State v. Buennagel

[Cite as State v. Buennagel, 2011-Ohio-3413.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 74
v. : T.C. NO. CRB1287283S
KARL F. BUENNAGEL : (Criminal appeal from
Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of July , 2011.
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BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant Fairborn Prosecutor, 510 West Main
Street, Fairborn, Ohio 45324
Attorney for Plaintiff-Appellee
PAUL A. CHIARAVALLOTI, Atty. Reg. No. PHV-1191-2011, 300 International Drive,
Suite 100, Williamsville, New York 14221
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Karl F. Buennagel appeals from two judgments of the Fairborn Municipal
Court, which denied his applications for an order finding him not guilty following his no
contest plea. For the following reasons, the trial court’s judgments will be affirmed.
I
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{¶ 2} In 1983, Buennagel pled no contest to sexual imposition, a misdemeanor, in
the Fairborn Municipal Court. The court apparently found him guilty and sentenced him to
ten days in jail, all of which were suspended, a $150 fine, and court costs of $30. Nothing
in the record suggests that Buennagel appealed from his conviction.
{¶ 3} According to Buennagel’s affidavit that was attached to his 2010 Fairborn
filings, Buennagel currently resides in Cheektowaga, New York, works in Buffalo, New
York, and is leading a law-abiding life. Prior to 2010, Buennagel had no difficulty with
international travel. In 2010, however, Buennagel was prohibited from entering Canada; he
was informed by a border agent that he was being denied entry to that country due to a 1983
misdemeanor conviction.
{¶ 4} On June 8, 2010, Buennagel filed an Application for Order Finding
Defendant Not Guilty Following No Contest Plea, pursuant to R.C. 2953.32,1 asking the
court to change the finding of guilty upon his no contest plea, as indicated on the court’s
docket, to not guilty. Buennagel stated in his supporting affidavit, in part:
{¶ 5} “4. It was my understanding that by entering a ‘NO CONTEST’ plea, I
would not have a criminal record.
{¶ 6} “5. It is my recollection that at the time of my plea, I was not asked for an
explanation of the circumstances relating to the alleged crime.
{¶ 7} “6. Recently, I discovered that as a result of this plea, I had a misdemeanor
conviction on my record.”
{¶ 8} In a supporting affidavit by Buennagel’s counsel also filed in the Municipal
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This section relates to the sealing of records.
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Court, counsel stated that the “disposition document” from the Municipal Court consisted of
an index card. That card shows that “guilty” was crossed out and “no contest” was written
in its place. Counsel argues that this handwritten alteration raises an inference that the trial
court did not intend to find Buennagel guilty. Counsel further notes that Ohio case law
requires that an explanation of the circumstances of the offense be placed on the record
when a no contest plea is entered. The card does not include an explanation of the
circumstances.
{¶ 9} In reviewing Buennagel’s application, the trial court noted that all records
concerning Buennagel’s case had been destroyed in accordance with the Fairborn Municipal
Court’s record retention policies and the Ohio Revised Code. The only record available
was an Index Summary Card, which summarized the docket and disposition of Buennagel’s
case. The Index Summary Card was prepared by the Clerk of Court’s office of the Fairborn
Municipal Court when the record was destroyed. The trial court noted that the Index
Summary Card did not include a finding of guilt, but the court concluded that “[t]he fact that
a criminal sentence was imposed clearly indicates that defendant was found guilty.”
{¶ 10} The trial court further indicated that it could construe Buennagel’s application
as an application for expungement or to seal the record under R.C. 2953.32. It stated,
however, that convictions for sexual imposition under R.C. 2907.06 were excluded from
consideration under R.C. 2953.36. The court denied Buennagel’s application.
{¶ 11} In July 2010, Buennagel filed a Renewed Application for Order Finding
Defendant Not Guilty Following No Contest Plea, seeking a finding of not guilty “thereby
allowing a sealing of Defendant’s record or expungement.” The trial court overruled the
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renewed application, stating that Buennagel had failed to raise any new issues.
II
{¶ 12} Buennagel appeals from the trial court’s judgments, claiming that the trial
court erred in overruling his applications for a finding of not guilty.
