State v. Thorpe , 9 Ohio App. 3d 1 ( 1983 )

Crim. R. 11(B)(2) directs that a "no contest" plea "is an admission of the truth of the facts alleged in the indictment, information, or complaint * * *." That rule applies with equal force to felony and misdemeanor prosecutions. Crim. R. 1(A);State, ex rel. Sawyer, v. O'Connor (1978), 54 Ohio St.2d 380,381-382 [8 O.O.3d 393] (for misdemeanors); State, ex rel. Leis, v. Gusweiler (1981), 65 Ohio St.2d 60 [19 O.O.3d 257] (for felonies); State v. Pernell (1976), 47 Ohio App.2d 261 [1 O.O.3d 318]. For felony cases, the trial court must determine that the defendant is making the plea voluntarily, advise the defendant about the effect of such a plea, and determine that the defendant understands its effect, including the court's power to "proceed with judgment and sentence" upon acceptance of that plea. Crim R. 11(C)(2)(b).

At least for noncapital cases, there is no requirement for the court to obtain testimony or a recitation of facts from anyone before entering a guilty finding, after a no contest plea in a felony case. Crim. R. 11(C)(4). Unlike the practice followed in federal courts, an Ohio trial court has no obligation to determine that a factual basis exists for the plea by a hearing on the record. Compare Fed.R.Crim.P. 11(f); Santobello v. NewYork (1971), 404 U.S. 257, 261.

In jurisdictions like Ohio, which do not require a record recitation sufficient to show a factual basis for a guilty or no contest plea, such information may still be necessary to determine whether that plea is voluntary where the defendant simultaneously asserts his innocence. See Willett v. Georgia (C.A. 5, 1979), 608 F.2d 538, 540. Of course, the court should decline to accept a guilty or no contest plea in a felony case if the judge is not satisfied after hearing recitations by counsel or others that it has been entered knowingly, intelligently, and voluntarily. Cf. State v. Cohen (1978), 60 Ohio App.2d 182 [14 O.O.3d 142].

The trial court has clear authority in a felony case to determine whether the facts alleged in the indictment,information, or complaint are sufficient to justify conviction of the offense charged. If not, the judge may dismiss the charge or find the defendant guilty of a lesser included offense which is shown by those alleged facts. State, ex rel. Leis, v. Gusweiler,supra.

While double jeopardy considerations might prevent review of a trial court's finding of an acquittal or guilt on a lesser included offense from information outside the allegations in the felony indictment, the trial judge should not consider such matters. Cf. State, ex rel. Leis, v. Gusweiler, supra. The sole offense involved in this appeal is a felony, so we need not and do not express any view whether the same rules apply to misdemeanor cases.

Since the indictment in this case does allege facts sufficient to support a conviction, the trial court's acceptance of the no contest plea required a guilty finding.

PARRINO, P.J., concurs in the foregoing opinion.