[Cite as Ashtabula v. Jones,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

CITY OF ASHTABULA, : OPINION

Plaintiff-Appellee, : CASE NO. 2016-A-0053 - vs - :

ROBERT A. JONES, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula Municipal Court, Case No. 2016 CRB 00229.

Judgment: Affirmed.

Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

Robert A. Jones, pro se, 5520 Nathan Avenue, Ashtabula, OH 44004 (Defendant- Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Robert A. Jones, appeals his conviction for Criminal

Trespass in the Ashtabula Municipal Court. The issues before this court are: whether a

court magistrate serving as acting judge may accept a defendant’s no contest plea;

whether the dismissal of a defendant’s pro se motions at the request of appointed

counsel renders a subsequent no contest plea invalid; whether a municipal court is

required to obtain a written waiver of a defendant’s right to a jury trial prior to accepting

a no contest plea in a misdemeanor prosecution; whether a defendant may move to dismiss for violation of his speedy trial rights after executing a written waiver of those

rights; whether a complaint which, on its face, states the essential elements of the crime

charged, cites the appropriate municipal ordinance, and was made under oath properly

invokes the municipal court’s jurisdiction; and whether a defendant receives ineffective

assistance of trial counsel where counsel fails to reassert pro se arguments raised by

the defendant, despite their lack of merit. For the following reasons, the judgment of the

lower court is affirmed.

{¶2} On February 8, 2016, a Complaint · Affidavit · Summons1 was filed in the

Ashtabula Municipal Court, charging Jones with Criminal Trespass, a misdemeanor of

the fourth degree in violation of Ashtabula Codified Ordinance 541.05(a)(1) (“[n]o

person, without privilege to do so, shall * * * [k]nowingly enter or remain on the land or

premises of another”).

{¶3} On February 16, 2016, Jones appeared for arraignment. He entered a

plea of not guilty, requested the appointment of counsel, and executed a written waiver

of his speedy trial rights.

{¶4} On March 28, 2016, Jones filed, pro se, a Written Demand for Discovery,

a Written Demand for Jury Trial, a Motion to Dismiss for Lack of Due Process, a Motion

to Dismiss for Lack of a Speedy Trial, and a Motion to Dismiss for Lack of Subject

Matter Jurisdiction.

{¶5} On April 5, 2016, a pretrial was held. Jones was advised that Attorney

Rebecca Risley had been appointed to represent him and asked how he wished to

proceed. Jones indicated he would accept appointed counsel to represent him.

1. The Complaint · Affidavit · Summons is a single document. The copy issued to Jones serves as the summons whereas the copy filed with the clerk of courts serves as the complaint. It will be variously referred to as the Complaint · Affidavit · Summons or simply the Complaint.

2 Attorney Risley moved the court to strike Jones’ pro se filings. Jones indicated that he

would defer to Attorney Risley’s representation. Jones’ pro se filings were stricken from

the record.

{¶6} On August 23, 2016, Jones tendered a plea of no contest and waived the

presentation of evidence. The municipal court, presided over by Acting Judge David

Sheldon, made a finding of guilty and sentenced Jones to pay a fine of fifty dollars.

{¶7} On September 6, 2016, Jones filed a Notice of Appeal. On appeal, Jones

raises the following assignments of error:

{¶8} “[1.] The court magistrate lacked authority to conduct the plea/sentencing

hearing, and lacked subject-matter jurisdiction to render final judgment in violation of

Criminal Rule 19, Amendments V and XIV of the United States Constitution, and Article

I, § 16 of the Ohio Constitution.”

{¶9} “[2.] Defendant-appellant’s consent to strike his pro se motions from the

record so court-appointed counsel could file the motions was not knowingly made and

was procured through deception, in violation of Amendments V and XIV of the United

States Constitution, and Article I, § 16 of the Ohio Constitution.”

{¶10} “[3.] The municipal court judge committed prejudicial error in denying

defendant-appellant’s written demand for a trial by jury without a written waiver, in

violation of Amendments V and XIV of the United States Constitution, and Article I, § 5

and § 16 of the Ohio Constitution.”

