DocketNumber: Case No. 2000CA00254.
Judges: Wise, J.
Filed Date: 2/12/2001
Status: Non-Precedential
Modified Date: 4/17/2021
I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S PRE-SENTENCE MOTION TO VACATE THE PLEA OF NO CONTEST WITHOUT CONDUCTING A HEARING.
II. THE TRIAL COURT ERRED IN NOT INFORMING APPELLANT OF THE EFFECT OF HIS PLEA OF NO CONTEST AS MANDATED BY RULE 11(E) OF THE OHIO RULES OF CRIMINAL PROCEDURE.
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.
In order to comply with the above rule, the trial court should:
* * * advise the defendant of his right to a trial by jury or to the court; the burden upon the prosecution to prove his guilt beyond a reasonable doubt if he were to go to trial; his right to cross-examine the witnesses called against him; his right not to testify; and his right to subpoena any witness he may have in his own defense. The court should further advise the defendant that, if he pleads no contest, the court will make a finding with regard to the defendant's guilt or innocence, based upon an explanation of the circumstances as they are set forth in the complaint, as they are presented by the prosecution, or as they are presented by the complainant. City of Toledo v. Chiaverini (1983),
11 Ohio App.3d 43 ,44 . Further, in the case of City of Garfield Heights. v. Brewer (1984),17 Ohio App.3d 216 , the court stated that: Crim.R. 11(E) requires that the record affirmatively demonstrate that a plea of no contest was entered voluntarily, intelligently and knowingly. A meaningful dialogue between the court and the defendant is required whenever the possibility of incarceration exists.
Id. at syllabus.
The record indicates, in the case sub judice, that the trial court explained to appellant the degree of the offense, possible consequences, effect of a subsequent conviction for domestic violence, and his right to an attorney. Tr. at 4-5. However, the trial court did not explain to appellant his right to a trial by jury or to the court, the burden upon the prosecution to prove his guilt beyond a reasonable doubt if he were to go to trial, his right to cross-examine the witnesses called against him, his right not to testify, and his right to subpoena any witness he may have in his own defense. Also, the trial court did not explain to him that by entering a plea of no contest, the court would make a finding of guilt or innocence based upon an explanation of the circumstances contained in the complaint, presented by the prosecution or presented by the complainant. Based on the above, we conclude appellant's plea of no contest was not entered voluntarily, intelligently or knowingly. Accordingly, the trial court erred when it accepted appellant's plea of no contest and making a finding of guilty. Appellant's Second Assignment of Error is sustained.
We will not address appellant's First Assignment of Error as it is moot based on our disposition of appellant's Second Assignment of Error. For the foregoing reasons, the judgment of the Canton Municipal Court, Stark County, Ohio, is hereby reversed and remanded for further proceedings consistent with this opinion.
Wise, J. Gwin, P.J., and Edwards, J., concur.