[Cite as State v. Brown,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 19CA011588

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ASHLEY BROWN LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO Appellant CASE No. 2019CRB01249

DECISION AND JOURNAL ENTRY

Dated: September 30, 2021

TEODOSIO, Judge.

{¶1} Appellant, Ashley Brown, appeals from her conviction for aggravated menacing

in the Lorain Municipal Court. This Court reverses and remands.

I.

{¶2} Ms. Brown was charged with misdemeanor aggravated menacing, in violation of

R.C. 2903.21(A). After a plea hearing, the trial court filed a journal entry stating that Ms. Brown

pled no contest and that the court accepted the plea and found her guilty. The court sentenced

her to a $150.00 fine and 180 days in jail, but suspended the fine as well as 150 days of the jail

sentence. The court ordered the remaining 30 days to be served concurrently with her sentence

in a separate, child endangering case. The court placed her on intensive supervised probation for

2 years.

{¶3} Ms. Brown now appeals from her conviction and raises one assignment of error

for this Court’s review. 2

II.

ASSIGNMENT OF ERROR

MS. BROWN WAS PREJUDICED AND DENIED DUE PROCESS WHEN THE TRIAL COURT FAILED TO FULLY INFORM HER OF HER CONSTITUTIONAL RIGHT TO TRIAL AND THE EFFECT OF HER NO CONTEST PLEA.

{¶4} In her sole assignment of error, Ms. Brown argues that the trial court failed to

advise her of her constitutional right to a trial and the effect of her no contest plea. We agree that

the court erred in failing to inform her of the effect of her plea.

{¶5} “A plea is invalid where it has not been entered in a knowing, intelligent, and

voluntary manner.” State v. Farnsworth, 9th Dist. Medina No. 15CA0038-M,

. “A trial court’s obligations in accepting a plea depend upon the level of offense to which the

defendant is pleading.” State v. Smith, 9th Dist. Medina No. 14CA0122-M,

. “If a misdemeanor case involves a serious offense, the court must address the defendant

personally, inform her of the effect of her plea, determine that she is making the plea voluntarily,

and, if she is unrepresented, address her right to counsel.” Twinsburg v. Milano, 9th Dist.

Summit No. 28674,

, citing Crim.R. 11(D). If a misdemeanor case involves

a petty offense, the plain language of Crim.R. 11(E) only requires the court to inform the

defendant of the effect of the plea.

A misdemeanor is a “serious offense” if “the penalty

prescribed by law includes confinement for more than six months.” Crim.R. 2(C). Any other

misdemeanor is a “petty offense.” See Crim.R. 2(D).

{¶6} Ms. Brown was charged with aggravated menacing, a misdemeanor of the first

degree. See R.C. 2903.21(A)-(B). Pursuant to R.C. 2929.24(A)(1), the maximum jail sentence

for misdemeanors of the first degree is 180 days. Consequently, Ms. Brown’s aggravated

menacing charge was a petty offense. 3

{¶7} To begin with, we find no merit in Ms. Brown’s argument that the trial court

failed to inform her of her right to a jury trial. Because she was only pleading no contest to a

petty offense, the trial court was not required to inform her of all the constitutional protections

she would waive upon entering her plea. See Smith at ¶ 8, citing State v. Watkins,

,

, ¶ 28.

{¶8} Instead, the trial court was only required to inform Ms. Brown of the effect of her

no contest plea. See Milano at ¶ 8; Crim.R. 11(E). “[T]o satisfy the requirement of informing a

defendant of the effect of a plea, a trial court must inform the defendant of the appropriate

language under Crim.R. 11(B).” State v. Jones,

,

, ¶ 25.

This may be done “orally or in writing * * *.” Id. at ¶ 51. Crim.R. 11(B)(2) sets forth the effect

of a no contest plea as follows: “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 * * * complaint, and the plea or

admission shall not be used against the defendant in any subsequent civil or criminal

proceeding.”

