[Cite as Toledo v. Williams, 2018-Ohio-1954.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-17-1120
Appellee Trial Court No. CRB-16-16810
v.
Brian Richard Williams DECISION AND JUDGMENT
Appellant Decided: May 18, 2018
*****
David Toska, City of Toledo Chief Prosecutor, and
Henry Schaefer, Assistant Prosecutor, for appellee.
Vijay K. Puligandla, for appellant.
*****
SINGER, J.
{¶ 1} This case is before the court on the appeal of appellant, Brian Williams,
from the April 12, 2017 judgment of the Toledo Municipal Court. For the reasons that
follow, we reverse the judgment of the trial court and vacate appellant’s convictions.
{¶ 2} Appellant sets forth three assignments of error:
1. The trial court committed plain error at the initial appearance of
the appellant by amending the charges of domestic violence to
misdemeanors of the first degree from misdemeanors of the fourth degree,
because the amendments changed the degree of the offenses and the penalty
and therefore also changed the nature or identity of the charge.
2. The trial court erred in the taking of the plea by finding appellant
guilty beyond a reasonable doubt without having sufficient evidence to
establish that the elements of the offenses were met, and without requiring
an explanation of the circumstances from the appellee therefore violating
appellant’s due process rights, requiring appellant’s conviction to be
vacated.
3. The trial court erred in imposing the maximum and consecutive
sentences without taking into consideration the factors set out in R.C.
2929.22(B)(1).
Facts
{¶ 3} On December 4, 2016, appellant was charged by complaint in Toledo
Municipal Court with two counts of domestic violence, fourth-degree misdemeanors.
Each count was charged in a separate complaint in case Nos. CRB-16-16810-0102 and
No. CRB-16-16810-0202.
{¶ 4} On December 5, 2016, appellant appeared in court. Appellee, the city of
Toledo, requested that the second domestic violence charge be amended to an assault
charge, in violation of R.C. 2903.13(C)(1), and also requested that both charges be
amended from fourth-degree misdemeanors to first-degree misdemeanors. Appellant,
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who was represented by counsel, did not object. The trial court amended the charges as
requested. Appellant entered pleas of not guilty to the charges. In addition, appellant
consented to the issuance of a protection order.
{¶ 5} On January 10, 2017, appellant was charged by complaint in case No.
CRB-17-00386-0101, in Toledo Municipal Court with violation of protection order,
pursuant to R.C. 2919.27(A)(1), a first-degree misdemeanor.
{¶ 6} On February 1, 2017, the matter was called for trial, but appellant did not
appear. Bench warrants were issued.
{¶ 7} Appellant was arrested on March 6, 2017, and appeared in court the next
day. Thereafter, case No. CRB-16-16810-0102 was consolidated with case Nos.
CRB-16-16810-0202 and CRB-17-00386-0101.
{¶ 8} On March 22, 2017, the matter was again called for trial. Appellant entered
pleas of no contest to the domestic violence charge and the violation of protection order
charge. The trial court amended the domestic violence charge to an assault charge, in
violation of R.C. 2903.13, after finding a lack of the element of familial relationship. The
trial court then found appellant guilty of assault and guilty of violating the protection
order. The trial court dismissed the other assault charge.
{¶ 9} Sentencing was held on April 12, 2017. Appellant spoke and expressed his
remorse. Appellant also stated he thought he had pled no contest to a first and fourth-
degree misdemeanor. The matter was discussed and appellant was informed by the court
that he pled to two first-degree misdemeanors. The trial court then noted appellant’s
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extensive criminal record as well as the heinous nature of the assault, and sentenced
appellant to 180 days of confinement on each charge, the maximum sentence, to be
served consecutively. Appellant appealed.
First Assignment of Error
{¶ 10} Appellant contends the trial court committed plain error in permitting the
amendment of the complaint at appellant’s initial court appearance. Appellant argues
allowing the domestic violence charges to be amended from fourth-degree misdemeanors
to first-degree misdemeanors changed the degree of the offenses and the penalty, and
therefore changed the nature or identity of the charges. Appellant observes since his
defense counsel did not object to the request to amend the complaint, appellant waived all
but plain error.
{¶ 11} Appellee countered, with respect to the first domestic violence charge, that
the complaint contained a “scrivener’s error” of classifying the offense as a fourth-degree
misdemeanor instead of a first-degree misdemeanor. Appellee asserted the amendment
of the complaint by the trial court changing the degree of the misdemeanor from a fourth
degree to a first-degree misdemeanor corrected an incorrect statement and did not change
the degree of the offense. Appellee insisted appellant was not prejudiced by the incorrect
statement, and appellant agreed to the amendment. With respect to the second domestic
violence charge, which was amended to an assault charge, appellee noted this charge was
dismissed in the plea deal.