{¶11} “[4.] The municipal court judge committed prejudicial error in denying

defendant-appellant’s motion to dismiss on speedy trial grounds or to revoke his speedy

trial waiver, in violation of Amendments VI and XIV of the United States Constitution,

and Article I, § 10 and § 16 of the Ohio Constitution.”

3 {¶12} “[5.] The municipal court judge committed prejudicial error in denying

defendant-appellant’s motion to dismiss for lack of subject-matter jurisdiction, in

violation of Amendments V and XIV of the United States Constitution, and Article I, § 16

of the Ohio Constitution.”

{¶13} “[6.] Defendant-appellant was constructively denied counsel, in violation of

Amendments V and XIV of the United States Constitution.”

{¶14} Under the first assignment of error, Jones argues that court magistrate,

David Sheldon, lacked the authority to accept his plea and impose sentence because

the case was never referred to a magistrate pursuant to Local Rule 6.

{¶15} Although Sheldon’s position with the Ashtabula Municipal Court is that of

magistrate, at the time of Jones’ plea and sentencing he was functioning as Acting

Judge in the absence of Judge Laura DiGiacomo. By Journal Entry dated August 15,

2016, Judge DiGiacomo “appoint[ed] David Sheldon Acting Judge of said Ashtabula

Municipal Court for the period of August 22, 2016, through August 26, 2016.” See R.C.

1901.121(A)(2)(a) (“[i]f a judge of a municipal court that consists of only one judge is * *

* temporarily absent * * *, the judge may * * * [a]ppoint a substitute * * * [who] shall be

styled ‘acting judge’ and shall temporarily serve on the court during the temporary

absence of the incumbent judge”).

{¶16} Since Sheldon was not acting in his capacity as magistrate at the time of

Jones’ plea and sentencing, referral pursuant to Local Rule 6 was unnecessary.

{¶17} The first assignment of error is without merit.

{¶18} In his second assignment of error, Jones maintains that his consent to

dismiss his pro se motions was procured by deception. “Judge DiGiacomo procured

Mr. Jones’ consent to strike his pro se motions on the basis that it’s his attorney’s job to

4 file those motions, and leading him to believe that Rebecca Risley would actually re-file

them * * *.” Appellant’s brief at 11.

{¶19} Jones further maintains that Judge DiGiacomo and Risley had engaged in

plea negotiations before he was even aware that Risley would be representing him.

“The meeting [between Judge DiGiacomo and Risley] occurred in a closed room down

the hall from the courtroom, and does not appear in the record, as it was not recorded *

* *, but Mr. Jones’ mother, uncle, and grandfather were involved in, and witnesses to,

these discussions.” Appellant’s brief at 10.

{¶20} Assuming, arguendo, that Jones’ dehors-the-record allegations have

merit, there has been no infringement of his constitutional rights. The municipal court

struck Jones’ pro se motions at the April 5, 2016 pretrial. When Jones entered his plea

four months later, he was aware that the motions had not been re-filed and would have

been aware of any negotiations that occurred between Judge DiGiacomo and Risley.

Despite this, Jones voluntarily entered a no contest plea. At that time the court inquired

of Jones: “You’ve had Ms. Risley as your attorney, are you satisfied with her, so far?”

Jones responded: “Yeah.”

{¶21} “Generally, the failure to object waives the error and requires the

aggrieved party to demonstrate prejudice.” State v. Johnson,

,

,

. Similarly, the Ohio Supreme Court has held

that judge participation in plea negotiations does not per se render a plea invalid unless

“the judge’s intervention affected the voluntariness of the defendant’s guilty plea.” State

v. Byrd,

,

(1980).

{¶22} Jones has made no showing of prejudice or that the alleged plea

negotiations influenced his decision to plead no contest.

5 {¶23} The second assignment of error is without merit.

{¶24} In the third assignment of error, Jones argues that the municipal court

erred by accepting his “no contest” plea without first obtaining a written waiver of his

right to a jury trial.

