proposition, a sentencing judge “may
appropriately conduct an inquiry broad in scope, largely unlimited
either as to the kind of information he may consider, or the source
[Cite as State v. Rice, 2021-Ohio-988.]
from which it may come.” United States v. Tucker, 404 U.S. 443, 446,
92 S.Ct.589, 30 L.Ed.2d 592 (1972). “Traditionally, sentencing
judges have considered a wide variety of factors in addition to
evidence bearing on guilt in determining what sentence to impose on
a convicted defendant.” Wisconsin v. Mitchell, 508 U.S. 476, 485,
113 S.Ct. 2194, 124 L.Ed.2d 436 (1993). One such important factor,
as recognized by state recidivism statutes and the criminal history
component of the [federal] Sentencing Guidelines, is a defendant's
prior convictions. Sentencing courts have not only taken into
consideration a defendant's prior convictions, but have also
considered a defendant's past criminal behavior, even if no
conviction resulted from that behavior. We have upheld the
constitutionality of considering such previous conduct in Williams v.
New York, 337 U.S. 241, 69 S.Ct.1079, 93 L.Ed. 1337 (1949). * * *.
Nichols v. U.S., 511 U.S. 738, 747, 114 S.Ct. 1921, 128
L.Ed.2d 745 (1994).
{¶46} The Nichols Court further declines to accept the defendant's assertion,
similar to appellant's argument here, that due process requires any kind of “warning” to
defendants entering a no-contest plea or upon conviction that the conviction might later
be used for enhancement purposes upon commission of a future crime. Id.{¶47} Our colleagues on the Fourth District Court of Appeals rejected an
argument similar to Johnson's most succinctly, and we adopt their rationale:
[Cite as State v. Rice, 2021-Ohio-988.]
There appears to be no duty in Ohio to inform a defendant
pleading guilty of the possible enhancement of sentences resulting
from future crimes, nor can this court see why there should be such
a duty. A trial court judge should not be required to anticipate
recidivist behavior by a defendant who enters a guilty plea in that
court. To be sure, a defendant is entitled to be advised of the effect
of his guilty plea so that it can be shown that the plea was knowingly
and voluntarily made. But it begs the question to argue that a
defendant who pleads guilty would not be aware that if he gets
convicted of the same offense again it is going to go harder on him
the second time around.
State v. Johnson, 5th Dist. Stark No. 2011-CA-237, 2012-
Ohio-3227, ¶ 38-40, citing State v. Southers, 4th Dist. No. 88CA10,
1988 WL 125024 (Nov. 23, 1988); see also, State v. Wynn, 5th Dist.
Stark No. 2011CA00244, 2012-Ohio-3430, ¶ 28; State v. Anderson,
5th Dist. Stark No. 2011CA00226, 2012-Ohio-4476, ¶ 55.
{¶48} We find it was not necessary for the trial courts in the 2002 and 2006
convictions to warn appellant that his convictions could enhance subsequent offenses,
thereby rendering his waiver of counsel invalid.
{¶49} The trial court in the instant case therefore did not err in permitting the 2002
and 2006 convictions to enhance the penalty to a felony of the fifth degree. See, State v.
Lewis, 11th Dist. Lake No. 2009-L-138, 2010-Ohio-4288, ¶ 44 [“Applying the foregoing to
the case sub judice, we note that there was no duty for the trial court to inform appellant
[Cite as State v. Rice, 2021-Ohio-988.]
before accepting his plea that the plea could be used to enhance any subsequent
offenses. Thus, the trial court did not err by allowing the state to use appellant's prior
convictions for the purpose of enhancement.”]; State v. Porter, 49 Ohio App.2d 227, 230,
369 N.E.2d 759 (1976). [“Convictions resulting from guilty pleas made by a defendant
who is not informed that subsequent similar criminal conduct will subject him to additional
criminal liability under a repeat offender statute are neither void nor voidable. Such
convictions are properly alleged in an indictment of the defendant for subsequent criminal
acts.”]; State v. Southers, 4th Dist. Pickaway No. 88 CA 10, 1988 WL 125024, *2 [There
appears to be no duty in Ohio to inform a defendant pleading guilty of the possible
enhancement of sentences resulting from future crimes, nor can this court see why there
should be such a duty. A trial court judge should not be required to anticipate recidivist
behavior by a defendant who enters a guilty plea in that court. To be sure, a defendant is
entitled to be advised of the effect of his guilty plea so that it can be shown that the plea
was knowingly and voluntarily made. But it begs the question to argue that a defendant
who pleads guilty would not be aware that if he gets convicted of the same offense again
it is going to go harder on him the second time around.]; State v. Firestone, 4th Dist.
