[Cite as State v. Collier, 2009-Ohio-6236.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-09-09
v.
ANTHONY J. COLLIER, OPINION
DEFENDANT-APPELLANT.
Appeal from Upper Sandusky Municipal Court
Trial Court No. TRD 08-5540
Judgment Vacated and Cause Remanded
Date of Decision: November 30, 2009
APPEARANCES:
Eric W. Beery for Appellant
Kathryn M. Collins for Appellee
Case No. 16-09-09
Rogers, J.
{¶1} Defendant-Appellant, Anthony Collier, appeals the judgment of the
Upper Sandusky Municipal Court convicting him of a special load permit
violation and operating an overloaded vehicle. On appeal, Collier argues that the
trial court erred in convicting him of operating an overloaded vehicle because his
overload permit was improperly voided by the state trooper, as there is no
requirement in R.C. 4513.23 or the State of Ohio Department of Transportation,
Office of Maintenance Management, Special Hauling Permit Section Operational
Guide (“operational guide”) that he have extended mirrors on the vehicle, and the
evidence established that he was able to see to the rear of his vehicle and around
both sides of the load pursuant to R.C. 4513.23 and the operational guide. Based
on the following, we vacate Collier’s no contest plea and conviction.
{¶2} In December 2008, Collier was cited for operating an overloaded
vehicle in violation of R.C. 5577.04, a minor misdemeanor, and with violating the
terms of a special load permit in violation of R.C. 4513.34, a minor misdemeanor.
The citation arose from an incident whereby Collier was operating a tractor trailer
with an overweight and oversize load on U.S. 30 in Wyandot County and was
stopped by an Ohio State Patrol Trooper, and the trooper invalidated his special
load permit on the premise that his mirrors were insufficient to see to the rear and
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sides of his load. Subsequently, Collier entered a not guilty plea to both charges in
the citation.
{¶3} In May 2009, prior to the scheduled commencement of a bench trial,
Collier made an oral motion to dismiss, arguing that his special load permit was
improperly voided, as the statute contains no requirement that he have extended
mirrors; that the statute only requires that he be able to see to the rear of the
vehicle; that the statute does not contain a distance requirement of how far the
driver needs to be able to see to the rear; and, that he was able to see to the rear of
his load.
{¶4} In response to Collier’s motion, the State argued that, although the
operational guide, which must be followed according to the terms of the special
load permit, and the statute do not require the vehicle to have extended mirrors,
they do require that the mirrors on the vehicle be sufficient for the driver to see to
the rear of the vehicle, and the evidence establishes that the width of Collier’s load
and the size of his mirrors prohibited him from being able to see to the rear of his
vehicle, thereby violating the requirements of the special load permit and giving
the trooper the authority to void the permit.
{¶5} Subsequent to the arguments of both parties, but before the
presentation of evidence, the trial court denied Collier’s motion to dismiss and
engaged in the following discussion with Collier’s trial counsel and the State:
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[Trial Court]: I guess the issue is we proceed with trial or you
resolve it in a plea negotiation, * * * and if your company wants
to take it up, do no contest plea and appeal it.
***
All right. Uhm, and where’s the State on this if you do a
negotiation?
***
What you got here is somewhat of an honest dispute. It’s not like
a flagrant intentional violation.
***
I guess to be fair to you guys its – its my opinion, at this stage
without hearing more, that there was a violation here, all right.
So, where do we wanna go from here? Do we wanna put on
more evidence? It seems to me that you have pretty much
chattered about everything that is relevant on this * * *.
***
[Collier’s Trial Counsel]: And actually, uhm, I know Mr.
Grafmiller and I discussed, I mean, one of the things was, uhm,
we weren’t talking dismissing the matter. We were talking
about, I mean, just a reduction in fine and a – and a plea * * *.
***
* * * [W]e were – we were talking about finding – a guilty fine or
a guilty plea on the overweight, so you’re not gonna have a
dismissal that the company will run around and challenge.
Obviously, I think, and you’re exactly right, frankly, municipal
court is not the area where you challenge it anyway, obviously,
the Court of Appeals is.
***
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Case No. 16-09-09
[Trial Court]: If you wanna continue with the motion to dismiss
and put on evidence that reflects the key statute here * * *.
[State]: I’m just not sure how – what kind of record we have just
as oral arguments.
[Trial Court]: Well, I’m saying we can continue with the motion.
***
[State]: Right.