4.
Plain Error
{¶ 12} Plain error is an obvious defect in the trial proceeding which affects
substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). With
a plain error analysis, the “appellate court must examine the error * * * in light of all the
evidence properly admitted at trial and determine whether the jury would have convicted
the defendant even if the error had not occurred.” State v. Slagle, 65 Ohio St.3d 597,
604, 605 N.E.2d 916 (1992).
Crim.R. 3
{¶ 13} Crim.R. 3 states:
The complaint is a written statement of the essential facts
constituting the offense charged. It shall also state the 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. 7
{¶ 14} Crim.R. 7(D) provides:
The court may at any time before, during, or after a trial amend the
indictment, information, complaint, or bill of particulars, in respect to any
defect, imperfection, or omission in form or substance, or of any variance
with the evidence, provided no change is made in the name or identity of
the crime charged.
5.
{¶ 15} “Crim.R. 7(D) does not permit the amendment of an indictment when the
amendment changes the penalty or degree of the charged offense; amending the
indictment to change the penalty or degree changes the identity of the offense.” State v.
Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus.
First Domestic Violence Charge (Case No. CRB-16-16810-0102)
{¶ 16} The record shows the original complaint charged appellant with domestic
violence, in violation of R.C. 2919.25, a fourth-degree misdemeanor. The complaint set
forth in relevant part that “the victim * * * stated the defendant attacked her, by hitting
her on her face, back and her head [and] he also hit her across her forehead with a belt
causing injuries to her forehead.”
{¶ 17} R.C. 2919.25 states in relevant part:
(A) No person shall knowingly cause or attempt to cause physical
harm to a family or household member.
(B) No person shall recklessly cause serious physical harm to a
family or household member.
(C) No person, by threat of force, shall knowingly cause a family or
household member to believe that the offender will cause imminent
physical harm to the family or household member.
(D) (1) Whoever violates this section is guilty of domestic violence,
and the court shall sentence the offender as provided in divisions (D)(2) to
(6) of this section.
6.
(2) Except as otherwise provided in divisions (D)(3) to (5) of this
section, a violation of division (C) of this section is a misdemeanor of the
fourth degree, and a violation of division (A) or (B) of this section is a
misdemeanor of the first degree.
{¶ 18} R.C. 2919.25 provides distinct offenses with different punishments. When
a statute sets forth varying offenses, Crim.R. 3 requires the complaint to set forth the
specific subsection under which the defendant is being charged. State v. Atwood, 61
Ohio App.3d 650, 654, 573 N.E.2d 739 (4th Dist.1990). See also State v. Newell, 6th
Dist. Erie No. E-08-064, 2009-Ohio-1816, ¶ 23.
{¶ 19} Here, appellant was initially charged with a violation of R.C. 2919.25, a
fourth-degree misdemeanor, which was then amended to a first-degree misdemeanor
under the same statute. Although the amendment did not change the name of the offense,
the amendment did change the penalty or degree of the charged offense, and thus the
identity of the crime charged. Since Crim.R. 7(D) forbids such an amendment, we find
the trial court committed plain error in allowing the amendment.
Second Domestic Violence Charge (Case No. CRB-16-16810-0202)
{¶ 20} The record shows the original complaint charged appellant with domestic
violence, a fourth-degree misdemeanor. The charge was then amended to assault, in
violation of R.C. 2903.13, a first-degree misdemeanor. The amendment changed both the
name of the offense as well as identity of the crime charged; Crim.R. 7(D) forbids such
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an amendment. Thus, we find the trial court committed plain error in allowing the
amendment. However, the error is harmless since the charge was ultimately dismissed.
{¶ 21} In light of the foregoing, appellant’s first assignment of error is well-taken.
Second Assignment of Error
{¶ 22} Appellant argues his due process rights were violated when the trial court
accepted his no contest plea and found him guilty beyond a reasonable doubt as there was
no proof of the elements of the offenses. Appellant contends after entering his plea,
defense counsel waived the reading and call for an explanation of circumstances.
Appellant asserts that during the plea colloquy, the prosecutor did not make any
statement as to what the evidence would have shown if the case proceeded to trial, and
the complaint was not supplemented with additional information from the arresting
officer, who did not testify at the plea or sentencing hearing. Appellant cites to State v.