{¶9} Because the right to be informed of the effect of a plea is a nonconstitutional one,

it is “‘subject to review under a standard of substantial compliance.’” Milano at ¶ 11, quoting

State v. Griggs,

,

, ¶ 12. In order to substantially comply with

Crim.R. 11, “a slight deviation from the text of the rule is permissible; so long as the totality of

the circumstances indicates that ‘the defendant subjectively understands the implications of [her]

plea and the rights [she] is waiving[.]’” State v. Clark,

,

, ¶

31, quoting State v. Nero,

(1990). If substantial compliance is not

achieved, a reviewing court must determine if the trial court partially complied or failed to

comply with the rule. Id. at ¶ 32. A trial court’s complete failure to comply with Crim.R. 11 4

requires the plea to be vacated, but if the court partially complied with the rule the defendant

must demonstrate prejudice for the plea to be vacated. Id. See also Milano at ¶ 11, quoting State

v. Johnson, 9th Dist. Summit No. 27550,

; but see Jones at ¶ 52, citing

Griggs at ¶ 12 (stating the failure to comply with nonconstitutional rights, such as the

information in Crim. R. 11(B)(1), will not invalidate a plea unless the defendant thereby suffered

prejudice). “The test for prejudice is ‘whether the plea would have otherwise been made.’”

Jones at ¶ 52, quoting

.

{¶10} Upon review, the transcript of the Ms. Brown’s plea hearing does not reflect that

the trial court ever informed her orally that (1) her plea of no contest is not an admission of her

guilt, but is an admission of the truth of the facts alleged in the complaint, or (2) her plea or

admission shall not be used against her in any subsequent civil or criminal proceeding; nor does

the record contain any documents signed by Ms. Brown demonstrating that the court informed

her of the effect of her plea. Compare Johnson at ¶ 10 (noting the complete absence of any

discussion indicating that the trial court informed Johnson about the effect of his plea); State v.

Fraraccio, 9th Dist. Summit No. 18040,

, *1 (May 14, 1997) (stating “[t]he

trial court’s journal entry, standing alone, will not suffice” to affirmatively show in the record

that a no contest plea was knowingly, intelligently, and voluntarily given). The record does

contain a written waiver of trial by jury, which appears to have been electronically signed by

both Ms. Brown and her attorney, and the plea transcript reveals that the court orally discussed

with Ms. Brown the recommended sentence and its inclination to follow that recommendation.

Nevertheless, the Supreme Court of Ohio has made it clear that the “effect of the plea”

requirement satisfied by informing the defendant of Crim.R. 11(B)(2) cannot alternatively be

satisfied by simply informing the defendant of the maximum sentence and the right to a jury 5

trial. See Jones at ¶ 22. Because those three concepts are distinct, “a statement about the effect

of a plea is separate from statements relating to a maximum penalty and the right to jury trial.”

Id. We therefore cannot conclude that the trial court advised Ms. Brown of the effect of her no

contest plea either orally or in writing.

{¶11} In addition, it appears from the transcript that Ms. Brown never actually entered a

verbal plea of no contest during the plea hearing. Compare Johnson at ¶ 10 (noting that Johnson

never entered a guilty plea to his petty offense in open court); Richmond Heights v. Myles, 8th

Dist. Cuyahoga No. 84638,

(noting Myles did not enter a verbal no contest

plea to his petty offense at any point during the hearing). See also Cleveland v. Paramount Land

Holdings, L.L.C., 8th Dist. Cuyahoga No. 95448,

(“At its most basic level,

the court failed to comply with Crim.R. 11 because it failed to even take the plea of no contest

from [the defendant].”). Instead, right after the trial court communicated to Ms. Brown that the

prosecutor’s offer was for her to plead no contest for a 30-day jail sentence to run concurrent to

her other case with credit for time served, the following exchange occurred:

THE COURT: [D]o you want to do that or leave it set for trial?

THE DEFENDANT: I just want to get it over with.

THE COURT: You want to get it over with?

THE DEFENDANT: Yeah.

THE COURT: I’ll ask you to sign two forms.1 If you sign them, you’ll be giving up your right to the trial. Okay?

So, we’ll have you sign that at the bailiff station.