{¶25} “In petty offense cases, where there is a right of jury trial, the defendant

shall be tried by the court unless he demands a jury trial.” Crim.R. 23(A). “[T]he

defendant may waive a trial by jury and be tried by the court without a jury,” however,

the waiver “shall be in writing, signed by the defendant, and filed in said cause and

made a part of the record thereof.” R.C. 2945.05.

{¶26} Having pled not guilty and filed a demand for a jury trial, Jones maintains

the municipal court was required to obtain a written waiver of the same before it could

accept his no contest plea. Lima v. Rambo,

,

(3d

Dist. 1960) (“[w]here a defendant in a criminal case in the Municipal Court has a right to

trial by jury and pleads not guilty and demands a jury trial * * *, such court has no

jurisdiction to proceed to trial without a jury unless such defe[n]dant waives such right to

a trial by jury in the manner provided by Section 2945.05, Revised Code”). We

disagree.

{¶27} The Ohio Supreme Court has held: “The provisions of Section 2945.05,

Revised Code, requiring the filing of a written waiver of a trial by jury are not applicable

where a plea of guilty is entered by an accused. The failure in such an instance to file a

waiver does not deprive an accused of any of his constitutional rights nor does it deprive

the court of its jurisdiction.” Martin v. Maxwell,

,

(1963); State ex rel. Stern v. Mascio,

,

(1996)

6 (“[t]he guilty or no contest plea also effects a waiver of the defendant’s rights to jury

trial”).

{¶28} Accordingly, Ohio appellate courts have often held that a court may accept

a plea of guilty or no contest without obtaining the written waiver mandated by R.C.

2945.05. “[T]he guilty plea itself waives a trial, thereby obviating the need for a written

waiver as contemplated by R.C. 2945.05.” (Citation omitted.) Cleveland Heights v.

Brisbane,

,

¶ 45 (8th Dist.); State v. Rice, 5th Dist. Stark

No. 2013CA00197,

, ¶ 29; Fairfield v. Hamilton, 12th Dist. Butler No.

CA2009-06-171,

, ¶ 6 (“Ohio courts have consistently recognized that

the entry of a plea of guilty by an accused constitutes a waiver of a jury trial and, as a

result, the mandates of R.C. 2945.05 are no longer applicable”); State v. Keiffer, 4th

Dist. Athens No. 97 CA 23,

, 4 (Dec. 8, 1997) (“a trial court’s failure to

obtain a written waiver of a jury demand is not reversible error when the defendant has

pled no contest”); but see State v. Fish,

,

(1st

Dist. 1995) (“once the defendant has properly demanded a jury trial in a petty case, the

court simply cannot proceed to trial, or even to a finding of guilty after a no-contest plea,

without a written jury waiver, signed by the defendant and made part of the record”).

{¶29} The third assignment of error is without merit.

{¶30} In the fourth assignment of error, Jones contends the municipal court

erred “in denying [his] motion to dismiss on speedy trial grounds * * * or revoke his

speedy trial waiver * * * in an attempt to coerce a guilty plea.” Appellant’s brief at 16.

{¶31} “It is well-settled law that an accused may waive his constitutional right to

a speedy trial provided that such a waiver is knowingly and voluntarily made.” State v.

King,

,

(1994). “Following an express, written

7 waiver of unlimited duration by an accused of his right to a speedy trial, the accused is

not entitled to a discharge for delay in bringing him to trial unless the accused files a

formal written objection and demand for trial, following which the state must bring the

accused to trial within a reasonable time.” State v. O’Brien,

,

(1987), paragraph two of the syllabus.

{¶32} Preliminarily, we note that Jones’ pro se Motion to Dismiss for Lack of a

Speedy Trial was withdrawn upon the oral motion of Attorney Risley and with Jones’

consent at the April 5, 2016 pretrial. The Motion was not renewed and the issue was

not raised at the time Jones entered his no contest plea. Compare Montpelier v.

Greeno,

,

(1986) (“a defendant, whose

pretrial motion to dismiss for failure to bring him to trial within the time frame of R.C.

2945.71 was overruled by the trial court, may preserve the speedy trial issue on appeal

by pleading no contest pursuant to a negotiated plea agreement”).

