Solon v. Bollin-Booth

[Cite as Solon v. Bollin-Booth, 2012-Ohio-815.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97099
CITY OF SOLON
PLAINTIFF-APPELLEE
vs.
ERIK BOLLIN-BOOTH
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Bedford Municipal Court
Case No. 10 CRB 00818
BEFORE: Keough, J., Celebrezze, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: March 8, 2012
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEY FOR APPELLEE
Lon D. Stolarsky
5333 Northfield Road
Suite 250
Bedford Heights, OH 44146
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Erik Bollin-Booth, appeals from the trial court’s
judgment denying his motion to vacate his plea. For the reasons stated below, we reverse
and remand.
I. Facts and Procedural History
{¶2} Bollin-Booth was arrested on June 9, 2010 and charged with domestic
violence in violation of R.C. 2919.25(A), a first degree misdemeanor. The trial court
found that he was indigent and appointed an attorney to represent him.
{¶3} The App.R. 9(C) statement of evidence prepared by the trial court reflects that
several pretrials occurred. During these pretrials, Bollin-Booth presumably worked out an
agreement with the prosecutor to plead no contest to an amended charge, because on
August 9, 2010, Bollin-Booth appeared with counsel before a magistrate and signed a
document captioned “Pretrial Agreement Form.” The form provided that the first degree
domestic violence charge was amended to domestic violence in violation of R.C.
2919.25(C), a fourth degree misdemeanor. The form indicated that the trial court found
Bollin-Booth guilty of the amended charge and sentenced him to 90 days in jail, 1
suspended, plus a fine of $250 ($100 suspended) and court costs. The form also indicated
that Bollin-Booth was placed on one year of active probation with various conditions.
The form was signed by the prosecutor, Bollin-Booth’s counsel, the magistrate, and the
The City conceded at oral argument that this sentence was incorrect because the maximum jail
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sentence for a fourth degree misdemeanor is 30 days. R.C. 2929.24.
judge. Bollin-Booth signed the back of the form to indicate his understanding that the
fine and court costs were to be paid by cash, check, or credit card at the time of sentencing.
{¶4} There was no reference on the form indicating that Bollin-Booth’s no contest
plea was made knowingly, voluntarily, and intelligently, nor was there any statement
advising Bollin-Booth pursuant to Crim.R. 11 of the effect of his plea.
{¶5} Bollin-Booth did not appeal his conviction and sentence. Nearly one year
later, he filed a motion to withdraw his plea. The trial court denied his motion and
Bollin-Booth now appeals from the trial court’s judgment.
II. Appellant’s Appeal is Not Moot
{¶6} “At common law, courts considered appeals in criminal cases to be moot if the
appellant had completed the sentence prior to a ruling on the appeal on the basis that if a
sentence had been served, a favorable judgment could not ‘operate to undo what has been
done or restore to petitioner the penalty of the term of imprisonment which he has
served.’” Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278,
¶ 17, quoting St. Pierre v. United States, 319 U.S. 41, 42-43, 63 S.Ct. 910, 87 L.E. 1199(1943).2
{¶7} In accord with that rule, the Ohio Supreme Court has held that:
where a criminal defendant, convicted of a misdemeanor, voluntarily
satisfied the judgment imposed upon him or her for that offense, an appeal
A court has no jurisdiction to decide moot cases because there is no subject matter upon which
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the court’s decision could operate.
from the conviction is moot unless the defendant has offered evidence from
which an inference can be drawn that he or she will suffer some collateral
legal disability or loss of civil rights stemming from that conviction. State
v. Golston, 71 Ohio St.3d 224, 226, 643 N.E.2d 109 (1994), citing State v.
Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), and State v. Berndt, 29
Ohio St.3d 3, 504 N.E.2d 712 (1987). See also In re S.J.K., 114 Ohio St.3d
23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 9, citing Wilson at the syllabus.
{¶8} The trial court’s App.R. 9(C) statement, filed with this court on September 16,
2011, states that “[d]efendant paid his fine, court costs[,] and fully satisfied his sentence.”
The trial court sentenced Bollin-Booth on August 9, 2010. The record reflects that
Bollin-Booth paid the fine and court costs the same day. Bollin-Booth’s one year of active
probation was completed on August 8, 2011, shortly after his appeal of the trial court’s
judgment denying his motion to withdraw his plea was filed on July 26, 2011.
{¶9} In Lewis, the Supreme Court of Ohio considered what it means to
“voluntarily” complete a sentence for purposes of the mootness doctrine and held that:
the completion of a sentence is not voluntary and will not moot an appeal if
the circumstances surrounding it demonstrate that the appellant neither
acquiesced in the judgment nor abandoned the right to appellate review, that
the appellant has a substantial stake in the judgment of conviction, and that
there is subject matter for the appellate court to decide. Id. at ¶ 26.
{¶10} Here, it is apparent that Bollin-Booth voluntarily completed his sentence in
this case. He paid his fine the day it was imposed, and never filed a direct appeal of his
conviction and sentence nor asked for a stay of execution of sentence in either the trial
court or this court.
