[Cite as State v. Hubbs, 196 Ohio App.3d 682, 2011-Ohio-6152.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
THE STATE OF OHIO, )
) CASE NO. 09 CO 24
APPELLEE, )
)
V. ) OPINION
)
HUBBS, )
)
APPELLANT . )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 08CR68.
JUDGMENT: Reversed and Remanded (Prior decision
of this Court Upheld).
APPEARANCES:
Robert Herron,
Columbiana County Prosecuting Attorney,
And Tammie Riley Jones,
Assistant Prosecuting Attorney,
For appellee.
Bryan Felmet, for appellant.
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: November 28, 2011
VUKOVICH, Judge.
{¶ 1} Defendant-appellant, Thomas Hubbs, appealed the decision of the
Columbiana County Common Pleas Court, finding him guilty of one count of driving
under the influence (“DUI”) in violation of R.C. 4511.19(A)(1)(i). Counsel for Hubbs
filed no merit brief and requested leave to withdraw.
{¶ 2} On September 29, 2010, this court found that there was an appealable
issue, and based on the Supreme Court’s decision in Elevators Mut. Ins. Co. v. J.
Patrick O’Flaherty’s, 125 Ohio St.3d 362, 2010-Ohio-1043, we vacated the no-contest
plea and conviction and remanded the matter to the trial court for further proceedings.
State v. Hubbs, 7th Dist. No. 09CO24, 2010-Ohio-4849 (Hubbs I). The state appealed
our decision to the Supreme Court on the basis that it was not given the opportunity to
brief the appealable issue prior to this court’s ruling on it. The Supreme Court did not
accept the appeal for review. State v. Hubbs, 128 Ohio St.3d 1411, 2011-Ohio-828.
{¶ 3} Following the Supreme Court’s refusal to accept the appeal, the state
filed a delayed motion for reconsideration. We granted the motion in the interests of
justice and complete review; however, we noted that the state should be more diligent
in filing its motions for reconsideration in a timely manner. We then instructed counsel
for each party to brief the following issue:
{¶ 4} “Is the Ohio Supreme Court’s decision in Elevators Mut. Ins. Co. v. J.
Patrick O’Flaherty’s, 125 Ohio St.3d 362, 2010-Ohio-1043, applicable in this case?
Furthermore, if it is applicable does that decision support the conclusion that a
misdemeanor conviction (failure to control) that resulted from a no contest plea is
admissible in the proceedings for the felony charge (DUI) when the two charges arose
2
from the same incident but were tried separately, with the misdemeanor charge being
resolved first in municipal court?”
{¶ 5} The parties filed their respective briefs, and accordingly, we are now
asked to decide whether we agree with our decision in Hubbs I.
ANALYSIS
{¶ 6} In Hubbs I, 2010-Ohio-4849, we explained the relevance and application
of Elevators as follows:
{¶ 7} “Crim.R. 11(B)(2) states that a no contest plea ‘shall not be used against
the defendant in any subsequent civil or criminal proceeding.’ Similarly, Evid.R.
410(A)(2) provides that a no contest plea is not admissible in ‘any civil or criminal
proceeding against the defendant who made the plea.’
{¶ 8} “While the language of these rules focus[es] on the no contest plea and
not the conviction that resulted from the no contest plea, the Ohio Supreme Court has
recently held that these rules also prevent the use of convictions based on no contest
pleas. Elevators Mut. Ins. Co. v. J. Patrick O'Flaherty's, 125 Ohio St.3d 362, 2010–
Ohio 1043, ¶ 14. It provided the following reason for coming to that conclusion:
{¶ 9} “ ‘The purpose behind the inadmissibility of no contest pleas in
subsequent proceedings is to encourage plea bargaining as a means of resolving
criminal cases by removing any civil consequences of the plea. [State v.] Mapes, 19
Ohio St.3d [108] at 111, [19 OBR 318, 484 N.E2d 140]; Rose v. Uniroyal Goodrich Tire
Co. (C.A.10, 2000), 219 F.3d 1216, 1220. The rule also protects the traditional
characteristic of the no contest plea, which is to avoid the admission of guilt. Id. The
prohibition against admitting evidence of no contest pleas was intended generally to
apply to a civil suit by the victim of the crime against the defendant for injuries resulting
3
from the criminal acts underlying the plea. Allstate Ins. Co. v. Simansky (1998), 45
Conn.Supp. 623, 628, 738 A.2d 231. The plain language of Evid.R. 410(A) prohibits
admission of a no contest plea, and the prohibition must likewise apply to the resulting
conviction. To find otherwise would thwart the underlying purpose of the rule and fail
to preserve the essential nature of the no contest plea.’ Id.
