State v. Moschell

[Cite as State v. Moschell, 2020-Ohio-6818.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ROBERT MOSCHELL,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0129
Criminal Appeal from the
Youngstown Municipal Court of Mahoning County, Ohio
Case No. 19 CRB 1481
BEFORE:
Gene Donofrio, Cheryl L. Waite, David A. D’Apolito, Judges.
JUDGMENT:
Reversed and Remanded
Atty. J. Holland, Holland & Muirden, 1343 Sharon Copley Road, P.O. Box 345, Sharon
Center, Ohio 44274, for Plaintiff-Appellee and
Atty. Rachel Cerni, Cerni Law LLC, 3685 Stutz Drive, Suite 100, Canfield, Ohio 44406,
for Defendant-Appellant.
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Dated:
December 18, 2020
Donofrio, J.
{¶1} Defendant-appellant, Robert Moschell, appeals from a Youngstown
Municipal Court judgment convicting him of two counts of cruelty to companion animals
following a guilty plea.
{¶2} According to a report from Animal Charity of Youngstown, Youngstown
Police and Fire were dispatched to appellant’s residence on the suspicion that there was
a deceased person inside the residence. After Youngstown Police and Fire made entry,
they contacted Animal Charity of Ohio who then dispatched Jessica MacMurchy to
appellant’s residence.
{¶3} Upon entering the residence, MacMurchy detected a strong odor of
ammonia which burned her nose and throat. At the residence, there were 12 cats (four
adults outside the residence, four adults inside the residence, and four kittens inside the
residence). There were also two dogs that were in differing stages of malnourishment,
one being dehydrated and the other emaciated to the point where its bones were showing.
The emaciated dog was tied to a pole in the basement. Also in the basement were two
bowls both of which were dirty. One bowl was empty and the other had a small amount
of water and dead flies in it. Both dogs had fleas. There were also two dirty litter boxes
with numerous flies swarming them. The temperature inside the house was 88 degrees
Fahrenheit with a heat index of 93 degrees.
{¶4} MacMurchy concluded that the animals were neglected and living in
deplorable conditions. She then seized the two dogs and the eight indoor cats and posted
a notice of seizure on the front door. She was unable to seize the four outdoor cats.
{¶5} The Youngstown Law Department then filed a complaint against appellant
charging him with four counts of cruelty to companion animals in violation of R.C.
959.131(D)(1), second-degree misdemeanors. Appellant initially entered a not guilty plea
to all counts.
{¶6} Later, after plea negotiations with plaintiff-appellee, the State of Ohio,
appellant entered into a plea agreement with the state. Under the terms of the plea
agreement, the state agreed to dismiss two of the four counts. The state also agreed to
Case No. 19 MA 0129
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recommend concurrent 90-day jail sentences that would be suspended pending
successful completion of five years of non-reporting probation. As part of the plea
agreement, the state was to request that appellant surrender all current animals and be
subject to an indefinite prohibition against keeping companion animals.
{¶7} A magistrate held a change of plea hearing and accepted appellant’s plea.
The magistrate then sentenced appellant to the sentence recommend in the plea
agreement. The trial court adopted the magistrate’s decision on November 6, 2019.
{¶8} Appellant timely filed this appeal on November 13, 2019. He now raises
three assignments of error.
{¶9} We will address appellant’s third assignment of error first as it is
dispositive.
{¶10} Appellant’s third assignment of error states:
WHETHER OR NOT THE TRIAL COURT PROPERLY
DETERMINED WHETHER THE GUILTY PLEA OF APPELLANT WAS
ENTERED KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY IN
COMPLIANCE WITH CONSTITUTIONAL AND PROCEDURAL
SAFEGUARDS.
{¶11} Appellant argues that the magistrate failed to properly advise him of the
effect of a guilty plea and failed to ensure that he was making his plea voluntarily. He
argues he was prejudiced by the failure of these advisements because had he been
advised of them, he may have requested an evidentiary hearing.
{¶12} Appellant pleaded guilty to two second-degree misdemeanors. Second-
degree misdemeanors have a maximum jail term of 90 days. R.C. 2929.24(A)(2). These
are petty offenses as defined in Crim.R. 2(D). “In misdemeanor cases involving petty
offenses 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.” Crim.R. 11(E). To satisfy the requirement of informing a
defendant of the effect of a plea, the trial court must inform the defendant of the
appropriate Crim.R. 11 (B) language. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-
6093, 877 N.E.2d 677, ¶ 25. In the case of a guilty plea to a misdemeanor for a petty
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offense, the effect of the plea is that a plea of guilty is a complete admission of guilt. Id.;
Crim.R. 11(B)(1).
{¶13} A magistrate conducted appellant’s change of plea hearing. The hearing
was very brief. At the beginning of the hearing there were some “inaudible” comments
made. (Plea Tr. 3). The following colloquy then took place:
THE COURT: * * * All right. This is 19 CRB 1481. Is it Moschell?
MR. MOSCHELL: Yes, it is, sir.