Arnold, 6th Dist. Lucas No. L-15-1292, 2017-Ohio-5674, in support of his position.
{¶ 23} Appellee acknowledged the Arnold case, but suggested that counseled
pleas with language such as, “no contest, Your Honor, consent to finding, waive reading
of facts or explanation of circumstances” sufficiently waive the statutory rights conferred
by R.C. 2937.07.
{¶ 24} Our resolution of the first assignment of error renders this assignment of
error moot as to the assault conviction. Thus, we will only address appellant’s conviction
for violating the protection order.
8.
{¶ 25} R.C. 2937.07 provides in pertinent part:
A plea to a misdemeanor offense of “no contest” or words of similar
import shall constitute an admission of the truth of the facts alleged in the
complaint and that the judge or magistrate may make a finding of guilty or
not guilty from the explanation of the circumstances of the offense. * * * If
a finding of guilty is made, the judge or magistrate shall impose the
sentence or continue the case for sentencing accordingly. A plea of “no
contest” or words of similar import shall not be construed as an admission
of any fact at issue in the criminal charge in any subsequent civil or
criminal action or proceeding.
{¶ 26} In Arnold, the appellant was issued a traffic citation for speeding, two
counts of operating a vehicle under the influence (“OVI”), and a seat belt offense. Id. at
¶ 2. The appellant refused to submit to a breathalyzer test. Id. The complaint which
charged the appellant with the offenses did not contain any additional comments on the
back of the ticket and was marked as a refusal. Id. at ¶ 3. “There was no notation made
by the arresting officer to support his determination that appellant was operating a vehicle
under the influence.” Id.
{¶ 27} The appellant ultimately entered a no contest plea to the first OVI charge
and “[d]efense counsel consented to a finding and waived the reading and call for an
explanation of circumstances.” Id. at ¶ 4. During the plea colloquy, the prosecutor did
not make a statement as to what the evidence would have shown if the case had
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proceeded to trial, nor did the prosecutor supplement the complaint with information
from the arresting officer. Id. The officer did not testify at the plea or sentencing
hearing. Id. The plea was accepted and the appellant was sentenced. Id.
{¶ 28} The appellant appealed, contending, inter alia, that “the trial court limited
its determination of his guilt or innocence to a review of the complaint which contained
no information to assist in determining whether appellant operated a vehicle on the date
in question while under the influence of alcohol.” Id. at ¶ 8. We found:
The record in this case is silent as to any proof of the elements of
[OVI]. Further, the state does not dispute appellant’s assertions that the
complaint contained no additional comments regarding appellant’s claimed
violation of [OVI], that the arresting officer did not testify at either the plea
or sentencing hearing, and that the trial court simply accepted the waiver of
a reading of an explanation of circumstances.
Based on the foregoing, this court finds that the trial court lacked
sufficient evidence to find appellant guilty of the offense of [OVI]. Id. at
¶ 9-10.
{¶ 29} Here, upon review, the complaint charging appellant with violating the
protection order contained a statement from the victim where she swore that appellant:
called her numerous times; was at her residence and left her a note; went to the victim’s
grandmother’s house when the victim was there; and, pulled up next to her vehicle and
stared at her. However, like in Arnold, the record is silent as to any proof of the elements
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of the charge. Moreover, there is nothing in the record which indicates that the trial court
reviewed or relied upon the complaint in finding appellant guilty of violating the
protection order. We therefore find the trial court lacked sufficient evidence to find
appellant guilty of violating the protection order, in violation of R.C. 2919.27(A)(1).
Accordingly, appellant’s second assignment of error is well-taken.
Third Assignment of Error
{¶ 30} Appellant argues the trial court erred in imposing maximum and
consecutive sentences without taking into consideration the factors set out in R.C.
2929.22(B)(1). Our determination as to appellant’s first and second assignments of error
renders any arguments as to the correctness of maximum, consecutive sentences moot.
Conclusion
{¶ 31} The April 12, 2017 judgment of the Toledo Municipal Court is reversed
and appellant’s convictions for assault and violation of a protection order are vacated.
Pursuant to App.R. 12(B), we enter final judgment acquitting appellant of the offenses of
assault and violation of a protection order. Costs of this appeal are assessed to appellee
pursuant to App.R. 24.
Judgment reversed and vacated.
11.
Toledo v. Williams
C.A. No. L-17-1120
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
12.