[Cite as State v. Robinson,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : TERESA ROBINSON : Case No. 2013CA00244 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court, Criminal Division, Case No. 2013CRB01824

JUDGMENT: Affirmed in Part, Reversed and Remanded in Part

DATE OF JUDGMENT: August 18, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANTHONY LAPENNA EDWARD M. HEINDEL Assistant Prosecuting Attorney 450 Standard Building 2 James Duncan Plaza #1 1370 Ontario Street Massillon, OH 44646 Cleveland, OH 44113 Stark County, Case No. 2013CA00244 2

Baldwin, J.

{¶1} Defendant-appellant Teresa Robinson appeals her conviction and

sentence from the Massillon Municipal Court. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On August 9, 2013, a complaint was filed in the Massillon Municipal Court

alleging that appellant had committed the offense of menacing by stalking in violation of

R.C. 2903.211(A), a misdemeanor of the first degree. At her arraignment on August 13,

2013, appellant entered a plea of not guilty to the charge.

{¶3} Subsequently, on October 23, 2013, appellant withdrew her former not

guilty plea and entered a no contest plea. The trial court found appellant guilty of the

charge. As memorialized in a Journal Entry filed on November 27, 2013, appellant was

fined $500.00 and ordered to serve 180 days in jail. Of the 180 days, all except 10 days

were suspended. In addition, appellant was ordered to complete 100 hours of

community service work, was placed on probation for a period of five years and was

ordered to pay restitution in the amount of $1,600.00.

{¶4} Appellant now raises the following assignments of error on appeal:

{¶5} THE TRIAL COURT ERRED WHEN IT DID NOT COMPLY WITH

CRIMINAL RULE 11(E) BEFORE ACCEPTING ROBINSON’S NO CONTEST PLEA.

{¶6} THE TRIAL COURT ERRED WHEN IT DID NOT PROVIDE ROBINSON

HER RIGHT OF ALLOCUTION AT SENTENCING IN ACCORDANCE WITH CRIMINAL

RULE 32. Stark County, Case No. 2013CA00244 3

I

{¶7} Appellant, in her first assignment of error, argues that the trial court erred

when it failed to comply with Crim.R. 11(E) before accepting her no contest plea.

{¶8} Crim. R.11 governs pleas and a defendant's rights upon entering a plea as

follows:

{¶9} “(A) Pleas

{¶10} “A defendant may plead not guilty, not guilty by reason of insanity, guilty

or, with the consent of the court, no contest. A plea of not guilty by reason of insanity

shall be made in writing by either the defendant or the defendant's attorney. All other

pleas may be made orally. The pleas of not guilty and not guilty by reason of insanity

may be joined. If a defendant refuses to plead, the court shall enter a plea of not guilty

on behalf of the defendant.

{¶11} “***

{¶12} “(D) Misdemeanor cases involving serious offenses

{¶13} “In misdemeanor cases involving serious offenses the court may refuse to

accept a plea of guilty or no contest, and shall not accept such plea without first

addressing the defendant personally and informing the defendant of the effect of the

pleas of guilty, no contest, and not guilty and determining that the defendant is making

the plea voluntarily. Where the defendant is unrepresented by counsel the court shall

not accept a plea of guilty or no contest unless the defendant, after being readvised that

he or she has the right to be represented by retained counsel, or pursuant to Crim.R. 44

by appointed counsel, waives this right.

{¶14} “(E) Misdemeanor cases involving petty offenses Stark County, Case No. 2013CA00244 4

{¶15} “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 (B) states, in relevant part, as follows: “Effect of guilty or no contest pleas

“With reference to the offense or offenses to which the plea is entered:…

“ (2) 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….”

{¶16} Crim.R. 2(D) defines a “petty offense” as: “a misdemeanor other than a

serious offense.” “Serious offense” is defined as “any felony, and any misdemeanor for

which the penalty prescribed by law includes confinement for more than six months.”

Crim.R. 2(C).

{¶17} “In State v. Jones,

,

,

,

* * *, 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 cases 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.’

at paragraph one of the syllabus. * * * In

order to satisfy this requirement, the trial court ‘must inform the defendant of the

appropriate language under Crim.R. 11(B).’

at paragraph two of the syllabus.” State

v. Parish, 11th Trumbull Dist. No.2010–T–0105, 2011–Ohio–3751, ¶ 8. Stark County, Case No. 2013CA00244 5

{¶18} The offense of menacing by stalking as charged against appellant is a first

degree misdemeanor for which the penalty prescribed by law does not include

confinement for more than six months. Thus, the trial court was required to follow the

procedure set forth in Crim.R. 11(E).

{¶19} In the case sub judice, the trial court did not recite the language from

Crim.R. 11(B) to explain the effect of the plea. We find, however, that this error is

harmless. Because the rights contained in Crim.R. 11(B) and 11(E) are

nonconstitutional; appellant must show that she suffered some prejudice from the

court's omission. Jones at ¶ 52. The test for prejudice is “whether the plea would have

otherwise been made.” State v. Griggs,

, 2004–Ohio–4415,

, ¶ 12, citing State v. Nero,

,

(1990). A

defendant who has entered a guilty or no contest plea without asserting actual

innocence is presumed to understand the effect of the plea, and the court's failure to

inform the defendant of the effect of the plea as required by Crim.R. 11 is presumed not

to be prejudicial. See Griggs at syllabus.

{¶20} We note that appellant does not argue that she was prejudiced by the trial

court's failure to advise her of the effect of her no contest plea. Moreover, there is no

evidence of prejudice apparent on the record. Appellant, who was represented by

counsel, never asserted her innocence or indicated that she was unaware that her plea

would constitute an admission of the truth of the facts alleged. At the plea hearing,

appellant admitted that she wanted to plead no contest. Therefore, under the totality of

the circumstances; we find no prejudice resulting from the court's failure to explain the

effect of the plea as defined in Crim.R. 11(B). Stark County, Case No. 2013CA00244 6

{¶21} Appellant’s first assignment of error is, therefore overruled.

II

{¶22} Appellant, in her second assignment of error, argues that the trial court

erred in denying her right to allocution pursuant to Crim.R. 32.

{¶23} Crim. R. 32 addresses the trial court's duty upon imposition of sentence.

The rule provides, in relevant part, as follows:

{¶24} “(A) Imposition of sentence. Sentence shall be imposed without

unnecessary delay. Pending sentence, the court may commit the defendant or continue

or alter the bail. At the time of imposing sentence, the court shall do all of the following:

{¶25} “(1) Afford counsel an opportunity to speak on behalf of the defendant and

address the defendant personally and ask if he or she wishes to make a statement in

his or her own behalf or present any information in mitigation of punishment….”

{¶26} In the case sub judice, the trial court did not personally address appellant

and ask her if she wanted to make a statement on her own behalf. As noted by this

Court in State v. Letcher, 5th Dist. Stark No. 2010–CA–205,

, “the

appropriate measure to take is to remand the case for a resentencing in order to give

the defendant the opportunity to speak prior to being sentenced. ‘In a case in which the

trial court has imposed sentence without first asking the defendant whether he or she

wishes to exercise the right of allocution* * * resentencing is required* * *.’ State v.

Campbell,

, 2000–Ohio–183

.” Id at paragraph

19.

{¶27} Appellant’s second assignment of error is, therefore, sustained. Stark County, Case No. 2013CA00244 7

{¶28} Accordingly, the judgment of the Massillon Municipal Court is affirmed in

part and reversed and remanded in part, for purposes of resentencing pursuant to Crim.

R. 32(A).

By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.