{¶33} At Jones’ February 16, 2016 initial appearance for arraignment, the

municipal court explained:

You have the right to, what’s known as a speedy trial, meaning the

State has so many days in which to try the case. However, if you

wish to see if the case can be resolved before going to trial, you

can sign a waiver of your speedy trial rights and the matter will be

set for pretrial. A pretrial will give you an opportunity for your

attorney or you to meet with the prosecutor in the case and see if it

can be resolved.

{¶34} The municipal court addressed Jones directly and inquired whether he

would “like an immediate trial or * * * a pretrial.” Jones indicated, “pretrial.” Thereupon,

8 the court accepted Jones’ “waiver of speedy trial rights” on the record. Additionally,

Jones signed the following written document:

I fully understand that my request [for a pretrial] may result in an

extension of time beyond that provided for under O.R.C. 2945.71. I

further acknowledge and waive my rights pursuant to O.R.C.

2945.71, 2945.72, and 2945.73, as well as the Federal and State

Constitutional speedy trial provisions.

{¶35} Jones validly waived his speedy trial rights and raised no objection to the

proceedings beyond the forty-five day period provided for in R.C. 2945.71(B)(1).

{¶36} The fourth assignment of error is without merit.

{¶37} In the fifth assignment of error, Jones argues the municipal court lacked

subject-matter jurisdiction.

{¶38} “Municipal courts are created by statute, R.C. 1901.01, and their subject-

matter jurisdiction is also set by statute.” State v. Mbodji,

, 2011-

Ohio-2880,

, ¶ 11. “The municipal court has jurisdiction to hear

misdemeanor cases committed within its territory and has jurisdiction over the violation

of any ordinance of any municipal corporation within its territory * * *.” R.C.

1901.20(A)(1). “In a criminal case or proceeding, the practice, procedure, and mode of

bringing and conducting prosecutions for offenses shall be as provided in the Criminal

Rules * * *.” R.C. 1901.21(A).

{¶39} “A misdemeanor may be prosecuted * * * by complaint * * * in courts

inferior to the court of common pleas.” Crim.R. 7(A); Mbodji at ¶ 12 (“[t]he filing of a

complaint invokes the jurisdiction of the municipal court”). “The complaint is a written

statement of the essential facts constituting the offense charged. It shall also state the

9 numerical designation of the applicable statute or ordinance. It shall be made upon

oath before any person authorized by law to administer oaths.” Crim.R. 3.

{¶40} This court has held that, for a complaint to be valid under Crim.R. 3:

“[f]irst, the complaint must set forth a written statement of the facts that constitute the

essential elements of the offense charged[;] * * * [t]he second requirement is that the

complaint must state the numerical designation of the Revised Code section or

municipal ordinance which the defendant allegedly violated[;] * * * the third requirement

is that the complaint must be made under oath before any person authorized by law to

administer oaths.” State v. Patterson, 11th Dist. Trumbull No. 96-T-5439,

, 3 (May 22, 1998).

{¶41} Jones challenges the Complaint · Affidavit · Summons initiating his

prosecution in several respects.

{¶42} Jones claims the Complaint failed to allege that the offense occurred

within the jurisdiction of the municipal court, since it identified the location of the offense

as “YG.0.8 NS Railroad” in the City of Ashtabula. “By using GPS coordinate of YG.0.8,

rather than an actual, physical address or identifiable location, the citation failed to

allege that the offense occurred within the jurisdiction of the Ashtabula Municipal Court.”

Appellant’s brief at 18. We disagree.

{¶43} The Complaint properly establishes the jurisdiction of the municipal court

by alleging that the offense occurred in the City of Ashtabula. Compare State v. Rode,

11th Dist. Portage No. 2010-P-0015,

, ¶ 20 (citation “alleg[ing] that the

offenses occurred ‘between mm 41/mm 41.4 * * * in the city of Streetsboro in Portage

County, State of Ohio’” subjected the appellant “to both the territorial and subject matter

jurisdiction of the court”). Whether “YG.0.8” is, in fact, within the territorial boundaries of

10 the Ashtabula Municipal Court would be a factual matter to be determined at trial. By

virtue of Jones’ no contest plea in the present case, however, the fact that the offense

occurred within the court’s territory was duly established. Crim.R. 11(B)(2) (“[t]he plea

of no contest * * * is an admission of the truth of the facts alleged in the * * * complaint”);

State v. Hershey-Wokaly, 9th Dist. Lorain No. 05CA008658,

(a

“plea of no contest disposes of this issue; it is an admission of the proper venue”)

(citation omitted).2

{¶44} Jones further claims that the “traffic citation [sic] included the wrong

ordinance number, and [he] wasn’t properly notified of the nature and cause of the

charge.” Appellant’s brief at 20.

