State v. Lusane

[Cite as State v. Lusane, 2020-Ohio-4106.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2019-P-0115
- vs - :

MATTHEW M. LUSANE, :

Defendant-Appellant. :

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2005 TRC 11364.

Judgment: Affirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).

Matthew M. Lusane, pro se, P.O. Box 1502, 55 East Glenwood Avenue, Akron, Ohio
44309 (Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Matthew M. Lusane, appeals his conviction for operating a motor

vehicle while intoxicated, under R.C. 4511.19(A)(1). We affirm.

{¶2} On August 28, 2005, appellant was stopped for driving 80 m.p.h. in a 65-

m.p.h. zone. He was ultimately cited for speeding, operating a vehicle while intoxicated

(“OVI”), and two other traffic offenses.

{¶3} A pretrial conference was held on November 1, 2005 and a report was filed
stating that appellee, the State of Ohio, offered to dismiss the remaining three charges in

return for a guilty plea to the OVI. The matter was set for a pretrial on December 27, 2005

and jury trial January 4, 2006.

{¶4} On December 27, 2005, the trial court issued two judgments. One states

that appellant entered a guilty plea to the OVI charge and dismisses the remaining counts.

The second imposes a 30-day jail term, a driver’s license suspension for two years, and

a $550 fine and court costs.

{¶5} Thereafter, appellant executed multiple documents acknowledging he had

been ordered to pay a fine and court costs as a result of the guilty plea. For example, on

December 27, 2005, the date he was sentenced, he signed a computer printout stating

that he owed a total of $616. Nine months later, in September 2006, he filed a signed

motion requesting a payment plan for the remaining balance from this case and four

others. In November 2008, he signed a judgment in which the trial court allowed him to

perform community work service in lieu of paying the balance.

{¶6} Beginning in April 2011, appellant filed multiple motions seeking to have his

plea vacated on the grounds that the trial court failed to conduct a plea hearing prior to

accepting it. All such motions were denied. Then, in February 2019, appellant moved

the trial court to issue a revised sentencing entry because the sentencing entry failed to

set forth both the fact of conviction and the sentence. The trial court overruled this motion.

{¶7} In State v. Lusane, 11th Dist. Portage No. 2019-P-0027, 2019-Ohio-3549,

we reversed the trial court’s ruling on the motion to revise, holding that the December 27,

2005 sentencing judgment does not satisfy Crim.R. 32(C) because it fails to set forth both

the fact of conviction and the sentence. Accordingly, we remanded for trial court to issue

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a single entry satisfying both requirements. Id, at ¶ 5-6.

{¶8} Upon remand, the trial court granted appellant’s motion to revise, stated he

pled guilty to OVI, found him guilty of OVI, and imposed the same sentence.

{¶9} Appellant appeals raising four assignments of error:

{¶10} “[1.] The trial court erred by entering conviction and sentence absent a plea

or trial as required under the United States and Ohio Constitutions.

{¶11} “[2.] The trial court erred by failing to comply with Ohio Crim.R. 22 and 44(C)

where appellant never waived his right to counsel.

{¶12} “[3.] The trial court erred by imposing sentence without appellant being

present in open court pursuant to Crim.R. 43.

{¶13} “[4.] The trial court erred by failing to comply with Crim.R. 11(D) and Traf.R.

10(C) where appellant never entered a plea at all.”

{¶14} Appellant’s first and fourth assignments assert related arguments. He

contends that his OVI conviction must be reversed because, although a judgment entry

states he pled guilty, no plea hearing was held.

{¶15} As noted, the trial court’s December 27, 2005 judgment entry states that

appellant pled guilty to the OVI charge. Appellant requested a complete transcript,

including any plea hearing that may have been held. The court reporter reviewed her

records and found she did not take any notes for a hearing involving appellant that day.

Therefore, the record does not contain a transcript because one cannot be created. The

state argues that the regularity of the trial proceedings must be presumed: i.e., that a

change-of-plea hearing was held on that date, that appellant entered a valid guilty plea,

and that the trial court accepted it.

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 {¶16} As stated, appellant stands convicted of operating a motor vehicle while

intoxicated under R.C. 4511.19(A)(1). Since this conviction was appellant’s third OVI

offense within six years, it is considered an unclassified misdemeanor. See R.C.

4511.19(G)(1)(c) (2004 H 163, eff. 9-24-04). Furthermore, since the trial court could have

imposed a prison term of more than six months, a third OVI is a serious misdemeanor

offense under Crim.R. 2(C). See State v. Faulkner, 2d Dist. Champaign No. 2013-CA-

43, 2015-Ohio-2059, ¶ 10-11.

