Opinion
Nos. 72-245 and 72-287
Decided December 13, 1972.
Appeal — No bill of exceptions — Errors complained of not demonstratable — Effect.
APPEALS from the Court of Appeals for Cuyahoga County.
On May 24, 1970, defendant was charged by the city of East Cleveland with operating a motor vehicle in a reckless manner (case No. 72-245), and with negligently damaging certain city property (case No. 72-287). On June 10, 1970, defendant appeared in the East Cleveland Municipal Court, without representation by counsel, and pleaded guilty to both charges. The court imposed a fine on both charges, but suspended the fine on the property damage charge upon the condition that defendant pay for the damage to city property. Both the fine and damages were paid by the defendant.
On June 12, 1970, in case No. 72-245, defendant filed motions for new trial and to vacate judgment, on the ground that defendant pleaded guilty without having been advised of his right to counsel. The motions were overruled. Defendant timely filed a notice of appeal and filed in the Court of Appeals a transcript of the trial court's docket and journal entries, but failed to file a bill of exceptions. On June 26, 1970, defendant filed similar motions in case No. 72-287.
The Court of Appeals reversed the judgment in case No. 72-245, holding that the record before the court was silent as to whether defendant was advised of his rights in accordance with R.C. 2937.02; that waiver of such right may not be presumed from a silent record. The city appealed this judgment and defendant cross-appealed.
In case No. 72-287, the Court of Appeals dismissed the appeal for the reason that, neither the motion for new trial or to vacate judgment having been timely filed, the appellate court lacked jurisdiction.
The causes are now before this court pursuant to allowance of motions to certify the records.
Mr. Henry B. Fischer, director of law, for the city of East Cleveland.
Messrs. Mancino, Mancino Mancino and Mr. Paul Mancino, Jr., for defendant, Jerome Dragonette.
We affirm the judgment of the Court of Appeals in case No. 72-287 (property damage), for the reason stated by the Court of Appeals.
In case No. 72-245 (reckless operation), the record before the Court of Appeals consisted only of the transcript of the Municipal Court's docket and journal entries, and that transcript failed to demonstrate the error complained of, i.e., error in accepting defendant's plea of guilty. This being so, there is nothing presented by defendant upon which a reviewing court can determine whether error was committed by the trial court.
In both cases, issues were created as to what transpired in the hearings before the trial court, and statements made by counsel in a motion for new trial do not waive the necessity to file a bill of exceptions as to the claimed error. Defendant could have prepared a narrative bill of exceptions, or stipulated with the state as to what transpired in the Municipal Court hearings.
It is necessary that a bill of exceptions be filed and allowed by the trial court exemplifying the facts necessary to determine the issues presented. State, ex rel. Cliffview Land Co., v. Maloney (1956), 166 Ohio St. 45; State, ex rel. Heights Jewish Center, v. Haake (1956), 165 Ohio St. 547. A party, having the duty of instituting the preparation of a record for the purpose of appeal, may not sit idly by and then predicate reversal upon the basis of a "silent record."
As a matter of fact, the trial judge's journal entry overruling the motion for new trial and to vacate judgment specifically stated that:
"The Court on two separate occasions specifically advised the defendant of his right to counsel and said defendant advised the Court of his desire to proceed without counsel."
In Lee v. Benedict (1910), 82 Ohio St. 302, this court held that:
"To enable a reviewing court to properly pass upon alleged errors at the hearing * * * to vacate a judgment * * * for irregularity in obtaining such judgment, there should be presented a record including a finding of facts, or a bill of exceptions showing all the evidence given at the hearing."
We reverse the judgment of the Court of Appeals in case No. 72-245 (reckless operation) as pertains to the city's appeal, and affirm that judgment as pertains to defendant's cross-appeal.
Judgment accordingly.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.