THE COURT: All right. It’s my understanding after discussions with
the prosecutor, that you’ve entered into a Rule 11 plea agreement whereby
the prosecutor’s recommending that Counts 2 and 4 be dismissed. In
exchange, your client is going to withdraw his former plea of not guilty and
enter a plea of guilty to Counts 1 and 3; is that correct?
MR. WEXLER [appellant’s counsel]: That is correct, Your Honor.
THE COURT: And as recommended by the prosecutor, the
defendant will be sentenced to 90 days jail on both counts, 1 and 3. Those
90-day sentences will be concurrent. All 90 days will be suspended pending
successful completions of five years of probation. That probation will be
non-reporting.
The conditions of that probation that you shall not possess or live
with any animals. You’ll obtain a mental health assessment and abide by
the recommended treatment. You’ll consent to inspections by law
enforcement, including humane agents, to confirm compliance with this
order, along with surrendering any current animals to animal charity. You
also are subject to an indefinite prohibition against keeping companion
animals pursuant to Ohio Revised Code 959.99(E)(6)(A).
(Plea Tr. 3-4). At the end of this statement, the court then directly addressed
appellant as follows:
THE COURT: Now, Mr. Moschell, do you own any current animals?
Case No. 19 MA 0129
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MR. MOSCHELL: I have two cats, yeah.
***
THE COURT: The Court will waive the court costs. We will not
impose any kind of fine at this time. All right. Very good. Mr. Moschell, any
questions?
MR. MOSCHELL: No, sir.
(Plea Tr. 4-5).
{¶14} At no point during the change of plea hearing did the magistrate advise
appellant that a guilty plea is a complete admission of guilt. In fact, the magistrate did not
mention anything even similar to the required advisement.
{¶15} In addressing whether the lack of advisement constitutes reversible error,
this court has stated:
When the trial court does not substantially comply in regard to a
nonconstitutional right, such as the effect of a no contest plea [or a guilty
plea], reviewing courts must determine whether the trial court partially
complied or failed to comply with the dictates of the rule in question. State
v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. If
there is partial compliance, such as mentioning mandatory postrelease
control without explaining it, the plea is only to be vacated if the defendant
demonstrates a prejudicial effect. Id. * * * However, if the trial court
completely fails to comply with the rule, the plea must be vacated; a showing
of prejudice is not needed to be demonstrated in that instance. Id. An
example of complete failure to comply with the rule is failing to mention
postrelease control at all during the plea colloquy even though it is
applicable to the defendant. State v. Sarkozy, 117 Ohio St.3d 86, 2008-
Ohio-509, 881 N.E.2d, 1224, ¶ 22. See also State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462.
State v. Lazazzera, 7th Dist. Mahoning No. 12 MA 170, 2013-Ohio-2547, ¶ 16.
Case No. 19 MA 0129
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{¶16} Here the magistrate did not so much as elude to the effect of appellant’s
guilty plea. In fact, the only times the magistrate directly addressed appellant was to ask
if he owned any animals and if he had any questions. Other than that, the magistrate
spoke to appellant’s counsel re-stating the terms of the plea agreement. Thus,
appellant’s plea failed to comply with Crim.R. 11(E).
{¶17} We should note that the state argues that because there were some
instances of inaudible comments, we can presume that the magistrate properly
addressed and informed appellant in accordance with Crim.R. 11. But the only portion of
the transcript that contains “inaudible” descriptions occurs at the very beginning, before
the magistrate has called the case number or identified appellant. Thus, the change of
plea hearing was not yet fully underway at that time.
{¶18} Because the magistrate completely failed to comply with Crim.R. 11(E) by
not informing appellant of the effect of his guilty plea, we must vacate appellant’s plea.
{¶19} Accordingly, appellant’s third assignment of error has merit and is
sustained.
{¶20} Appellant’s first assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
ARTICULATE ANY FACTUAL FINDINGS AS TO WHY IT IMPOSES THE
MOST ONEROUS SANCTIONS OF AN INDEFINITE PROHIBITION
AGAINST KEEPING COMPANION ANIMALS PURSUANT TO O.R.C.
§959.99(E)(6).
{¶21} Appellant’s second assignment of error states:
THE TRIAL COURT CANNOT IMPOSE A SENTENCE AGAINST
APPELLANT THAT EXCEEDS THE STATUTORY LIMITATIONS
IMPOSED BY O.R.C. § 2929.25(2).
{¶22} Our resolution of appellant’s third assignment of error has rendered both
appellant’s first and second assignments of error moot.
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{¶23} For the reasons stated above, the trial court’s judgment is hereby
reversed. Appellant’s guilty plea is vacated and the matter is remanded to the trial court
for further proceedings pursuant to law and consistent with this opinion.
Waite, P. J., concurs.
D’Apolito, J., concurs.
Case No. 19 MA 0129
[Cite as State v. Moschell, 2020-Ohio-6818.]
For the reasons stated in the Opinion rendered herein, appellant’s third assignment
of error is sustained. Appellant’s first and second assignments of error are moot. It is the
final judgment and order of this Court that the judgment of the Youngstown Municipal
Court, Ohio, is reversed and appellant’s guilty plea is vacated. We hereby remand this
matter to the trial court for further proceedings pursuant to law and consistent with this
opinion. Costs taxed against appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.