{¶17} Before accepting a plea of guilty or no contest in a misdemeanor traffic case

involving a serious offense, a trial court is obligated to inform the defendant of the effect

of those pleas and determine whether he is entering his plea voluntarily. Traf.R. 10(C).

The requirements of Crim.R. 11(D) are identical. Although not applicable here, if a

misdemeanor traffic case is a petty offense, the court is no longer required to determine

if the guilty or no contest plea is being made voluntarily but is still required to explain the

effect of the plea. Traf.R. 10(D).

{¶18} “A judge’s duty to a defendant before accepting his guilty or no contest plea

is graduated according to the seriousness of the crime with which the defendant is

charged. Crim.R. 11 distinguishes between ‘[p]leas of guilty and no contest in felony

cases’ (Crim.R. 11[C]), ‘[m]isdemeanor cases involving serious offenses’ (Crim.R. 11[D]),

and ‘[m]isdemeanor cases involving petty offenses’ (Crim.R. 11{E]). The requirements

placed upon a court take steady steps that culminate in Crim.R. 11(C).

{¶19} “In all cases, the judge must inform the defendant of the effect of the plea.

In felony cases and misdemeanor cases involving serious offenses, a judge must also

‘addres[s] the defendant personally’ and ‘determin[e] that the defendant is making the

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plea voluntarily.’” State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-635, 788 N.E. 2d 635,

¶ 25-26.

{¶20} Prior to Watkins, multiple appellate courts had held that in explaining the

effect of a guilty or no contest plea to a defendant under Crim.R. 11(E), a trial court was

also required to inform him of the four basic constitutional rights being waived as a result

of entering the plea. See Toledo v. Chiaverini, 11 Ohio App.3d 43, 463 N.E.2d 56, (6th

Dist.); State v. Hileman, 12th Dist. Butler No. CA96-10-219, 1998 WL 161386, *2 (Apr. 6,

1998); City of Twinsburg v. Corporate Sec., Inc., 9th Dist. Summit No. 17265, 1996 WL

73370, *5 (Feb. 21, 1996). This line of cases further held, consistent with Boykins v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), compliance with this

requirement cannot be presumed from a silent record, and the state has an affirmative

duty of showing in the record that a valid waiver of those rights occurred. See State v.

Brown, 11th Dist. Lake No. 96-L-026, 19997 WL 269316, *3 (May 2, 1997).

{¶21} In Watkins, the Supreme Court overruled this line of cases:

{¶22} “In felony cases, the Ohio and United States Constitutions require that a

defendant entering a guilty plea be ‘informed in a reasonable manner at the time of

entering his guilty plea of his rights to a jury trial and to confront his accusers, and his

privileges against self-incrimination, and his right of compulsory process for obtaining

witnesses on his behalf.’ State v. Ballard (1981), 66 Ohio St.2d 473, 478, 20 O.O.3d 397,

423 N.E. 2d 115. Crim. R. 11(C) sets forth how a judge should explain those rights to a

defendant. However, there are no such constitutionally mandated informational

requirements for defendants charged with misdemeanors. The protections that the

Criminal Rules provide to felony defendants should not be read into the Ohio Traffic

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Rules, which deal only with misdemeanor offenses. Accordingly, we find that where a

defendant charged with a petty misdemeanor traffic offense pleads guilty or no contest,

the trial court complies with Traf.R. 10(D) by informing the defendant of the information

contained in Traf.R. 10(B).” Watkins, 2003-Ohio-2419, at ¶ 28.

{¶23} Therefore, in taking a guilty plea for a serious misdemeanor offense under

Crim.R. 11(D) or Traf.R. 10(C), a trial court has no obligation to provide an explanation of

the constitutional rights the defendant is waiving by entering a plea. State v. Dobbins, 2d

Dist. Miami No. 2006-CA-18, 2007-Ohio-1665, ¶ 56. Instead, there are only two

requirements a court must satisfy in addressing a defendant: (1) inform him of the effect

of the plea, pursuant to Crim.R. 11(B) or Traf.R. 10(B); and (2) determine whether he is

making the plea voluntarily.

{¶24} To satisfy the “effect” requirement, a trial court can restate the definition of

guilty plea, as delineated in Crim.R. 11(B)(1) or Traf.R. 10(B)(1). State v. Jones, 116

Ohio St.3d 211, 2007-Ohio-6093, 677 N.E. 2d 677, ¶ 25. Those provisions define a guilty

plea as a complete admission of the defendant’s guilt.