{¶11} Nevertheless, on this record, we can infer a collateral consequence arising
from Bollin-Booth’s domestic violence conviction. See Cleveland Hts. v. Lewis, 187 Ohio
App.3d 786, 2010-Ohio-2208, 933 N.E.2d 1146, ¶ 11 (8th Dist.). A collateral disability is
an adverse legal consequence of a conviction or judgment that survives despite the court’s
sentence having been satisfied or served. In re S.J.K., 114 Ohio St.3d 23,
2007-Ohio-2621, 867 N.E.2d 408, at ¶ 10. Here, Bollin-Booth’s misdemeanor domestic
violence conviction can be used to enhance the severity of any later criminal charge of
domestic violence. See R.C. 2919.25(D)(3). In addition, as recognized in Lewis, 129
Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278 (Lanzinger, J., concurring), at ¶ 29-34,
there are numerous other “real and significant” collateral consequences of any
misdemeanor conviction. Accordingly, we find that Bollin-Booth’s appeal is not moot.
III. Motion to Vacate Plea
{¶12} Bollin-Booth contends that the trial court abused its discretion in denying his
postsentence motion to vacate his plea. Crim.R. 32.1 provides that “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.” This standard permits a defendant to
withdraw his plea only in extraordinary cases. State v. Alford, 8th Dist. No. 93911,
2010-Ohio-4130, 2010 WL 3442398, ¶ 11, citing State v. Smith, 49 Ohio St.2d 261, 264,
361 N.E.2d 1324 (1977). We review a trial court’s denial of a postsentence motion to
withdraw a plea under an abuse of discretion standard. Id.{¶13} Bollin-Booth argues that he should have been allowed to withdraw his plea
because the trial court did not conduct a Crim.R. 11 colloquy in open court before
accepting his plea, and his plea was “done only with pieces of paper.” Bollin-Booth
contends that before accepting his no contest plea, the trial court was required to engage in
a colloquy with him in open court and advise him of the constitutional rights he was
waiving, just as the court must do with a felony defendant.
{¶14} Crim.R. 2(D) defines a “petty offense” as “a misdemeanor other than [a]
serious offense.” A “serious offense” is defined in Crim.R. 2(C) as “any felony, and any
misdemeanor for which the penalty prescribed by law includes confinement for more than
six months.” Bollin-Booth pled no contest to a fourth degree domestic violence
charge carrying a maximum jail term of less than six months; therefore, it was a petty
offense. R.C. 2929.24(A)(4).
{¶15} Pleas in petty offense cases are governed by Crim.R. 11(E), which states: “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.” Crim.R. 11(E).
{¶16} In State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, the
Supreme Court of Ohio was asked to “clarify the trial judge’s duties under Crim.R. 11
when accepting a plea in a misdemeanor case involving a petty offense.” Id. at ¶ 1. The
court held that “[i]n accepting a plea to a misdemeanor involving a petty offense, a trial
court is required to inform the defendant only of the effect of the specific plea being
entered.” Id. at paragraph one of the syllabus. A trial court may do so either “orally or in
writing.” Id. at ¶ 51.
{¶17} Crim.R. 11(B)(2), regarding the effect of a no contest plea, provides that “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, and the plea or admission
shall not be used against the defendant in any subsequent civil or criminal proceeding.”
Thus, the trial court in this case was required to advise Bollin-Booth, either orally or in
writing, prior to accepting his no contest plea, of the language contained in Crim.R.
11(B)(2). Id. at ¶ 23.
{¶18} In light of our discussion, Bollin-Booth’s assertion that the trial court was
required to engage in a colloquy and advise him in open court of the constitutional rights
he was waiving by entering his no contest plea is without merit. A Crim.R. 11(B)(2)
advisement in writing would have been adequate.
{¶19} To determine whether the trial court in this case complied with the
requirements of Crim.R. 11(B)(2), we look to the record. Normally, a reviewing court
reviews the transcript of the plea hearing to determine compliance with Crim.R. 11. But
under Crim.R. 22, proceedings in a petty offense case need not be recorded unless
recording is requested by a party to the proceeding. N. Randall v. Withrow, 8th Dist. No.
94574, 2011-Ohio-1675, 2011 WL 1326107, ¶ 16, citing State v. Gaetano, 44 Ohio
App.2d 233, 337 N.E.2d 664 (7th Dist.1974). Because this case involved a petty offense,
there was no requirement that a transcript of the proceedings be made.
{¶20} From the record, it appears that the magistrate accepted Bollin-Booth’s no
contest plea. Crim.R. 19 authorizes magistrates to accept and enter no contest pleas in
misdemeanor cases, provided the requirements of Crim.R. 11 are met. “In such instances,
any subsequent action by the trial court on [the defendant’s] plea is not subject to Crim.R.