{¶ 13} This case is complicated by the fact that the record of Buennagel’s criminal
case has been destroyed. It is unknown when the record was destroyed, but under the
current version of R.C. 1901.41, effective March 25, 2005, the municipal court was
permitted to order files to be destroyed, without first copying or reproducing the files, if the
case had been finally disposed of for 15 years or more prior to the adoption of a court rule
regarding record retention. R.C. 1901.41(A)(2). In 2005, Buennagel’s case would have
been terminated 22 years previously.
{¶ 14} R.C. 1901.41(E) further requires that “each clerk of a municipal court ***
retain documentation regarding each criminal conviction and plea of guilty involving a case
that is or was before the court. The documentation shall be in a form that is admissible as
evidence in a criminal proceeding as evidence of a prior conviction or that is readily
convertible to or producible in a form that is admissible as evidence in a criminal proceeding
as evidence of a prior conviction ***.” R.C. 1901.41(E). The Index Summary Card is the
clerk’s documentation of Buennagel’s conviction. It is not the original judgment entry in
Buennagel’s criminal case.
{¶ 15} Buennagel argues that the Index Summary Card does not include a finding of
guilt and, instead, the word “guilty” is crossed out and the phrase “No Contest 7-15-83” is
written its place. He asserts that this handwritten change indicates the trial court’s lack of a
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finding of guilt.
{¶ 16} The Index Summary Card does not include a finding of guilt by the trial
court. However, the disposition portion of the card indicates a sentence of 10 days in jail,
all of which were suspended, a fine of $150, and court costs of $30. We agree with the trial
court that “[t]he fact that a criminal sentence was imposed clearly indicates that defendant
was found guilty.” Moreover, the crossing out of the word “guilty” appears to refer to the
nature of the plea that was entered, not the court’s finding. We read the card to indicate that
Buennagel entered a not guilty plea on May 12, 1983, and a no contest plea on July 15, 1983.
{¶ 17} Next, Buennagel argues that “[n]owhere on the Summary Card is there any
indication of an explanation of the circumstances by the prosecutor or the trial court
establishing the elements of the offense charged against the Appellant such that the court
could make a guilty finding following the Appellant’s no contest plea.” Citing Cuyahoga
Falls v. Bowers (1984), 9 Ohio St.3d 148, and Ohio v. Waddell (1995), 71 Ohio St.3d 630,
Buennagel asserts that, where the State’s statement of facts fails to establish all of the
elements of the offense, a defendant who pleads no contest must be acquitted of the offense.
{¶ 18} R.C. 2937.07 provides in part that “[a] plea to a misdemeanor offense of ‘no
contest’ or words of similar import shall constitute a stipulation that the judge or magistrate
may make a finding of guilty or not guilty from the explanation of the circumstances of the
offense.” “The statutorily required explanation of circumstances does not mandate that
sworn testimony be taken but instead only contemplates some explanation of the facts
surrounding the offense that the trial court does not make a finding of guilty in a perfunctory
fashion.” State v. Jasper, Greene App. No. 2005 CA 98, 2006-Ohio-3197, ¶32, citing
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Bowers, 9 Ohio St.3d at 151.
{¶ 19} The explanation of circumstances is not required to be included in the court’s
sentencing entry. Rather, the explanation of circumstances must be given at the time of the
plea to ensure that the finding of guilt is warranted. Thus, even if the Index Summary Card
were construed as a final judgment entry, the card is not deficient for failing to include an
explanation of the circumstances. Nevertheless, whether the trial court’s apparent finding
of guilt was properly based upon an explanation of the circumstances is a matter that
Buennagel could have raised in a direct appeal from his conviction. Because he did not
appeal, he has waived this argument.
{¶ 20} Even if this argument were properly before us, we have no way of knowing
from the record what was said at the plea hearing. Buennagel recalls that “neither my
attorney at that time nor the prosecutor at the time were requested to give an explanation of
the circumstances relating to the alleged crime,” but with only the Index Summary Card in
the record, we have no way to substantiate his recollection.
{¶ 21} Buennagel suggests that the State has the burden to prove that an explanation
of the circumstances was given at the plea hearing. He cites Bowers to establish that a
silent record is inadequate to show that the court considered the circumstances prior to
making a finding of guilt on a no contest plea. This is not a case, however, where we have a
record, but the record is silent. Rather, in this case, no record exists. Under these
circumstances, we must presume the regularity and validity of the trial court’s proceedings,
especially since Buennagel was represented by an attorney in 1983 and his plea was made on
the advice of counsel. See State v. Harden, Montgomery App. No. 23742,
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2010-Ohio-5282.
