State v. Taylor

[Cite as State v. Taylor, 2012-Ohio-5130.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-25
v.
SUSAN M. TAYLOR, OPINION
DEFENDANT-APPELLANT.
Appeal from Fostoria Municipal Court
Trial Court No. TRD1101708
Judgment Reversed and Cause Remanded
Date of Decision: November 5, 2012
APPEARANCES:
Beryl W. Stewart for Appellant
Timothy J. Hoover for Appellee
Case No. 13-12-25
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Susan M. Taylor (“Taylor”), appeals the
judgment of the Fostoria Municipal Court finding her guilty of wrongful
entrustment after she entered a plea of no contest. On appeal, Taylor contends that
the trial court erred in not permitting her to withdraw her no contest plea because
she claims that the trial court failed to properly inform her of her rights pursuant to
Crim.R. 11. For the reasons set forth below, the judgment is reversed and
remanded.
{¶2} Taylor was issued a uniform traffic citation for the wrongful
entrustment of a motor vehicle in violation of R.C. 4511.203, a misdemeanor of
the first degree. The charge stems from an accident that occurred on September 1,
2011, when Taylor’s fifteen-year-old son, who was not a licensed driver, was
driving three friends in the back of Taylor’s pick-up truck. The truck was struck
by a train, causing the death of one of the passengers, and injuring the other two.
{¶3} Taylor originally entered a plea of not guilty, and the case was set for
a bench trial on March 28, 2012. Prior to beginning the proceedings, there was a
discussion between the trial court, Taylor’s attorney, and the prosecutor about
what version of the statute and penalty was applicable. (3/28/2011 Tr. 4-7). The
offense had been committed on September 1, 2011, and R.C. 4511.203 had been
amended effective September 23, 2011. Under the former version of the statute,
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effective September 30, 2008, the offense was a first-degree misdemeanor,
punishable by up to six months in jail and a fine of up to $1,000. Under the
amended statute, the offense is an unclassified misdemeanor, and the offender is to
be sentenced pursuant to R.C. 2929.21 to 2929.28, “except that the offender shall
not be sentenced to a jail term * * *.” R.C. 4511.203(C)(1). A recess was taken
while a discussion was held off the record in chambers. (3/28/2011 Tr. 7)
{¶4} Upon the continuation of the proceedings, Taylor’s attorney requested
a short recess to discuss possible settlement with the prosecutor. Thereafter, the
trial court was informed that Taylor wished to change her plea to “no contest.”
(Id.)
{¶5} Prior to accepting the change of plea, the trial court inquired to
ascertain whether Taylor understood that the offense was a misdemeanor of the
first degree, as specified by the statute that was in effect on September 1st.
(3/28/12 Tr. 8-9) The trial court confirmed that Taylor understood that by entering
a plea of no contest, she could be found guilty of the offense and sentenced to up
to six months in jail and/or a fine of up to $1,000. (Id.) The trial court also
confirmed that Taylor’s prior request for a jury had been withdrawn. (Id.)
{¶6} Taylor’s attorney then entered a plea of no contest on her behalf and
the trial court made a finding of guilty. The trial court ordered a presentence
report and scheduled the sentencing hearing for May 8, 2012.
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{¶7} On April 27, 2012, Taylor filed a presentence motion to withdraw her
no contest plea pursuant to Crim.R. 32.1, and also submitted a trial brief. The
motion stated that Taylor was distraught when she learned that “the charge now is
a 1st [degree] misdemeanor” and subject to a possible six months in jail. (Doc. 25,
¶ 4) Taylor was concerned as to who would take care of her children if she was
sentenced to jail, and decided to enter a plea of no contest, hoping that the trial
court would not sentence her to jail. After having more time to think about the
matter and discuss it further with her attorney, she now believed that the facts and
the law would result in a finding of not guilty if a trial was held.
{¶8} On the date of the previously scheduled sentencing hearing, the trial
court held a hearing on the motion to withdraw the plea. Taylor stated that she
wished to withdraw her plea because, at the time of the hearing, she was stressed
and worried about her children and was not thinking clearly. (5/8/2012 Tr. 2-3)
Her attorney also argued that new facts and research had also led him to believe
that she would be found innocent of the offense because her son’s actions had
exceeded the scope of the permission that Taylor had given him, specifically, to
drive only on their property. The State opposed the motion to withdraw and
argued that a change of heart or a mistaken belief about a guilty plea did not
constitute a basis for the withdrawal of a plea.
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{¶9} The trial court denied Taylor’s motion to withdraw her plea, finding
that her reason was a “mere change of heart,” which was insufficient grounds to
warrant a vacation of her plea. (May 8, 2012 J.E.) The trial court determined that
Taylor was satisfied with the representation of her defense counsel; that she had
been thoroughly informed as to the possible penalties associated with her plea;
and, that she had knowingly, intelligently, and voluntarily understood her plea and
the consequences of the plea. (Id.)
{¶10} On May 15, 2012 a sentencing hearing was held, and “[b]ased upon
the nature of the case, defendant’s history and the circumstances,” the trial court
sentenced Taylor to serve 180 days, with 90 days to be served at the Seneca
County jail; 60 days through Electronic Home Monitoring (if eligible); and 30
days suspended on the condition that Taylor complete an alcohol assessment and
treatment program, that she complete a parenting program, and that she submit to
random alcohol/drug screens as ordered by probation. (May 15, 2012 J.E.)1
Taylor was placed on three years’ probation and ordered to pay all costs, but no
fine was imposed.