{¶25} In regard to the “voluntary” requirement, two points are generally considered

in determining whether the defendant is acting voluntarily in entering a guilty plea:

{¶26} “‘A plea may be involuntary either because the accused does not

understand the nature of the constitutional protections that he is waiving, * * * or because

he has such an incomplete understanding of the charge that his plea cannot stand as an

intelligent admission of guilt. Without adequate notice of the nature of the charge against

him, or proof that he in fact understood the charge, the plea cannot be voluntary in this

latter sense.’” State v. Staten, 7th Dist. Mahoning No. 03 MA 187, 2005-Ohio-1350, ¶ 44,

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quoting Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 49 L.Ed.2d 108, fn. 13.

{¶27} Pursuant to Watkins, when the underlying case involves misdemeanor

offenses, a trial court is not required to inform the defendant of the constitutional rights he

is waiving by pleading guilty. Informing of constitutional rights is not required to establish

a voluntary plea. To this extent, a guilty plea will be deemed voluntary when the

defendant has been informed of the nature of the charged offenses and the maximum

penalties involved and has convinced the trial court that his plea is not induced by threats,

coercion, or intimidation. See State v. Crable, 7th Dist. Belmont No. 04 BE 17, 2004-

Ohio-6812, ¶ 12-13; Crim.R. 11(C)(2)(a).

{¶28} The previously-cited line of cases placed the burden of producing the plea

hearing on the state, because it bore the burden of establishing a waiver of constitutional

rights. See Hileman, 1998 WL 161386, at *2; Corporate Sec., 1996 WL 73370, at *5.

Given that a voluntary determination in a serious misdemeanor case does not require a

showing that an appellant affirmatively waived constitutional rights, the state has no

burden

{¶29} In State v. Armstrong, 2017-Ohio-8801, 101 N.E.3d 56 (11th Dist.), the

defendant contested the trial court’s compliance with Crim.R. 11(C) in accepting his guilty

plea as part of his argument that his conviction must be vacated as void. We concluded

that the issue could not be addressed, stating:

{¶30} “‘To prevail on an appeal, an appellant must affirmatively demonstrate,

through reference to the record of the proceeding before the trial court, that the trial court

committed error.’ Buckley v. Ollila, 11th Dist. Trumbull No. 98-T-0177, 2000 WL 263739,

*1 (Mar. 3, 2000) (citation omitted); see also App.R. 9(B).’

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 {¶31} “Appellant has not provided a transcript of the plea hearing by which we

could review the trial court’s compliance with Crim.R. 11(C). Absent a transcript, we must

presume the regularity of the proceedings. State v. Hundzsa, 11th Dist. Portage No.

2008-P-0012, 2008-Ohio-4985, 2008 WL 4384180, ¶ 18 (citation omitted).” Id. at ¶ 16-

17.

{¶32} Here, the record does not contain a transcript of a December 27, 2005 plea

hearing. More importantly, appellant has not provided an App.R. 9(C) statement of the

proceedings, which can act as a substitute for a transcript when the transcript is not

available. In the absence of confirmation by the trial court through a 9(C) statement as

to what actually occurred on December 27, 2005, we must presume the regularity of the

trial proceedings. That is, it must be presumed that a plea hearing was held, and the trial

court complied with Traf.R. 10(C) in accepting his guilty plea.

{¶33} The first and fourth assignments are without merit.

{¶34} Under his second assignment, appellant maintains that the OVI conviction

must be reversed because there is no valid waiver of his constitutional right to counsel.

However, appellant acknowledges that he was represented by counsel at all relevant

times and that his counsel signed a criminal pretrial report dated December 27, 2005,

stating that a plea agreement had been reached. Given that appellant was represented,

a waiver was not required.

{¶35} Under his third assignment, appellant contends the trial court violated

Crim.R. 43 by imposing his sentence without conducting an oral hearing at which he was

present. He notes that upon remand after our decision in Lusane, 2019-Ohio-3549, the

trial court did not hold a hearing before issuing the final sentencing judgment. However,

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in light of our limited holding in the prior appeal, a new hearing was not required. The

only act necessary to finish the case was the issuance of a single judgment setting forth

the fact of conviction and sentence. Moreover, in the absence of a transcript or an App.R.

9(C) statement of the proceedings, appellant is unable to demonstrate that a hearing was

conducted prior to the imposition of his sentence on December 27, 2005. Appellant fails

to establish a Crim.R. 43 violation. His third assignment is also without merit.

{¶36} The judgment of the Portage County Municipal Court, Ravenna Division, is

affirmed.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

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