State v. Nunley , 2023 Ohio 4577 ( 2023 )

[Cite as State v. Nunley, 2023-Ohio-4577.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-23-1136
Appellee Trial Court No. TRC-22-09124
v.
Karl Nunley DECISION AND JUDGMENT
Appellant Decided: December 15, 2023
*****
Rebecca Facey, City of Toledo Prosecuting Attorney, and
Jimmie Jones, Assistant Prosecuting Attorney, for appellee.
Anthony J. Richardson, II, for appellant.
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ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Karl Nunley, appeals the May 10, 2023 judgment of the Toledo
Municipal Court, finding him guilty of operating a motor vehicle under the influence of
alcohol in violation of R.C. 4511.19(A)(1)(a). Appellant argues that his no contest plea
to the underlying charge was not made knowingly, intelligently, or voluntarily, because
the trial court failed to comply with Traf.R. 10 when it accepted his no contest plea. The
state concedes that the trial court erred. Having reviewed the record, we find that the trial
court committed error in accepting appellant’s plea and we reverse the trial court’s
judgment.
II. Facts and Procedural Background
{¶ 2} On June 23, 2022, appellant was operating a vehicle on a public roadway in
Lucas County, Ohio. He was pulled over on suspicion of operating a vehicle while
intoxicated and ultimately arrested. He was charged with refusing to submit to chemical
tests to determine whether he was operating a vehicle while intoxicated in violation of
R.C. 4511.19(A)(2)(b), a first-degree misdemeanor; maintaining physical control of a
vehicle while intoxicated in violation of R.C. 4511.194, a first-degree misdemeanor; and
for failing to register his vehicle in violation of R.C. 4503.11, a minor misdemeanor. He
was released the following day on a personal recognizance bond. He appeared for his
arraignment on June 19, 2022, and entered a not guilty plea to each offense.
{¶ 3} Following negotiations with the state, appellant appeared for a change of
plea hearing on January 24, 2023. At that time, the state informed the trial court that it
had agreed to move for amendment of the refusal to submit to chemical test offense to a
charge of operating a vehicle while intoxicated in violation of R.C. 4511.19(A)(1)(a).
The state also agreed to seek dismissal the remaining counts in exchange for appellant’s
2.
entry of a no contest plea to the amended charge. Appellant’s counsel confirmed that this
was his understanding of the plea agreement. The trial court then engaged in a lengthy
discussion of appellant’s mental and physical health, appellant’s wife’s mental health as
it related to her dealing with appellant’s health issues, and the logistics of appellant
continuing to work while also attending counseling for alcohol abuse that may be ordered
upon his conviction. At no time during the change of plea hearing did the trial court elicit
an actual plea from appellant, engage in any plea colloquy with appellant to advise him of
the rights he would be waiving by entering a plea, or advise appellant of the effect of
entering a plea. Further, the trial court never announced a guilty verdict based on the
purportedly entered no contest plea. Nevertheless, the trial court set a sentencing hearing
for May 10, 2023.
{¶ 4} At sentencing, the trial court again engaged in significant discussion of
appellant’s mental and physical health as well as appellant’s wife’s mental health. At the
conclusion of the hearing, the trial court, without reference to any prior guilty finding,
sentenced appellant to a 6-month jail term, with all but 5 mandatory days suspended. It
also imposed 18 days of electronic monitoring following his service of the 5-day jail
term, imposed one year of active probation, a seven-year license suspension with
privileges for attending work, and a $525 fine plus court costs. Appellant’s sentence was
memorialized later that same day. The judgment entry reflected a guilty finding on the
3.
amended operating a vehicle while intoxicated offense based on appellant’s entry of a no
contest plea on January 24, 2023, despite the fact that no plea had ever been entered.
III. Assignments of Error
{¶ 5} Appellant timely appealed and assigns the following errors for our review:
1. Reversal is proper where trial court failed to offer appellant
colloquy required by Traf.R. 10 before his plea.
2. Reversal is proper where trial court failed to offer allocution.
3. Reversal is proper where appellant did not make a knowing,
intelligent plea.
4. Reversal is proper where trial court did not request explanation
of circumstances.
5. Reversal is proper where trial counsel failed to give sound
advice.
IV. Law and Analysis
{¶ 6} Appellant’s first and third assignments of error allege that the trial court
erred in accepting his no contest plea. Because our resolution of these assignments is
dispositive of the appeal, we address them first.
{¶ 7} In his first assignment of error, appellant argues that the trial court erred
when it failed to complete the plea colloquy required under Traf.R. 10(D) by not
informing him of the effect of his plea as described in Traf.R. 10(B). In his third
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assignment of error, appellant argues that his plea was not made knowingly, intelligently,
or voluntarily because the trial court failed to provide that information. In its brief, the
state concedes that the trial court erred in accepting appellant’s plea.1 We agree.
{¶ 8} To accept appellant’s no contest plea to his violation of R.C.
4511.19(A)(1)(a), the trial court was obligated to comply with Traf.R. 10(D). Toledo v.
Blackshear, 6th Dist. Lucas No. L-19-1092, 2020-Ohio-1233, ¶ 26. Traf.R. 10(D) states
that the trial court cannot accept a no contest plea “without first informing the defendant
of the effect of the plea.” Id. Trial courts comply with this requirement by “informing
the defendant of the applicable information in Traf.R. 10(B).” Id. Traf.R. 10(B) defines
the effect of a no contest plea as “not an admission of the defendant’s guilt, but * * * an
admission of the truth of the facts alleged in the complaint and such plea or admission
shall not be used against the defendant in any subsequent civil or criminal proceeding.”
{¶ 9} Here, as the state concedes, the record shows that the trial court failed to
advise appellant of the effect of his no contest plea. Moreover, the state concedes, and
we agree, that the record shows that the trial court failed to conduct any plea colloquy
that would confirm that appellant’s plea was entered knowingly, intelligently, and
voluntarily. The trial court’s complete lack of colloquy advising him of the loss of
1
The state conceded reversible error as to appellant’s first, second, third, and fourth
assignments of error. The state does not concede error as to appellant’s fifth assignment
of error.
5.
certain constitutional rights renders his plea invalid. See State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, ¶ 25.
{¶ 10} Put simply, the trial court failed to give appellant any advisements that
would show that it complied with Traf.R. 10(D) at the change of plea hearing or allow
this court to determine whether appellant entered his plea knowingly, intelligently, and
voluntarily. As a result, we find his first and third assignments of error well-taken.
Because our finding on these assigned errors is dispositive of this appeal, we find
appellant’s second, fourth, and fifth assignments of error are moot and, therefore, we
decline to address them pursuant to App.R. 12(A)(1)(c).
V. Conclusion
{¶ 11} For these reasons, we find appellant’s first and third assignments of error
well-taken and we reverse the May 10, 2023 judgment of the Toledo Municipal Court.
We remand this matter to the trial court for further proceedings.
{¶ 12} The state is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed,
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
6.
State of Ohio/City of Toledo
v. Karl Nunley
L-23-1136
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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