{¶11} Taylor filed a motion to stay sentence pending appeal, which was
granted by the trial court. Taylor now appeals her conviction, raising the
following assignment of error for our review.
1
No transcript of the sentencing hearing was provided.
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Assignment of Error
The trial court erred in failing to advise [Taylor] of any of her
rights, i.e., the right to see the witnesses against her, her right to
have the witnesses cross-examined at trial, that she also had the
right not to be required to testify at trial unless she desired to do
so, and that the State cannot comment on her failure to testify as
required by Ohio Crim.R. 11(E).
{¶12} In her sole assignment of error, Taylor submits that the trial court
erred in denying her motion to withdraw her plea of no contest. Taylor asserts that
the trial court failed to conduct a proper Crim.R. 11 colloquy to inform her of her
rights prior to accepting her plea.
{¶13} Crim.R. 32.1 states that: “A motion to withdraw a plea of guilty or
no contest may be made only before sentence is imposed; but to correct manifest
injustice the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw his or her plea.” Although the rule does not
articulate a standard to be used when considering a presentence motion, as the
motion in this case was, it has long been held that a presentence motion to
withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62
Ohio St.3d 521 (1992). However, this does not mean that a motion to withdraw a
guilty plea will be granted automatically. State v. Drake, 73 Ohio App.3d 640, 645
(8th Dist.1991). Appellate review of a trial court’s denial of a motion to withdraw
guilty pleas pursuant to Crim.R. 32.1 is for an abuse of discretion. State v.
Nathan, 99 Ohio App.3d 722, 725 (3d Dist.1995).
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{¶14} On appeal, Taylor complains that she should be allowed to withdraw
her no contest plea because the trial court failed to inform her of her constitutional
rights during the plea colloquy. Crim.R. 11 distinguishes between what is
required before accepting a plea of guilty and no contest in felony cases as
compared to misdemeanor cases, such as Taylor’s. See State v. Jones, 116 Ohio
St.3d 211, 2007-Ohio-6093; compare Crim.R. 11(C) with Crim.R. 11(D) and (E).
While the elements that must be included in a plea colloquy for a misdemeanor are
less than what is required for a felony, the trial court must still inform the
defendant of the effect of the specific plea being entered and it must inform the
defendant of the appropriate language under Crim.R. 11(B). Jones at paragraphs
one and two of the syllabus. A failure to comply with providing information
concerning non-constitutional rights, such as the information required in Crim.R.
11(B), will not invalidate a plea unless the defendant suffered prejudice. Jones at
¶ 52, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12.
{¶15} Our review of the record demonstrates that the trial court failed to
properly advise Taylor of the effects of her plea, although not for the reasons
discussed by either Taylor or the State. The trial court was mistaken when it
informed Taylor that she should be sentenced under the prior version of the statute
that provided for up to a six-month jail sentence. Taylor should have been
permitted to withdraw her plea, because she was given the wrong information
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concerning her sentence. Furthermore, the sentence must be vacated because it is
contrary to law. See R.C. 2953.08(A)(4).
{¶16} Generally, the amendment or enactment of a statute will apply
prospectively, and will not affect the prior operation of the statute or “[a]ffect any
violation thereof or penalty, forfeiture, or punishment incurred in respect thereto,
prior to the amendment or repeal.” R.C. 1.58(A); State v. Riegel, 3d Dist. Nos. 14-
11-27, 14-11-28, 2012-Ohio-4517, ¶ 16. However, there is an exception to this
proposition stated in R.C. 1.58(A) when the provision set forth in Section (B) is
applicable. R.C. 1.58(B) states:
If the penalty, forfeiture, or punishment for any offense is reduced
by a reenactment or amendment of a statute, the penalty, forfeiture,
or punishment, if not already imposed, shall be imposed according to
the statute as amended.
{¶17} In this case, the offense in the statute remains the same. However,
the amendment reduces the potential punishment by stating that a violation is now
an unclassified misdemeanor, not a misdemeanor of the first degree,2 and that the
offender is not subject to a jail sentence.
(C) Whoever violates this section is guilty of wrongful entrustment
of a motor vehicle and shall be punished as provided in divisions (C)
to (H) of this section.
(1) Except as provided in division (C)(2) of this section, whoever
violates division (A)(1), (2), or (3) of this section is guilty of an
2
R.C. 4511.203(C)(2) does specify certain circumstances, such as multiple repeat offenses, wherein the
offense remains a first degree misdemeanor. However, the record does not indicate that Taylor was subject
to any of those provisions.
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unclassified misdemeanor. When the offense is an unclassified
misdemeanor, the offender shall be sentenced pursuant to sections
2929.21 to 2929.28 of the Revised Code, except that the offender
shall not be sentenced to a jail term; the offender shall not be
sentenced to a community residential sanction pursuant to section
2929.26 of the Revised Code; notwithstanding division (A)(2)(a) of
section 2929.28 of the Revised Code, the offender may be fined up
to one thousand dollars; * * *.
(Emphasis added.) R.C. 4511.203.
{¶18} Because the earlier version of the statute provided for the imposition
of up to a six-month jail sentence, the punishment was reduced by the amendment
of the statute. Both the acceptance of her plea and the sentencing occurred after
the effective date of the amendment. Therefore, Taylor should have been
sentenced subject to the lesser sentence imposed by the amended statute, pursuant
to the requirements of R.C. 1.58(B). Appellant’s assignment of error is sustained.
{¶19} Having found error prejudicial to the Appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW, P.J. and PRESTON, J., concur.
/jlr
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