11 scrutiny.” Withrow at ¶ 17. Accordingly, we must determine whether the magistrate
complied with the requirements of Crim.R. 11(E) and 11(B)(2).
{¶21} Since no transcript of the proceedings exists, we look to the “Plea Agreement
Form” signed by Bollin-Booth, his counsel, and the magistrate to determine if he was
advised of the effect of the plea.3 The form contains no Crim.R. 11 advisements. There
is nothing on the form explaining a no contest plea, nor is there any other information
related to the requirements of Crim.R. 11(E) or 11(B)(2). Accordingly, we must conclude
that the “Plea Agreement Form” does not establish that Bollin-Booth was advised of the
effect of his plea as required by Crim.R. 11.
{¶22} Paragraph 11 of the trial court’s App.R. 9(C) statement states that “[o]n
August 9, 2010, the trial court issued the following entry: “Deft. Present with counsel; all
rights pursuant to Crim.Rule 11 D&E explained.’” The City argues that this statement
indicates that the proper advisement was given. But the magistrate was required to advise
Bollin-Booth of the effect of his plea under Crim.R. 11(B)(2), not Crim.R. 11(D) or (E).
Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at ¶ 23. Further, we find
no such entry in the record.
{¶23} As this court noted in Withrow, an appellant has the burden of providing the
Paragraph 12 of the trial court’s App.R. 9(C) statement of the evidence asserts that
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Bollin-Booth “was provided with a change of plea form and a waiver of rights form by the court on
August 9, 2010.” There are no such forms in the record. The only form in the record is the “Pretrial
Agreement Form” that was signed by Bollin-Booth’s counsel, the prosecutor, the magistrate, and the
judge on August 9, 2010.
reviewing court with a complete record, and a court will generally presume regularity in a
trial court’s actions in the absence of a transcript for review. Withrow, 8th Dist. No.
94574, 2011-Ohio-1675, 2011 WL 1326107, at ¶ 19. However, in this instance,
Bollin-Booth could not provide a transcript because one does not exist; as stated in the
trial court’s App.R. 9(C) statement of evidence, “[a]t no time was there a Crim.R. 11
hearing or colloquy on the record.” Therefore, “we cannot presume regularity where the
court failed to create a record capable of review and then blame that failure on the
appellant.” Id.{¶24} We find that the only record regarding Bollin-Booth’s plea was the “Pretrial
Agreement Form,” and that form was not in compliance with Crim.R. 11. Accordingly,
we hold that the trial court did not provide Bollin-Booth with an explanation of the effect
of his no contest plea as required by Crim.R. 11.4
{¶25} The city argues that even if the trial court failed to inform Bollin-Booth of
the effect of his no contest plea, Bollin-Booth must demonstrate that he was prejudiced by
the trial court’s failure to comply with Crim.R. 11. This court addressed this issue in
Parma v. Buckwald, 8th Dist. Nos. 92354 and 92356, 2009-Ohio-4032, 2009 WL
2462626, ¶ 43-45,where we stated:
[I]n Jones, although the Ohio Supreme Court acknowledged that the trial
court committed clear error, the court also concluded the error did not
involve a constitutional right. For that reason, the error was not reversible
without a showing of prejudice. Prejudice, in this context, means that the
This court considered the same form in Withrow, also with respect to a no contest plea, and
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reached the same result.
plea would not otherwise have been made but for the trial court error. Jones
did not allege any prejudice from the trial court’s failure to tell him that a
plea amounts to a complete admission of guilt, and he never claimed that he
was innocent. Thus, the Supreme Court determined that he was not
prejudiced by the trial court’s failure to comply with Crim.R. 11(B)(1) * * *.
More recently, however, in State v. Clark, 119 Ohio St.3d 239, 893 N.E.2d
462, 2008-Ohio-3748, the Ohio Supreme Court explained:
“When the trial judge does not substantially comply with Crim.R. 11 in
regard to a nonconstitutional right, reviewing courts must determine whether
the trial court partially complied or failed to comply with the rule. If the
trial judge partially complied, e.g., by mentioning mandatory postrelease
control without explaining it, the plea may be vacated only if the defendant
demonstrates a prejudicial effect. * * * The test for prejudice is ‘whether
the plea would have otherwise been made.’ * * * If the trial judge
completely failed to comply with the rule, e.g., by not informing the
defendant of a mandatory period of postrelease control, the plea must be
vacated. * * * ‘A complete failure to comply with the rule does not
implicate an analysis of prejudice.’ (Internal citations omitted.) Clark at ¶
32.”
{¶26} Here, there was “a complete failure to comply with the rule.” The trial court
did not provide Bollin-Booth with any explanation of the effect of his plea under Crim.R.
11(B)(2) and, therefore, a prejudice analysis is not necessary.
{¶27} Bollin-Booth’s assignment of error is sustained and his plea is vacated. We
reverse the judgment of the trial court and remand for further proceedings consistent with
this opinion.
{¶28} Reversed and remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
KATHLEEN ANN KEOUGH, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR