State v. Wynn

[Cite as State v. Wynn, 2015-Ohio-4646.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150051
C-150052
Plaintiff-Appellee, : TRIAL NOS. 14TRD-45700A
14TRD-45700B
vs. :
O P I N I O N.
DIANE WYNN, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in C-150052; Appeal Dismissed in
C-150051
Date of Judgment Entry on Appeal: November 10, 2015
Paula Boggs Muething, City Solicitor, Heidi S. Rosales, Interim City Prosecutor, and
Ashley Brucato, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} Defendant-appellant Diane Wynn appeals from the trial court’s
judgments against her arising out of a traffic accident that occurred on July 6, 2014.
Wynn was charged with one count of operating a vehicle without reasonable control,
in violation of R.C. 4511.202, and one count of failing to stop after an accident, in
violation of R.C. 4549.02. On both counts, Wynn pleaded no contest. The trial court
accepted her pleas and found her guilty. For the violation of operating a vehicle
without reasonable control, the trial court assessed court costs, but did not impose a
sentence on Wynn. She appealed that judgment in the appeal numbered C-150051.
For the violation of failing to stop after an accident, the trial court imposed a
sentence of 180 days in jail and a three-year license suspension. She appeals that
judgment in the appeal numbered C-150052. Wynn asserts two assignments of error
in the consolidated appeals.
{¶2} In her first assignment of error, Wynn claims that the trial court
erred in failing to set aside her no-contest pleas. In Wynn’s second assignment of
error, Wynn claims the trial court failed to announce the sentence in open court for
each charge of which Wynn was found guilty. We will address these assignments in
reverse order.
{¶3} The second assignment of error concerns only the imposition of
court costs on the failure-to-control charge. The court costs were included on the
trial court’s judge’s sheets, but were not announced in open court. The trial court did
not impose any sentence or fine. Because court costs are not fines and are not
criminal punishment, there was no conviction for the R.C. 4511.202 violation, and,
therefore, no final appealable order. See State v. Bennett, 1st Dist. Hamilton Nos. C-
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OHIO FIRST DISTRICT COURT OF APPEALS
140507 and C-140508, 2015-Ohio-3246, ¶ 6; State v. Threatt, 108 Ohio St. 3d 277,
2006-Ohio-905, 843 N.E.2d 164, ¶ 15. Because we have no jurisdiction in the
absence of a final appealable order, we are compelled to dismiss the appeal
numbered C-150051.
{¶4} In her first assignment of error, Wynn essentially argues that the
trial court should not have accepted her no-contest pleas, because she expressed her
innocence of the charges during the hearing. Because we have dismissed the
appealed numbered C-150051, we will only address Wynn’s no-contest plea for the
failing-to-stop-after-an-accident violation in the appeal numbered C-150052.
{¶5} The record demonstrates that at the hearing, the trial court
explained the significance of a no contest plea—that Wynn was admitting the facts
alleged on the citation as true, but was not admitting guilt—which Wynn
acknowledged that she understood. The trial court further informed Wynn that her
plea could not be used against her in later proceedings and listed the possible
penalties that could be imposed if she was found guilty of the charge. Again, Wynn
expressed that she understood. The trial court subsequently accepted Wynn’s plea of
no contest.
{¶6} The trial court then requested the facts for the record. The
prosecution stated that Wynn had struck two parked cars when she failed to control
her vehicle, and she had then left the scene without providing her information to the
owners of the vehicles. The trial court provided defense counsel the opportunity to
speak in regard to the facts, to which defense counsel responded “comments will be
in mitigation.” With no further comments from the prosecution or the defense, the
trial court found Wynn guilty.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} During mitigation, the trial court inquired whether alcohol was a
factor in Wynn’s decision to leave the scene. In response to the trial court’s question,
Wynn claimed, for the first time to the court, that she was not the driver. A lengthy
exchange between Wynn and the trial court followed, and included statements from
witnesses who were present in court. Subsequent to the exchange, the trial court
imposed a sentence for the failure-to-stop charge.
{¶8} Wynn argues that the trial court did not inquire into her reasons for
entering into a plea of no contest in light of her denials, thus failing to follow the two-
part test set forth in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970). In addition, Wynn argues that even though her plea was accepted prior
to her statement of innocence, the trial court should have set aside the plea during
sentencing as soon as she claimed her innocence. We disagree.
{¶9} Wynn entered a no-contest plea for a violation of R.C. 4549.02, a
first-degree misdemeanor. Crim.R. 11(B) states, “The plea of no contest is not an
admission of defendant's guilt, but is an admission of the truth of the facts alleged in
the indictment, information, or complaint.” An Alford plea, in contrast, is a guilty
plea where the defendant maintains actual innocence of the charges. See State v.
Griggs, 103 Ohio St. 3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 9. Alford does not
apply to the instant situation, because Wynn’s claim of innocence came after her plea
of no contest, the trial court’s acceptance of the plea, and the trial court’s finding of
guilty. Moreover, Wynn pleaded no contest, as opposed to guilty as did the
defendant in Alford.
{¶10} The trial court was required to determine the validity of Wynn’s
plea pursuant to Crim.R. 11(E), which states that the trial court shall not accept a
plea without first informing the defendant of the effect of a no-contest plea. See
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 22. The trial
court did that here, and Wynn answered affirmatively that she understood the plea.
{¶11} Wynn also claims that the trial court should have set aside her no-
contest plea when she asserted her innocence at the sentencing portion of her
hearing. Wynn argues that because her plea and sentencing hearing were only
moments apart, the trial court should have sua sponte set aside her plea upon
hearing her claims of innocence.
{¶12} After a defendant has entered a plea and the plea has been accepted
pursuant to Crim.R. 11, courts are not required to inquire into a defendant’s
reasoning for pleading no contest despite later assertions of innocence. See State v.
Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, ¶ 13; State v. Gales, 131
Ohio App. 3d 56, 60, 721 N.E.2d 497 (7th Dist.1999); State v. Darks, 10th Dist.
Franklin No. 05AP-982, 2006-Ohio-3144, ¶ 18; State v. Damron, 2d Dist.
Champaign No. 2014-CA-15, 2015-Ohio-2057, ¶ 10; State v. Briscoe, 1st Dist.
Hamilton No. C-930909, 1995 Ohio App. LEXIS 909 (Mar. 15, 1995). Crim.R. 32.1
provides a defendant with the opportunity to make a motion to withdraw a plea of no
contest before a sentence is imposed. Wynn could have utilized Crim.R. 32.1 to move
to withdraw her plea, but she did not. The trial court did not err in failing to set
aside Wynn’s no-contest plea. Wynn’s first assignment of error is overruled.
{¶13} In conclusion, we affirm the judgment of the trial court in the
appeal numbered C-150052, as the trial court properly accepted Wynn’s plea of no
contest. We dismiss the appeal numbered C-150051 for lack of a final appealable
order.
Judgment accordingly.
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OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, P.J., and DEWINE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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