[Cite as State v. Young, 2017-Ohio-8685.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HENRY COUNTY
STATE OF OHIO,
CASE NO. 7-17-01
PLAINTIFF-APPELLEE,
v.
JEREMY J. YOUNG, OPINION
DEFENDANT-APPELLANT.
Appeal from Napoleon Municipal Court
Trial Court No. 17 CRB 00321
Judgment Reversed, Cause Remanded
Date of Decision: November 27, 2017
APPEARANCES:
Clayton M. Gerbitz for Appellant
Billy D. Harmon for Appellee
Case No. 7-17-01
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jeremy Young (“Young”) brings this appeal from
the judgment of the Napoleon Municipal Court finding him guilty of domestic
violence. Young challenges 1) the trial court’s compliance with Criminal Rule
11(E) and 2) the sentence imposed. For the reasons set forth below, the judgment
is reversed and the matter is remanded.
{¶2} On April 21, 2017, a complaint was filed in the trial court alleging that
Young had committed an act of domestic violence in violation of R.C. 2919.25(A),
a misdemeanor of the first degree. Doc. 1. Young allegedly had placed his hands
around the victim’s throat after the child woke him from sleeping. Id. The victim
was the child of Young’s fiancé and lives with Young. Id. Young later appeared
by video for arraignment where he entered a plea of no contest. Doc. 2. The trial
court found him guilty of the offense and immediately proceeded to sentence Young
to one year of probation, including 180 days in jail with 170 of the days suspended.
Id. The trial court also ordered that Young have no contact with the victim and the
victim’s sibling for two years. On May 18, 2017, Young filed his notice of appeal
from the judgment of the trial court. Doc. 5. Young raises the following
assignments of error on appeal.
First Assignment of Error
The trial court erred in accepting [Young’s] plea by failing to comply
with Criminal Rule 11(E).
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Second Assignment of Error
The trial court abused its discretion when it imposed, as a
condition of probation or community control, an order requiring
that [Young] have no contact with two minor children.
{¶3} On June 20, 2017, the Clerk of the Napoleon Municipal Court certified
that the record consisted of one transcript and papers numbered one to ten. On July
11, 2017, Young filed his brief with this court, raising the above listed assignments
of error. On July 17, 2017, a “Transcript of Proceedings Reading of Rights at
Corrections Center of Northwest Ohio” was filed. The order of the trial court
ordering the supplementation of the record was filed on July 20, 2017. The State
then filed its brief on July 28, 2017.
{¶4} On August 4, 2017, Young filed a motion to quash the transcript filed
on July 17, 2017 and any argument based upon it. The motion was based upon the
facts that 1) the record contains no identification of the party seeking to add the
transcript, 2) the record contains no indication that the transcript was ever a valid
part of the trial court record, and 3) no motion or order was ever filed to have the
record supplemented. This motion will be addressed along with the first assignment
of error.
Advising a Defendant of Legal Rights
{¶5} In both the motion to quash and the first assignment of error, Young
argues that the trial court did not correctly advise him of his rights and the effect of
a no contest plea. Initially, this court notes that the trial court has the authority to
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order the record to be supplemented to correct an omission from the record, even
after the record has been transmitted to the court of appeals. App.R. 9(E). In this
case, the trial court sua sponte ordered that the record be “supplemented to include
a transcript of the statement of rights played to the Defendant prior to his April 21,
2017 initial appearance.” July 20, 2017 order.
{¶6} To fully understand the effect of this supplement, one must first
comprehend what the procedures used were. A review of the record in this case
indicates that at some time prior to the April 21, 2017 court hearing, a recorded
message referred to as a “statement of rights” was allegedly played for Young in the
holding area at his location at the Corrections Center of Northwest Ohio while he
was waiting to be connected with the trial court via video link for his arraignment.
This recording was what the trial court sua sponte added to the record. After
allegedly listening to the recorded statement of rights, Young was eventually
connected via video link to the trial court and arraigned.
