[Cite as State v. Smith, 2019-Ohio-4645.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. CT2019-0005
:
MONTE SMITH :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2018-0507
JUDGMENT: REVERSED AND REMANDED
DATE OF JUDGMENT ENTRY: November 7, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX JAMES A. ANZELMO
MUSKINGUM CO. PROSECUTOR 446 Howland Dr.
TAYLOR P. BENNINGTON Gahanna, OH 43230
27 North Fifth Street, P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2019-0005
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Delaney, J.
{¶1} Appellant Monte Smith appeals from the January 2, 2019 Entry of the
Muskingum County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The instant case arose when the Central Ohio Drug Enforcement Task
Force made a series of controlled buys of methamphetamine and marijuana from
appellant between April 4 and May 25, 2018, in Muskingum County.
{¶3} Appellant was charged by indictment with multiple counts of drug trafficking,
permitting drug abuse, and drug possession. The charges were accompanied by juvenile,
major drug offender, and forfeiture specifications. On November 5, 2018, appellant
appeared before the trial court to change his previously-entered pleas of not guilty to ones
of no contest to the following amended charges: Count I, trafficking in methamphetamine
pursuant to R.C. 2925.03(A)(1), a felony of the third degree; Count III, trafficking in
methamphetamine pursuant to R.C. 2025.03(A)(1), a felony of the first degree with a
major drug offender specification pursuant to R.C. 2941.1410; and Count V, possession
of marijuana pursuant to R.C. 2925.11(A), a felony of the fifth degree with a forfeiture
specification.
{¶4} Sentencing was deferred and a pre-sentence investigation (P.S.I.) was
ordered.
{¶5} Appellant appeared for sentencing on December 28, 2018, and the trial
court imposed an aggregate prison term of fifteen years.
{¶6} Appellant now appeals from the trial court’s Entry dated January 2, 2019.
{¶7} Appellant raises five assignments of error:
Muskingum County, Case No. CT2019-0005
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ASSIGNMENTS OF ERROR
{¶8} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING
SMITH’S MOTIONS FOR A CONTINUANCE, IN VIOLATION OF SMITH’S DUE
PROCESS RIGHTS PURSUANT TO THE FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.”
{¶9} “II. SMITH DID NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
ENTER A NO CONTEST PLEA, IN VIOLATION OF HIS DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.”
{¶10} “III. THE TRIAL COURT ERRED BY ORDERING SMITH TO PAY FINES.”
{¶11} “IV. SMITH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
{¶12} “V. THE TRIAL COURT IMPOSED AN EXCESSIVE BAIL ON SMITH, IN
VIOLATION OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND SECTION 9, ARTICLE I OF THE OHIO
CONSTITUTION.”
ANALYSIS
II.
{¶13} For ease of analysis, we will address appellant’s assignments of error out
of order.
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{¶14} In his second assignment of error, appellant argues that his plea of no
contest was not knowingly, voluntarily, and intelligently entered. Appellee concedes
appellant was not advised appropriately as to the effect of his no-contest plea. For the
following reasons, we agree and therefore sustain appellant’s second assignment of
error.
{¶15} Appellant asserts that he was not adequately informed that a plea of no
contest is not an admission of guilt but is an admission of the facts contained in the
indictment. We reviewed a similar argument in State v. Gibson, 5th Dist. Muskingum No.
CT2017-0094, 2018-Ohio-4013, appeal not allowed, 154 Ohio St.3d 1500, 2019-Ohio-
345, 116 N.E.3d 154. Crim.R. 11(B) explains the effect of a no-contest plea and provides,
in relevant part:
With reference to the offense or offenses to which the plea is
entered:
***
(2) 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
indictment, information, or complaint, and the plea or admission shall
not be used against the defendant in any subsequent civil or criminal
proceeding.
{¶16} Pursuant to Crim. R. 11, a trial court must follow distinct procedures in
accepting a plea, with the procedures varying based upon whether the offense involved
is a misdemeanor that is a petty offense, a misdemeanor that is a serious offense, or a
felony. State v. Jones, 116 Ohio St.3d 211, 877 N.E.2d 677, 2007-Ohio-6093, ¶ 11.
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Appellant pled no contest to felonies of the first, third, and fifth degrees. Accordingly, the
trial court was required to follow the procedure set forth in Crim. R. 11(C)(2), which
provides:
In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and doing
all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of
the maximum penalty involved, and if applicable, that the defendant
is not eligible for probation or for the imposition of community control
sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no contest,
and that the court, upon acceptance of the plea, may proceed with
judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving the
rights to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant's favor,
and to require the state to prove the defendant's guilt beyond a
reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
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{¶17} Advising the defendant that a guilty plea is a complete admission of guilt,
along with the other information required by Crim.R. 11, ensures that defendants enter
pleas with knowledge of rights that they would forgo and creates a record by which
appellate courts can determine whether pleas are entered voluntarily. State v. Griggs,
103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11, citing State v. Nero, 56 Ohio
St.3d 106, 107, 564 N.E.2d 474 (1990) and State v. Ballard, 66 Ohio St.2d 473, 479–480,
423 N.E.2d 115 (1981). “Pursuant to Crim. R. 11(C), felony defendants are entitled to be
informed of various constitutional and non-constitutional rights, prior to entering a plea.”