{¶45} It is widely acknowleged that “[t]he primary purpose of the charging

instrument in a criminal prosecution is to inform the accused of the nature of the offense

with which he or she is charged.” Akron v. Holland Oil Co.,

, 302-

303,

(9th Dist. 2001). A valid complaint “must contain * * * ‘a written

statement of the essential facts constituting the offense charged[,]’” and “‘may be in the

words of the applicable section of the statute, * * * or in words sufficient to give the

defendant notice of all the elements of the offense with which the defendant is

charged.’” State v. Jones, 11th Dist. Ashtabula No. 2015-A-0068,

, citing Crim.R. 3 and Crim.R. 7(B); State v. Mays,

,

(2d Dist. 1995) (applying Crim.R. 7(B) to complaints in addition to

indictments and informations).

{¶46} Here, the Complaint · Affidavit · Summons charged Jones with violating

Ashtabula Codified Ordinance 541.05(a)(1) (Criminal Trespass), and alleged the

2. On the equivalency of a municipal court’s territorial jurisdiction and venue, see State v. Sunday, 9th Dist. Summit No. 22917,

.

11 following essential facts: that Jones “did knowingly enter or [remain]3 on the property of

the railroad right of way.” Jones notes that the facts properly describe a violation of

Ashtabula Codified Ordinance 553.07(d) (Railroad Vandalism): “No person, without

privilege to do so, shall knowingly enter or remain on the land or premises of a railroad

company.”

{¶47} We find no defect in the charging instrument. The elements of Criminal

Trespass and Railroad Vandalism are virtually identical, except that the latter charge

qualifies “the land or premises of another” as “the land or premises of a railroad

company.”

(“Crim.R. 3 does not require the complaint to track the

language of the statute”). The Railroad Vandalism ordinance even describes a violation

of subsection (d) as “criminal trespass on the land or premises of a railroad company.”

Ashtabula Codified Ordinance 553.07(f). In no way was Jones misled as to the offense

he was charged with or what the essential elements of that offense were.

{¶48} Lastly, Jones claims that the Complaint failed to invoke the municipal

court’s subject matter jurisdiction because it was not made under oath and/or properly

sworn to by the deputy clerk. “The face of the citation [sic] shows that a deputy clerk

acknowledged that the citation was sworn to and subscribed before her on Saturday,

February 6, 2016. Railroad Police Officer Joseph Hergenroeder signed the citation at

the time of issuance, not in the presence of a deputy clerk.” Appellant’s brief at 19.

{¶49} As noted above, Criminal Rule 3 mandates that a complaint “shall be

made upon oath before any person authorized by law to administer oaths.” “[T]he

failure of the complainant to make the complaint under oath before a person authorized

3. The word “remain” is superscribed in the Complaint. Jones asserts that the word does not appear in the Complaint · Affidavit · Summons issued to him, but was added subsequent to its issuance but prior to it being filed in municipal court. The presence, or absence, of the word in the Complaint · Affidavit · Summons is immaterial for present purposes.

12 by law to administer oaths raises a jurisdictional question.” State v. Jones, 7th Dist.

Mahoning No. 11 MA 60,

; Patterson,

, at 3

(“[t]he failure to present a properly sworn affidavit can * * * be a defect that deprives a

trial court of subject-matter jurisdiction”). This court has recognized that the failure to

file a valid complaint is “a jurisdictional defect which cannot be waived by the criminal

defendant.” State v. Davies, 11th Dist. Ashtabula No. 2012-A-0034,

; State v. Bretz, 11th Dist. Portage No. 92-P-0008,

, 1 (Aug. 27,

1993) (cases cited).