{¶7} Although the trial court may supplement the record, the supplement in
this case raises several issues which affect the weight the supplemented record is
accorded. The first issue is that the transcript does not indicate whether the trial
court had previously reviewed the recording being played and approved it as part of
the court proceedings. At no time does the record indicate that the trial court was
aware of what specifically was played for the defendant. The trial court apparently
was not present for the advisement, but instead merely asked the defendant at a later
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time if he had heard “a statement of [his] rights.” Tr. 2. A trial court cannot be
certain what was presented to the defendant absent having it be part of the court
proceeding.
{¶8} We also note that the trial court certified that the “foregoing transcript
of the hearing held on April 21 2017 consisting of 5 pages * * * is a true complete
transcript of the proceedings, and I do further certify that I was personally present
in the courtroom during all of said proceedings.” This certification was attached to
the transcript of proceedings that took place in the Napoleon Municipal Court on
April 21, 2017, and indicates that it is a complete transcript of proceedings. The
reading of rights transcription contained no such certification, does not indicate the
date on which it occurred, and merely identifies the text as coming from “speaker”.
{¶9} The second issue raised is whether the transcript of the advisement of
the rights was actually what was played for Young. The record does not show that
Young was incarcerated at the Corrections Center of Northwest Ohio and the trial
court did not ask that at the hearing. Even assuming that Young was at the
Corrections Center of Northwest Ohio, the record contains no verification that this
recording was played on the date in question and that Young was in attendance for
that specific presentation. All the record contains is a statement by Young that he
listened to a statement of his rights and that he had no questions. Tr. 2. At no time
were any specifics discussed from which a conclusion could be reached that this
recording was the one which Young heard. Although the trial court may supplement
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the record, logically the record must contain something to indicate that the transcript
which is being added is related to the matter before this court.
{¶10} The third issue this court has with the supplemented transcript is the
process by which it was used. The trial court evidently used the recording as a way
to avoid having to discuss the rights with each individual defendant. While
recordings may be used to advise defendants of their rights en masse, the trial court
must still take steps to insure that the advisement is correct and that a defendant
actually comprehends what was presented. A defendant who pleads not guilty may
not need additional advisement at that point in time, but one who enters a plea of no
contest or guilty must comprehend what rights they are waiving prior to entering the
plea. In this case, the trial court failed to take any steps to insure that Young actually
comprehended the rights he was waiving and the effect of the plea before accepting
a plea of no contest. This court does not see how a trial court can make a finding
that a defendant is entering a plea knowingly, voluntarily, and intelligently without
first addressing the defendant and determining that the defendant actually
understands what was stated. Here, the trial court merely asked if Young had heard
his rights and then asked him to initial and sign a waiver form without addressing
the content of the form. The trial court also did not take any steps to determine
whether Young could read the form or had any conditions which might interfere
with his ability to understand what he was being told. Although the waiver form
addressed the fact that a conviction for domestic violence could elevate any future
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charges of domestic violence, the trial court did not address this issue with the
defendant prior to accepting the plea. The alleged advisement of rights at the
Correctional Center of Northwest Ohio did not address this issue either.
{¶11} Although all of these issues raise questions in this court, the fatal
error in the acceptance of the plea was the failure of the trial court to
accurately advise Young of the effect of his plea as required by Criminal Rule 11(E).
“In misdemeanor cases involving petty offenses the court may refuse to accept a
plea of guilty or no contest, and shall not accept such plea without first informing
the defendant of the effect of the pleas of guilty, no contest, and not guilty.” Crim.R.
11(E). The Supreme Court of Ohio has held that to comply with the requirements
of Criminal Rule 11(E) when informing a defendant of the effect of a plea of no
contest, the trial court must inform the defendant “that the plea of no contest is not
an admission of guilt but is an admission of the truth of the facts alleged in the
complaint, and that the plea or admission shall not be used against the defendant in
any subsequent civil or criminal proceeding.” State v. Jones, 116 Ohio St.3d 211,
2007-Ohio-6093, 877 N.E.2d 677, ¶ 23 citing Crim.R. 11(B)(2). Here, the dialogue
between the trial court and Young prior to accepting the plea of no contest was very
short.
