DocketNumber: No. 74792.
Judges: ANNE L. KILBANE, J.:
Filed Date: 12/16/1999
Status: Non-Precedential
Modified Date: 4/18/2021
At about 10:00 p.m. on June 4, 1998, Pauch, then 22 years of age, was with a group of young adults near Bridal Veil Falls in the Cleveland Metroparks. Park Rangers approached and detected a strong odor of burning marijuana coming from the area. Pauch was observed smoking "blunt" (marijuana joint). He gave the officers his consent for the search of his car and a Ranger discovered a large ceramic pipe with burnt residue. Pauch admitted ownership of the pipe and stated he had forgotten it was in the car. He then volunteered that a bag of marijuana was in a back pack in the car's trunk. He was arrested, told he was being charged with drug abuse and possession of drug paraphernalia, he posted a personal bond and was released.
Pauch, without benefit of counsel, appeared for arraignment on July 29, 1998. The transcript reveals that the judge advised whoever was present, en masse, of their constitutional rights, including the right to an attorney; the right to remain silent; the right of compulsory process; the right of confrontation; and the prosecution's burden to show guilt beyond a reasonable doubt of every element of the case. At an unknown hour, Pauch appeared before the judge, entered a plea of guilty without the benefit of counsel, and was addressed in the following manner:
THE JUDGE: The plea of guilty admits that you had in your possession in the City of — in a MetroPark, paraphernalia generally used in the drug trade that could carry with it thirty (30) days and two hundred fifty dollars ($250). The minor misdemeanor could carry up to a hundred dollars ($100) With the plea, you admit your guilt, you waive your right to any further doings in this court. You waive your rights to an attorney, court-appointed if indigent, and also to a jury trial. I ask that you read over a statement of rights, waiver of counsel and jury. And after the recess, thereafter we'll bring you back. These are the rights you waive when you enter a plea, including your rights to an attorney, court appointed attorney if indigent, the jury trial. You do read, write and understand the English language?
MR. PAUCH: Mm-hmm.
THE COURT: Okay, if you'll read this over, we'll bring you back, sir.
THE JUDGE: Daniel, to the charge of drug paraphernalia and drug abuse, your plea then is?
MR. PAUCH: (Inaudible)
THE JUDGE: Pardon.
MR. PAUCH: Guilt, guilty.
THE JUDGE: Guilty admits your guilt, waives your rights to an attorney, a court-appointed attorney if indigent and to a jury trial.
Has anyone made any promises to you as to what the sentence of the Court might be?
MR. PAUCH: No.
THE JUDGE: Has anyone forced you into entering this plea, admitting your guilt and waiving your rights to an attorney, a court-appointed attorney if indigent or to a jury trial?
MR. PAUCH: No.
THE JUDGE: And you do read, write and understand the English language. It says here you have in possession marijuana, the minor misdemeanor (inaudible) you had a ceramic pipe, burnt residue, test to check too, marijuana. The court will make the finding of guilt.
Before sentencing, is there anything you wish to say to the Court, sir?
MR. PAUCH: I just put myself in a bad situation with people that I didn't know, and just stupid, stupidity.
THE JUDGE: Understand your license is suspended one year for drug abuse.
MR. PAUCH: What's that?
THE JUDGE: Your license is suspended one year for drug abuse.
MR. PAUCH: May I ask why?
THE JUDGE: Because the law requires it.
MR. PAUCH: But I mean, it didn't have anything to do with my car. I wasn't
THE JUDGE: It doesn't matter. That's what the law is. You see, the State sets up the rules for your license. One of them is if you're convicted of a drug abuse, you lose your license.
MR. PAUCH: What if I didn't have my license? What if I just didn't have a license?
THE JUDGE: It doesn't matter, sir. It's the use of it. The Court imposes thirty (30) days, two hundred fifty dollars ($250), a hundred dollars ($100) in costs. Suspend a hundred and fifty (150) of the fine. You'll be on inactive probation for three years. Any questions?
MR. PAUCH: I just don't understand how my license comes into play with it.
THE JUDGE: Because the State of Ohio puts it into play. You are playing on their field, sir. They make the rules.
You can go with the officer.
(END OF PROCEEDINGS)
Pauch raises two assignments of error. He first contends the judge committed reversible error when he failed to advise him that, in addition to the possible 30-day jail sentence, $250 fine for the fourth degree misdemeanor, and the $100 fine for the minor misdemeanor, he faced an additional mandatory penalty, i.e., a six month to five year suspension of his driver's license under both R.C.
Criminal Rule 11 (E) prohibits a judge from accepting any plea to a misdemeanor case involving a petty offense "without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty." Practically, however, to be fully informed of "the effect of the plea," as Crim.R. 11 (E) requires, a defendant in a misdemeanor case must be aware of the same rights as a felony defendant under Crim.R. 11 (C) (2). Cleveland v. Wanzo
(1999),
For a waiver of constitutional rights to be valid under the Due Process Clause, the record must evince an intentional relinquishment or abandonment of a known right or privilege. Statev. Mikulic (1996),
While strict adherence to the requirements of Crim.R. 11 is preferred, Ballard,
This court has held that the failure to inform a defendant of the possible sentence does not substantially comply with the requirements of Crim.R. 11 (E). Mancini,
In the present case, the transcript is clear. While the judge advised Pauch of the maximum statutory penalty for a minor misdemeanor and misdemeanor of the fourth degree, he did not advise him, prior to sentencing, of the statutorily mandated penalty contained in both the drug paraphernalia statute, R.C.
Moreover, although the judge addressed whoever was in the courtroom prior to the arraignment of their rights, there is nothing in the record to show that Pauch was then present and the judge did not address all of the constitutional and statutory rights contained in Crim.R. 11 (C) (2) to Pauch personally as required under Crim.R. 11 (E). Wanzo, supra. While the transcript shows that Pauch waived his right to counsel and his right to a jury trial, it is not evident that he understood that, by entering a guilty plea, he would also be giving up his constitutional right to compulsory process pursuant to Article
Pauch's second assignment of error asserting that the judge erred in imposing a jail sentence for a fourth degree misdemeanor without considering the criteria mandated by R.C.
The judgment of conviction on both the drug paraphernalia and drug abuse counts are reversed, Pauch's pleas are vacated and the case is remanded for further proceedings consistent with this opinion.
It is ordered that the appellant recover from appellee his costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Garfield Heights Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
TERRENCE O'DONNELL, P.J., AND PATRICIA ANN BLACKMON, J.,CONCURRING IN JUDGMENT ONLY.
_________________________________ ANNE L. KILBANE JUDGE