{¶50} Jones’ argument rests on a comparison of the Complaint · Affidavit ·

Summons issued to him in lieu of arrest and the Complaint · Affidavit · Summons filed in

the municipal court. The copy issued to Jones contains the signature of Officer

Hergenroeder in the jurat, as well as the date on which it was (or would be) sworn to by

the officer. The filed copy is witnessed by the deputy clerk’s signature, but otherwise

contains the same signature by Officer Hergenroeder as did the summons copy. Jones

contends that the Complaint is not valid since it does not appear to have been signed in

the presence of the deputy clerk.4

{¶51} We disagree. Criminal Rule 3 only requires that the complaint be made

“upon oath” and “before any person authorized by law to administer oaths.” The jurat in

the Complaint · Affidavit · Summons properly attests that the complaint has been “sworn

to and acknowledged,” not signed, before the deputy clerk.

4. We note that a copy of the Complaint · Affidavit · Summons issued to Jones is not properly in the record. A copy was attached to his Motion to Dismiss for Lack of Subject Matter Jurisdiction, but that Motion was stricken from the record by order of the municipal court. A copy was attached to Jones’ appellate brief, but such a copy is not proper evidence and may not be considered by this court. Condron v. Willoughby Hills, 11th Dist. Lake No. 2007-L-015,

(“an appellate court’s review is strictly limited to the record that was before the trial court, no more and no less”) (citation omitted). We nonetheless will consider Jones’ argument assuming that the necessary copy was part of the record.

13 {¶52} As this court has recognized:

Crim.R. 3 does not contain any express reference to the presence

of a jurat in a complaint; instead, as to the “oath” requirement, the

rule only states that the complaint must be made under oath before

a person who has the power to administer the necessary oath. As

a general proposition, a jurat is merely a certificate which is

intended to establish that the oath was duly administered by a duly

authorized individual.

Davies,

.

{¶53} The presence of Officer Hergenroeder’s signature on the copy of the

Complaint · Affidavit · Summons does not in any way suggest that the oath was not duly

administered by the deputy clerk.

{¶54} The fifth assignment of error is without merit.

{¶55} Under the sixth and final assignment of error, Jones argues that he was

deprived of constitutionally effective assistance of counsel before the municipal court.

Jones argues that trial counsel had no interest in discussing the facts of his case with

him and “asked to strike the motions from the record, because it’s her job to file

motions, yet, she had no intention of filing anything, and, on the City’s behalf, rather

than on Mr. Jones’ behalf, sat idly by until Mr. Jones gave up[,] submitted and pleaded

no contest.” Appellant’s brief at 22.

{¶56} To reverse a conviction for ineffective assistance of counsel, the

defendant must prove “(1) that counsel’s performance fell below an objective standard

of reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.”

14 State v. Madrigal,

,

(2000), citing Strickland

v. Washington,

,

,

(1984).

{¶57} Initially, we note that, by pleading no contest, Jones has admitted the truth

of the facts alleged in the complaint and thus cannot prevail on a claim of ineffective

assistance of counsel. “This court has repeatedly held that ‘[a] plea of guilty or no

contest waives any prejudice a defendant suffers arising out of his counsel’s alleged

ineffective assistance, except with respect to a claim that the particular failure alleged

impaired the defendant’s knowing and intelligent waiver of his right to a trial.’” (Citation

omitted.) State v. Bregitzer, 11th Dist. Portage No. 2012-P-0033,

, ¶

17.

{¶58} Even allowing that Jones could demonstrate prejudice, we find no

deficiency in counsel’s performance. Jones has argued the substance of his pro se pre-

trial motions on appeal under the previous assignments of error. As none of these

assignments of error have been found to have merit, counsel’s failure to re-assert them

in the municipal court does not support a claim of ineffective assistance.

{¶59} The sixth assignment of error is without merit.

{¶60} For the foregoing reasons, Jones’ conviction for Criminal Trespass in the

Ashtabula Municipal Court is affirmed. Costs to be taxed against the appellant.

THOMAS R. WRIGHT, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.

15