1 Once again, while the record contains an electronically-signed written waiver of trial by jury, which is presumably one of the “two forms” mentioned by the court, we can find no other document in the record, signed or unsigned, demonstrating that Ms. Brown was informed of the effect of her plea. 6

A vague statement to the court that one simply wishes “to get it over with” could conceivably

mean any number of things, but it is certainly not the functional equivalent of a plea of no

contest. Moreover, the trial court asked for and received a brief summary of the facts of the case

from the prosecutor, see R.C. 2937.07, and asked defense counsel and Ms. Brown if they would

like to say anything, but the court did not then orally state that it was accepting a plea from Ms.

Brown, nor did it make a finding of guilt in open court. Compare Johnson at ¶ 10, fn. 1 (noting

the court’s failure to make a finding of guilt in open court). Instead, after Ms. Brown was

afforded the opportunity to speak, the court immediately proceeded to sentencing.

{¶12} Due to the lack of any indication in the record that the trial court informed Ms.

Brown, either orally or in writing, of the effect of her no contest plea, we determine that there is

a complete lack of compliance with Crim.R. 11. See Johnson at ¶ 10. Consequently, Ms. Brown

need not demonstrate that she suffered prejudice as a result of the court’s noncompliance with

Crim.R. 11. See id.; Clark at ¶ 31. See also Cleveland v. Adams, 8th Dist. Cuyahoga No. 97523,

(determining that the trial court completely failed to “strictly or

substantially” comply with Crim.R. 11 since “[a] review of the transcript * * * reveals that the

trial court did not advise [the defendant] of the effect of the no contest pleas”). We must

conclude that Ms. Brown’s no contest plea was invalid—as it was not knowingly, intelligently,

and voluntarily made—and that her conviction must be vacated. See Johnson at ¶ 10.

{¶13} Ms. Brown’s sole assignment of error is sustained.

III.

{¶14} Ms. Brown’s sole assignment of error is sustained. The judgment of the Lorain

Municipal Court is reversed, and the matter is remanded for proceedings consistent with this

opinion. 7

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Lorain Municipal

Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

THOMAS A. TEODOSIO FOR THE COURT

HENSAL, P. J. CONCURRING.

{¶15} I would reverse solely on the ground that the record does not support that Ms.

Brown entered a plea of no contest. 8

CARR, J. CONCURRING.

{¶16} I concur in the majority’s judgment but write separately to express my concern

that we have reached the point where failing to extend the protections of Crim.R. 11(C) to

defendants charged with misdemeanors will ultimately lead to some extremely harsh results. It

has been nearly 20 years since the Supreme Court decided State v. Watkins,

,

. That case involved a second-time DUI offender, meaning the high court’s

holding was predicated on an application of the Ohio Traffic Rules because the offender was

charged with a petty misdemeanor traffic offense. Watkins at ¶ 1, 9.

{¶17} In the case before us, Ms. Brown was charged with misdemeanor aggravated

menacing. As noted by the majority, Ms. Brown never actually entered a no contest plea and

instead simply expressed a preference to “get it over with.” It is not uncommon for defendants

charged with petty misdemeanor offenses to adopt a similar attitude given that declining to

contest the charge will not result in a lengthy term of incarceration, at least in the short term.

This is a dangerous approach to misdemeanor proceedings given that sentencing enhancement

schemes have become more sophisticated over the past two decades and the collateral

consequences associated with misdemeanor offenses have also multiplied. Petty misdemeanor

convictions can also carry jail sentences of up to six months. See State v. Frederick, 9th Dist.

Wayne No. 18AP0005,

(recognizing that while the United States

Constitution extends the right to counsel upon actual incarceration, Ohio has extended greater

protections to defendants facing significant penalties, including the possibility of incarceration.).

I would strongly encourage the Supreme Court to reexamine the question of whether

misdemeanor offenders should be afforded the protections set forth in Crim.R. 11(C) prior to

entering a plea of guilty or no contest. 9

APPEARANCES:

DENISE G. WILMS. Attorney at Law, for Appellant.

ROCKY RADEFF, Prosecuting Attorney, for Appellee.