The Court: Mr. Young, did you listen to a statement of your
rights?
Mr. Young: I sure did Your Honor.
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The Court: Do you have any questions about your rights?
Mr. Young: No ma’am.
The Court: Did you receive a copy of this complaint?
Mr. Young: I did Your Honor.
The Court: The complaint alleges that on or about April 19, 2017
you did, in the City of Napoleon, County of Henry, State of Ohio,
knowingly caused or attempted to cause physical harm to a family
or household member. It is a violation of [R.C. 2919.25(A)],
commonly known as Domestic Violence, and it is a misdemeanor
of the first degree punishable by up to six months in jail, $1,000
fine or both. How do you wish to plea?
Mr. Young: Um, no contest.
The Court: You realize that if you plead no contest you would be
waiving or giving up the rights you are given in that statement?
Mr. Young: I really don’t know what to say, you know, the
situation escalated and nobody was injured * * *
The Court: I don’t want to hear anything about the incident I’m
just asking if you are sure you want to plead no contest because
you are going to be found guilty of this offense.
Mr. Young: Umm, yes ma’am.
The Court: There is a written waiver for you to sign, please read
over this waiver, it explains what rights you are giving up by
pleading no contest. Please initial all of the lines and date and sign
at the bottom where indicated. The Court will find that you
knowingly, voluntarily and intelligently with the full
understanding of rights, waived those rights and entered a plea of
no contest. The Court would accept your plea and I’m going to
read for the record the report of the officer. It states that on April
20, 2017 officers were called to Maple Street for an alteration
between Randall Dixon and Amy Watson, through an
investigation it was discovered that Randall and Amy were
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arguing over a domestic violence incident that took place at
Amy’s residence. It was reported that on April 19, in the City of
Napoleon, Henry County, Ohio [Young] strangled the victim who
is eleven years old by placing his hands around the victim’s throat
and squeezing. The victim reported that the defendant was
shaking him while choking him and that [Young] choked him for
3-5 seconds before releasing him.
Mr. Young: That’s not true.
The Court: Those are the facts of the report and based on those
facts I am going to find you guilty of this offense. Is there anything
you wish to say regarding sentencing?
Mr. Young: No, no ma’am.
Tr. 2-4.
{¶12} Regardless of whether the trial court should have taken additional
steps to insure that the plea was knowingly, voluntarily, and intelligently entered,
the trial court was required by the rules to inform Young of the effect of the plea of
no contest before accepting the plea. The trial court erred in this endeavor because
it did not correctly inform Young. The trial court was supposed to inform Young
that if he entered a plea of not contest, he would not be admitting guilt, but that he
would be making an admission of the truth of the facts alleged in the complaint.
Crim.R. 11(B). The trial court also was required to inform Young that the plea or
admission could not be used against him in any subsequent civil or criminal
proceeding. Id. Instead of informing Young of this, the trial court told him that if
he entered a plea of no contest, he would be found guilty of the offense charged.
This is an incorrect statement of law and does not comply with Criminal Rule 11.
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Because the trial court failed to correctly advise Young of the effect of the plea of
no contest, the plea was not voluntarily, intelligently, and knowingly entered. The
first assignment of error is sustained.
{¶13} Having found that the plea was not voluntarily entered, the question
of the sentence as raised in the second assignment of error is moot. This court will
thus not address that assignment of error at this time. App.R. 12(A)(1)(c).
{¶14} Having found error prejudicial to the appellant in the first assignment
of error, the judgment of the Napoleon Municipal Court is reversed. The matter is
remanded to the trial court for further proceedings in accord with this opinion.
Judgment Reversed
Cause Remanded
PRESTON, P.J. and SHAW, J., concur.
/hls
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