{¶ 10} “Based on the above rules and case law, we disagree with the trial
court's holding that the misdemeanor conviction from the no contest was admissible in
the proceedings for the felony charges. The fact that the misdemeanor and felony
charges arose from the same transaction does not constitute a reason to disregard the
aforementioned court cases as well as the clear language set forth in the rules of
evidence and criminal procedure. The focus in the rules and in Elevators is that the no
contest plea and conviction resulting from that plea cannot be used in any action.
There is no distinction in either the rules or the case law between pleas entered in
proceedings arising out of the same incident and those arising out of separate
incidents. Consequently, the trial court erred in failing to suppress the misdemeanor
failure to control conviction.” (Boldface sic.) Hubbs I, 2010-Ohio-4849, at ¶ 22-25.
{¶ 11} Admittedly, Elevators is a civil case where the no-contest plea from the
criminal conviction was being sought to be used to prove an element of the civil claim.
The fact that it was a civil case does not make the above reasoning inapplicable.
Rather, it provides greater support for the position that it is applicable. A criminal
defendant faces the potential loss of his personal liberty and therefore has much more
at stake than a civil litigant who is asserting or contesting a claim for damages. For
that reason, the law typically affords greater protection to the criminal defendant and
4
his rights. Thus, since Evid.R. 410 and Crim.R. 11 prevent the introduction of a no-
contest plea in any subsequent proceeding, the fact that the Ohio Supreme Court in a
civil case stated that the conviction based on a no-contest plea is likewise barred from
admission does not hinder its application to a criminal defendant in a criminal
proceeding.
{¶ 12} Furthermore, we note that if we were to find that the failure to control
conviction based on a no-contest plea could be legally used in the DUI offense to
prove that Hubbs was the driver because it arose from the same transaction, we would
be carving out an exception to the effect of a no-contest plea—i.e., that it cannot be
used against the person in a subsequent proceeding. This potential exception is not
found in Crim.R. 11, Evid.R. 410, or case law. If we were to create this exception, we
would be adding words to Crim.R. 11 and/or Evid.R. 410 because we would be
qualifying the word “any” as used in both aforementioned rules. Likewise, judicial
creation of an exception could potentially affect a defendant’s ability to enter a plea
knowingly. For instance, if Hubbs was not advised prior to entering his no-contest plea
to the failure-to-control charge that that conviction could be used against him in the
proceedings for the DUI that arose from the same transaction, his plea to the failure-
to-control charge most likely would not be entered into knowingly because of the
impact it would have on the DUI charge. The conviction for failure to control effectually
proves an element of the DUI charge–that Hubbs was driving.
{¶ 13} Along this same vein, we note that because the failure to control and the
DUI arose out of the same transaction, the prosecutor could have tried these cases
together. It is unclear from the record why bifurcation occurred. Plausibly it was the
5
prosecutor’s intention to attempt to use the failure-to-control conviction as a means to
prove an element of the DUI offense. However, as explained above, such an action is
fraught with potential to violate a defendant’s rights. Thus, we cannot condone such
an action, especially in light of the Supreme Court’s decision in Elevators.
{¶ 14} Accordingly, even after reviewing the parties’ arguments, we find that our
decision in Hubbs I stands. Therefore, “[t]he suppression ruling is reversed, the plea
and sentence is vacated and the cause is remanded to the trial court for further
proceedings.” Hubbs I, 2010-Ohio-4849 at ¶ 30.
Judgment affirmed.
DONOFRIO and DEGENARO, JJ., concur.
6