Vinton No. 00CA542, 2001-Ohio-2506 (Mar. 28, 2001) [Crim.R. 11 does not require the
court to inform appellant of the potential penalties of future crime].
{¶50} Appellant’s third assignment of error is overruled.
The trial court did not err in finding appellant was the subject of the 2002 and
2006 convictions
{¶51} Next, appellant argues the trial court erred in identifying him as the subject
of the 2002 and 2006 convictions. We note there is no evidence in the record that
appellant was not the subject of those convictions; in fact, appellant submitted an affidavit
[Cite as State v. Rice, 2021-Ohio-988.]
in support of his uncounseled-plea argument stating that he “did not recall” whether he
was advised properly of his right to counsel. Appellant argues that affidavit should not be
used as an admission that he was the subject of those convictions, but he can’t have it
both ways: he was inadequately advised of his right to counsel or it wasn’t him, not both.
{¶52} We further note the face of the 2006 complaint cites the 2002 conviction,
and the trial court discussed the 2002 conviction with appellant at his 2006
arraignment/plea. Appellant’s underlying premises that he is not the subject of the 2002
and 2006 convictions, and that he was unaware of the effect of prior convictions to
enhance subsequent offenses, are inconsistent with the entire record before us.
{¶53} In short there is no credible argument to be made at this stage of the
proceedings that appellant is not in fact the subject of the 2002 and 2006 convictions.
Appellant does raise this argument, however, but this is the rare case in which appellee
produced audio and visual tape of the arraignment/plea hearings of the underlying
municipal court proceedings. The trial court, as finder of fact, was permitted to review
that evidence and compare the appellant before him and determine whether appellant
was the subject of the prior convictions. The trial court reviewed the evidence and
concluded appellant was the same defendant. T. 10/15/19, 98-99. The weight of the
evidence and the credibility of the witnesses are determined by the trier of fact. State v.
Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
{¶54} Appellant’s third assignment of error is overruled.
[Cite as State v. Rice, 2021-Ohio-988.]
Appellant’s conviction is supported by sufficient evidence
{¶55} Finally, appellant reiterates his prior arguments in his fourth assignment of
error, arguing his conviction of public indecency as a felony of the fifth degree is not
supported by sufficient evidence.
{¶56} As noted supra, appellee was required to prove appellant “recklessly * * *
under circumstances in which the person's conduct is likely to be viewed by and affront
others who are in the person's physical proximity and who are not members of the
person's household, engaged in conduct that to an ordinary observer would appear to be
sexual conduct or masturbation.” R.C. 2907.09(A)(3). Further, pursuant to R.C.
2907.09(C)(3), “* * * [i]If the offender previously has been convicted of or pleaded guilty
to two or more violations of this section, a violation of division (A)(2) or (3) of this section
is a misdemeanor of the first degree or, if any person who was likely to view and be
affronted by the offender's conduct was a minor, a felony of the fifth degree.” The factors
listed in subsection (C) are enhancing elements which must be proven beyond a
reasonable doubt. State v. Downs, 7th Dist. No. 15 MA 0170, 2017-Ohio-1014, 86 N.E.3d
787, ¶ 23. R.C. 2945.75 specifically indicates factors that enhance the degree of the
offense are “elements.” State v. Russell, 12th Dist. Butler No. CA2012-03-066, 2013-
Ohio-1381, ¶ 12, citing State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, ¶ 8.
{¶57} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two
of the syllabus, in which the Ohio Supreme Court held, “An appellate court’s function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if believed,
[Cite as State v. Rice, 2021-Ohio-988.]
would convince the average mind of the defendant’s guilt beyond a reasonable doubt.
The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.”
{¶58} In light of our rejection of appellant’s three assignments of error, we find
appellant’s conviction upon one count of public indecency as a felony of the fifth degree
is supported by sufficient evidence. The stipulated facts of the instant case, in addition
to the evidence of the 2002 and 2006 convictions, establish appellant’s guilt beyond a
reasonable doubt. Appellant’s fourth assignment of error is therefore overruled.
CONCLUSION
{¶59} Appellant’s four assignments of error are overruled and the judgment of the
Delaware County Court of Common Pleas is affirmed.
By: Delaney, P.J.,
Baldwin, J. and
Wise, Earle, J., concur.