[Trial Court]: We had conversation.
[State]: Right.
[Trial Court]: Which is all on the record. And if you wanna now
put on testimony in response, uhm, to the defendant’s oral
argument you could do so. I – I gather what you’re trying to do
is – it’s efficient on the record to do an appeal from the motion.
[Collier’s Trial Counsel]: Exactly.
[Trial Court]: Okay. That’s – That would be the same as – as a
motion to suppress. You go forward, you enter your plea of no
contest.
[State]: Motion denied so now we’re for purposes of –
[Trial Court]: You preserve your appeal rights with a no contest
and get a stay on the fine and costs.
(May 2009 Hearing Tr., pp. 21-26).
{¶6} After the presentation of testimony regarding the citation, Collier
entered a no contest plea to both charges in the citation, with the State agreeing to
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reduce the applicable fine.1
{¶7} Subsequently, the trial court entered its judgment entry of conviction
and sentencing, finding Collier guilty of a special load permit violation pursuant to
R.C. 4513.342 and of operating an overloaded vehicle pursuant to R.C. 5577.04,
and ordering him to pay a fine of $231.50 plus court costs.3
{¶8} It is from this conviction and sentence that Collier appeals,
presenting the following assignments of error for our review.
Assignment of Error No. I
THE FACTS AND EVIDENCE OF THE CASE DO NOT
PROVE A VIOLATION OF ORC 4513.23. APPELLEE IS
ATTEMPTING TO PUT REQUIREMENTS IN ORC 4513.23
AND THE DEPARTMENT OF TRANSPORTATION
OPERATIONAL GUIDE THAT ARE NOT REQUIRED.
APPELLEE INCORRECTLY VOIDED THE OVERSIZED
PERMIT, DUE TO THE FACT THERE WAS NO
VIOLATION OF ORC 4513.23.
Assignment of Error No. II
APPELLEE FAILED TO SATISFY ITS BURDEN OF PROOF
IN PROVING BEYOND A REASONABLE DOUBT THAT
APPELLANT VIOLATED ORC 4513.23.
1
We note that Collier’s trial counsel stated on the record that Collier wished to amend his plea to no
contest without specifying whether he was pleading no contest to both charges in the citation. However,
we construe his plea amendment to be on both charges in the citation, as no issue concerning the pleas has
been raised on appeal.
2
Although the trial court’s judgment entry stated a conviction for a permit violation, it listed the incorrect
statute section, R.C. 4513.31, failure to properly secure a load. However, because Collier was not charged
under R.C. 4513.31, and no evidence was presented or argument made at the motion to dismiss hearing in
regards to a failure to properly secure a load, we construe this as a mere clerical error, and that Collier’s
conviction was for a permit violation pursuant to R.C. 4513.34, as charged in the citation.
3
We note that the entry of conviction was a hand-written document with a minimum of information,
including the apparent clerical error as to the section number. While we are aware that many municipal
courts are very busy, we would encourage all trial courts to conscientiously prepare entries that are
commensurate with the dignity to which the judicial system is entitled.
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Case No. 16-09-09
{¶9} Before addressing Collier’s assignments of error, we must first
address whether he has properly preserved his appeal.
{¶10} “While there can be an appeal from a conviction following a no-
contest plea, the issues that can be raised upon such an appeal are limited but,
pursuant to Crim.R. 12(H)4, include a claim ‘that the trial court prejudicially erred
in ruling on a pretrial motion, including a pretrial motion to suppress evidence.’”
State v. Watson, 2d Dist. No. 80AP-880, 1981 WL 3435.
{¶11} Crim. R. 12(I) provides that a no contest plea “does not preclude a
defendant from asserting upon appeal that the trial court prejudicially erred in
ruling on a pretrial motion * * *.” Crim.R. 12(C) defines a pretrial motion as “any
defense, objection, evidentiary issue, or request that is capable of determination
without the trial of the general issue.” Accordingly, a no contest plea does not
preserve appellate review of a trial court’s ruling on a pretrial motion where the
issue raised by the motion is not a “defense, objection, evidentiary issue, or
request that is capable of determination without the trial of the general issue.”
State v. Brock, 3d Dist. No. 5-06-27, 2006-Ohio-6681, ¶9, citing Watson, 1981
WL 3435. See, also, State v. Evans, 2d Dist. No. 21669, 2007-Ohio-6587, ¶11.