{¶ 22} We also note that Bowers, even if it were relevant and would control, was
rendered in 1984, after Buennagel was convicted and his appellate rights had terminated.
“‘In considering the issue of the retroactive application of new case law, the Supreme Court
of Ohio has stated that any judicial alteration of a criminal rule of law must be applied to any
case which is still pending in our state court system. However, once a conviction has
become “final” because the defendant can no longer pursue any appellate remedy, any new
case law cannot be applied retroactively even if it would be relevant to the facts of his case.’
” State v. Harrison, Portage App. No. 2004-P-0068, 2005-Ohio-4212, ¶19, citing, in part,
State v. Evans (1972), 32 Ohio St.2d 185, 187; State v. Samuels, Montgomery App. No.
24087, 2011-Ohio-2567, ¶22.
{¶ 23} Although Bowers holds that R.C. 2937.07 confers a substantive right, we see
nothing in Bowers that would permit the case to be applied retroactively, such that it would
invalidate a no contest plea in a completed case, such as Buennagel’s, where no appeal was
pending.
{¶ 24} Finally, we recognize that Buennagel’s application could be construed as a
petition for post-conviction relief, pursuant to R.C. 2953.21. “A post[-]conviction
proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on
the judgment.” State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111. See, also, State v.
Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶48. Buennagel’s conviction predates R.C.
2953.21, but the 1995 version of the statute required defendants who were sentenced prior to
September 1, 1995 (the effective date of the amended statute) and who did not pursue an
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appeal to file a petition within one year of that date.
{¶ 25} The trial court lacks jurisdiction to consider an untimely petition for
post-conviction relief, unless the untimeliness is excused under R.C. 2953.23(A)(1). State
v. West, Clark App. No. 08 CA 102, 2009-Ohio-7057, ¶7. Pursuant to R.C.
2953.23(A)(1)(a), a defendant may file an untimely petition for post-conviction relief (1) if
he was unavoidably prevented from discovering the facts upon which he relies to present his
claim, or (2) if the United States Supreme Court recognizes a new right that applies
retroactively to his situation. Id. “The phrase ‘unavoidably prevented’ means that a
defendant was unaware of those facts and was unable to learn of them through reasonable
diligence.” State v. McDonald, Erie App. No. E-04-009, 2005-Ohio-798, ¶19.
{¶ 26} Buennagel knew or should have known of any errors in the plea hearing,
including the State’s alleged failure to provide an explanation of the circumstances of his
offense, at the time of the hearing. Buennagel was present with counsel at the plea hearing,
and nothing in his motions suggests that he was unavoidably prevented from discovering
what occurred during that hearing.
{¶ 27} Moreover, although Buennagel states that he believed that he would not have
a criminal record upon entering his no contest plea, the Index Summary Card indicates that
he was assessed a fine and court costs and that the court imposed a suspended sentence.
Buennagel should have known and, if he did not, could have learned through reasonable
diligence that a criminal conviction resulted from his no contest plea. Buennagel was not
unavoidably prevented from learning that his no contest plea resulted in a conviction.
Accordingly, even if we construed his applications for a finding of not guilty to be petitions
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for post-conviction relief, they would be untimely and we would lack jurisdiction to consider
them.
{¶ 28} In short, the trial court properly denied Buennagel’s petitions for an order
finding him not guilty on his no contest plea. Buennagel had been found guilty, and there is
no basis for a subsequent finding that Buennagel was not guilty or that his being found guilty
was unlawful.
{¶ 29} The trial court also properly concluded that it could not seal the record of his
conviction. R.C. 2953.36(B) expressly states that R.C. 2953.31 to R.C. 2953.35 (sealing of
records) do not apply to convictions under R.C. 2907.06, the sexual imposition statute.
R.C. 2907.06 is not mentioned on the Index Summary Card, but R.C. 2953.36(B) also
applies to substantially similar municipal ordinances.
{¶ 30} Finally, the trial court properly concluded that Buennagel’s renewed
application did not raise any new issues and was, therefore, barred by res judicata.
{¶ 31} Buennagel’s assignment of error is overruled.
III
{¶ 32} The trial court’s judgments will be affirmed.
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GRADY, P.J. and DONOVAN, J., concur.
Copies mailed to:
Betsy A. Deeds
Paul A. Chiaravalloti
Hon. Beth Root