Id., ¶ 6. Among the non-constitutional rights, Crim. R. 11(C)(2)(b) requires the trial court
to inform the defendant of the effect of his guilty or no-contest plea and to determine
whether he understands that effect. State v. Jones, supra at ¶ 12; Griggs, supra at ¶ 10–
12.
{¶18} In the instant case, before accepting appellant's guilty plea, the trial court
asked whether he understood that he would plead guilty to three separate counts.
Appellant said he “thought it was no contest.” The trial court asked, “You understand that
a plea of no contest is probably going to end up today with—with a finding of guilty? Do
you realize that?” Appellant said yes, but then said he didn’t understand what the trial
court meant by “guilty” because his plea was “no contest.” T. I, 5-6. We agree with
appellant that the trial court did not inform him that his no-contest plea was not an
admission of guilt, but was an admission of the truth of the facts alleged in the indictment.
Therefore, we must conclude that the requirements of Crim. R. 11(C)(2)(b) were not met.
Gibson, supra, 2018-Ohio-4013 at ¶ 11.
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{¶19} The right to be informed a no contest plea is a not an admission of guilt, but
is an admission of the truth of the facts alleged in the indictment is non-constitutional;
therefore, the trial court's failure to inform a defendant of the effect of a no contest plea is
subject to review under a standard of substantial compliance. Gibson, supra at ¶ 12, citing
Nero, supra, 56 Ohio St.3d at 108. While the failure to adequately inform a defendant of
his constitutional rights would invalidate a no contest plea under a presumption it was
entered involuntarily and unknowingly, the failure to substantially comply with non-
constitutional rights will not invalidate a plea unless the defendant thereby suffered
prejudice. See, id. The test for prejudice is “whether the plea would have otherwise been
made.” Id.
{¶20} Having found that the trial court did not inform appellant of the effect of his
no contest plea, we further find a trial court is required to substantially comply with all
three subsections of Crim. R. 11(C)(2). Because the trial court's failure to do so invalidates
appellant's plea, we need not reach the issue of whether appellant suffered prejudice. Id.
{¶21} Appellant’s second assignment of error is sustained. Appellant's
convictions and sentence are vacated and the matter remanded for further proceedings
consistent with the law and this opinion. Gibson, supra, at ¶ 15.
I., III., and IV.
{¶22} In his first assignment of error, appellant argues the trial court should have
granted his second motion to continue the jury trial.
{¶23} In his third assignment of error, appellant argues the trial court erred in
ordering him to pay fines.
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{¶24} In his fourth assignment of error, appellant argues he received ineffective
assistance of counsel because defense trial counsel was “suspended in the middle of
proceedings”. The record indicates that, after appellant entered his no-contest pleas,
defense trial counsel filed a motion to continue the sentencing hearing and to withdraw
from the case, in part because counsel “ha[d] been suspended from the practice of law
for the next six months and is unable to attend the sentencing hearing.”
{¶25} These assignments of error are rendered moot by our resolution of
appellant’s second assignment of error vacating the convictions and sentence, and
accordingly are overruled.
V.
{¶26} In his fifth assignment of error, appellant argues the trial court imposed
excessive bail.
{¶27} In general, persons accused of crimes are bailable by sufficient sureties,
and “[e]xcessive bail shall not be required.” Section 9, Article I, Ohio Constitution. The
proper remedy for excessive bail is habeas corpus, not appeal from the defendant’s
conviction.
{¶28} Habeas corpus is the proper remedy to raise the claim of excessive bail in
pretrial-release cases. Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744 N.E.2d 763,
citing State ex rel. Smirnoff v. Greene, 84 Ohio St.3d 165, 168, 702 N.E.2d 423 (1998);
In re DeFronzo, 49 Ohio St.2d 271, 273, 361 N.E.2d 448 (1977), citing State v. Bevacqua,
147 Ohio St. 20, 67 N.E.2d 786 (1946); Bland v. Holden, 21 Ohio St.2d 238, 257 N.E.2d
397 (1970); Davenport v. Tehan, 24 Ohio St.2d 91, 264 N.E.2d 642 (1970).
{¶29} Thus, appellant may not raise this issue on direct appeal.
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{¶30} Appellant’s fifth assignment of error is overruled.
CONCLUSION
{¶31} Appellant’s second assignment of error is sustained and his remaining
assignments of error are overruled. Appellant’s no-contest pleas, convictions, and
sentence are vacated and this matter is remanded to the trial court for further
proceedings.
By: Delaney, J.,
Gwin, P.J. and
Hoffman, J., concur.