Furthermore, where a defendant enters into a negotiated plea bargain, and, in turn,
4
We note that Crim.R. 12 was amended in 2001, adding a new division (B) and redesignating prior
divisions (B) through (J) as new divisions (C) through (K), respectively. Accordingly, Crim.R. 12(H) is
now Crim.R. 12(I).
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enters a no contest plea based upon the erroneous assumption, joined in by the trial
court and the prosecution, that the plea will preserve his appellate rights to
challenge the trial court’s ruling on a pretrial issue, the plea bargain must be
rescinded, and the plea vacated. Brock, 2006-Ohio-6681, at ¶¶10, 12. See, also,
Columbus v. Sullivan (1982), 4 Ohio App.3d 7, 10; Columbus v. Quinn, 10th Dist.
No. 86AP-1079, 1987 WL 28458.
{¶12} “A pretrial motion to dismiss can only raise matters that are ‘capable
of determination without a trial of the general issue.’” State v. Certain, 180 Ohio
App.3d 457, 2009-Ohio-148, ¶4, quoting Crim.R. 12(C). A motion to dismiss a
complaint pursuant to Crim.R. 12(C) challenges the sufficiency of the complaint
without regard to the quantity or quality of the evidence to be produced by the
State. State v. Stout, 3d Dist. No. 8-07-12, 2008-Ohio-161, ¶12, citing State v.
Patterson (1989), 63 Ohio App.3d 91, 95. Accordingly, where a pretrial motion to
dismiss requires the trial court “to look beyond the face of the complaint to the
evidence and testimony that would be offered at trial,” the motion is improper as a
pre-trial motion. Certain, 180 Ohio App.3d 457, at ¶5; Stout, 2008-Ohio-161, at
¶12.
{¶13} In the case at bar, Collier made an oral motion to dismiss the charges
in the complaint on the basis that his special load permit was improperly voided,
and, consequently, that there was no legal basis for the citation. His motion to
dismiss was based on the premise that he could properly see to the rear of his
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vehicle and around both sides of the load pursuant to R.C. 4513.23 and the
operational guide. However, this motion goes to the sufficiency of the evidence
for the complaint, and is not “capable of determination without a trial of the
general issue,” Crim. R. 12(C), thereby requiring the trial court to “look beyond
the face of the complaint to the evidence and testimony that would be offered at
trial.” Certain, 180 Ohio App.3d 457, at ¶5. Consequently, we find that Collier’s
motion does not meet the definition of a pretrial motion pursuant to Crim.R.
12(C), such that he preserved for appeal the trial court’s denial of his motion by
entering a no contest plea.
{¶14} Furthermore, we find that the record demonstrates that Collier
consented to a plea bargain, and, consequently, entered a no contest plea based on
the erroneous assumption, fostered by the trial court and the State, that he was
preserving appellate review of the trial court’s denial of his motion. Collier’s trial
counsel stated his desire to preserve an appeal of the trial court’s denial of his
motion, and the trial court explicitly stated that a no contest plea would permit
Collier to appeal its denial. Pursuant to this Court’s prior holding in Brock, any
plea bargain premised on a mistaken belief that a no-contest plea will preserve
appellate rights must be rescinded, with the defendant given an opportunity to
move forward to trial. Consequently we must also rescind this plea agreement and
no contest plea and grant Collier the opportunity to have a trial on the merits of the
case.
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{¶15} Finally, we note that Collier frames his assignments of error in a
manner that questions whether the State met its burden of proof and whether there
was sufficient evidence of a permit violation. However, Collier made a motion to
dismiss, and a trial was never conducted, meaning the State was never charged
with the burden of proof to present sufficient evidence to establish a permit
violation.
{¶16} Accordingly, because we find that Collier consented to a plea
bargain and entered a no contest plea based on the erroneous assumption that he
was preserving his right to appeal the trial court’s denial of his motion to dismiss,
we rescind the plea bargain, vacate his no contest plea, and remand the matter for
further proceedings.
{¶17} Based on the foregoing, Collier’s assignments of error are rendered
moot, and we decline to address them. App.R. 12(A)(1)(c)
{¶18} Having found error prejudicial to Appellant herein, we vacate
Appellant’s no contest plea and conviction, and remand to the trial court for
further proceedings consistent with this opinion.
Judgment Vacated and Cause Remanded
WILLAMOWSKI and SHAW, J.J., concur.
/jnc
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