State v. Nared , 2017 Ohio 6999 ( 2017 )

[Cite as State v. Nared, 2017-Ohio-6999.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2017-CA-3
:
v. : T.C. NO. 16-CRB-3471
:
CLARENCE D. NARED : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
:
...........
OPINION
Rendered on the ___28th ___ day of _____July_____, 2017.
...........
MARC T. ROSS, Atty. Reg. No. 0070446, Prosecutor’s Office, 50 E. Columbia Street, 4th
Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
CHRISTOPHER C. GREEN, Atty. Reg. No. 0077072, 130 W. Second Street, Suite 830,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Clarence D. Nared appeals from a judgment of the Clark County Municipal
Court, which found him guilty on his guilty plea of theft, a misdemeanor of the first degree,
sentenced him to 180 days in jail, and imposed costs.
{¶ 2} For the following reasons, the judgment of the trial court will be reversed
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and this matter will be remanded for further proceedings.
{¶ 3} On September 14, 2016, Nared was arrested for stealing shoes from
another person on a bike path in Springfield. It appears from the transcript of the plea
hearing that Nared was also charged with and arrested for assault, but that offense was
under a different case number; it is unclear if these offenses were related. 1 Nared
remained in jail following his arrest. At a hearing on October 19, 2016, Nared pled guilty
to the theft charge, and the prosecutor asked to dismiss the assault charge because the
victim had not appeared. The prosecutor also agreed that the time served was “sufficient
in this [theft] case.” Defense counsel stated several times that the court was in
agreement with this sentence, and this assertion was not refuted.2 Nared was released
from jail,3 but sentencing was scheduled for a later date because of questions about
restitution. A presentence investigation (PSI) was ordered.
{¶ 4} In the PSI, the probation officer recommended that Nared be sentenced to
six months in jail. She described him as a “career thief,” who had been in jail or prison
most or part of “almost every year of his adult life,” had failed to pay fines and court costs
in any of his cases, and had failed to pay restitution of $30 in a theft case earlier that year.
{¶ 5} Based on the PSI report, and notwithstanding the statements at the plea
1
The presentence investigation report indicates that Nared did not harm or threaten the
victim and that the victim did not see any weapons.
2
We note that it appears from the transcript that the court reporter has referred to both
the prosecutor and defense counsel as “THE STATE” in its transcription.
3 There is some ambiguity in the record about how long Nared was held in jail prior to
entering his plea, and on which offense(s), and about the court’s calculation of 60 days
for time served when it imposed sentence (below). But these issues are not relevant to
this appeal.
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hearing that the parties and the court had agreed to a sentence of time served, the trial
court imposed a sentence of 180 days, with 60 days for time served, and costs. The
court did not order restitution.
{¶ 6} Nared returned to jail on December 6, 2016, to serve the remainder of his
sentence, with an anticipated release date of April 28, 2017.4 Nared did not request a
stay of any portion of his sentence. The record does not indicate that Nared paid the
court costs.
{¶ 7} On appeal, Nared argues that the trial court erred in failing to substantially
comply with Crim.R. 11(E) when it accepted his guilty plea.
{¶ 8} Crim.R. 11 sets forth distinct procedures for the trial court to follow in
accepting a plea, with the procedures varying based on whether the offense involved is
a misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a
felony. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 11; State
v. Hall, 2d Dist. Greene No. 2011 CA 32, 2012-Ohio-2539, ¶ 18. For a “petty
offense” misdemeanor, such as Nared’s theft offense, the trial court was required only to
inform Nared of the effect of his guilty plea. Jones at ¶ 14; Crim.R. 11(E); see Crim.R.
2 (defining classifications of offenses). The supreme court has held that, to satisfy the
requirement of informing a defendant of “the effect of the plea” before accepting a guilty
plea to a petty misdemeanor, the court is required to inform the defendant that the plea
is a complete admission of guilt. Jones at ¶ 25. Unlike the provisions applicable to more
serious offenses, Crim. R. 11(E) does not require the trial court to personally address the
4
A “full sentence release date” was stated on the Clark County Sheriff’s Office
“P.R.I.D.E./Trustee Screening Approval/Release Form,” which is contained in the record.
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defendant and determine that the defendant understands the nature of the charge and is
entering the plea voluntarily. State v. Wright, 2d Dist. Montgomery 26471, 2015-Ohio-
3919, ¶ 17, citing State v. Hopkins, 2d Dist. Greene No. 2002-CA-108, 2003-Ohio-5963,
¶ 16.
{¶ 9} Here, the trial court asked Nared if he had “any questions about the
maximum punishments” or about the constitutional rights he was “giving up,” but it did not
inform him that his plea constituted a complete admission of guilt. We agree with Nared
that the discussion at the plea hearing failed to comply with the requirements of Crim.R.
11(E) and Jones for a petty misdemeanor offense. We are also troubled by the fact that,
at several points during the plea hearing, Nared was told that the prosecutor and the
judge were in agreement with sentencing him to time served, but the court subsequently
imposed a sentence of 180 days.
{¶ 10} The State argues that the alleged failure by the trial court to comply with
Crim.R. 11(E) is moot because Nared has completed his sentence.
{¶ 11} “ ‘Where a criminal defendant, convicted of a misdemeanor, voluntarily
satisfies the judgment imposed upon him or her for that offense, an appeal from the
conviction is moot unless the defendant has offered evidence from which an inference
can be drawn that he or she will suffer some collateral legal disability or loss of civil rights
stemming from that conviction.’ ” State v. Byrd, 185 Ohio App.3d 30, 2009-Ohio-5606,
923 N.E.2d 161, ¶ 10 (2d Dist.), quoting State v. Golston, 71 Ohio St.3d 224, 226, 643
N.E.2d 109 (1994); State v. Martin, 2d Dist. Clark No. 2015-CA-106, 2016-Ohio-5352, ¶
10.
{¶ 12} The State correctly observes that Nared has completed his jail sentence.
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However, the record does not indicate that the costs imposed have been paid. (The
Clark County Municipal Court website indicates that they have not been paid.) We have
held that the completion of a jail sentence, payment of fines, and payment of costs are all
relevant to the question whether an appeal is moot. See, e.g., State v. Lovato, 2d Dist.
Montgomery No. 25683, 2014-Ohio-2311, ¶ 45; State v. Laster, 2d Dist. Montgomery No.
25019, 2013-Ohio-621, fn. 1; see also State v. Tsibouris, 1st Dist. Hamilton Nos. C-
120414 and 120415, 2014-Ohio-2612, ¶ 18. The State incorrectly asserts that the
payments of costs and restitution “are irrelevant because the appellant spent the
maximum amount of jail time allowable” for the offense of which he was convicted. We
reject the State’s argument that Nared’s appeal is moot.
{¶ 13} The assignment of error is sustained.
{¶ 14} The trial court’s judgment will be reversed, and this matter will be
remanded for further proceedings.
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HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Marc T. Ross
Christopher C. Green
Hon. Thomas E. Trempe