Opinion
23 MA 0066
07-12-2024
STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL D. ALBERINI, Defendant-Appellant.
Atty. John N. Zomoida Jr., Law Director, City of Struthers, for Plaintiff-Appellee Atty. J. Gerald Ingram, Ingram, Cassese & Grimm, LLP, for Defendant-Appellant
Criminal Appeal from the Struthers Municipal Court of Mahoning County, Ohio Case No. CRB 2200331
Atty. John N. Zomoida Jr., Law Director, City of Struthers, for Plaintiff-Appellee
Atty. J. Gerald Ingram, Ingram, Cassese & Grimm, LLP, for Defendant-Appellant
BEFORE: Cheryl L. Waite, Carol Ann Robb, Judges, and Craig R. Baldwin, Judge of the Fifth District Court of Appeals, Sitting by Assignment
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} Appellant Michael D. Alberini was charged in Struthers Municipal Court with violating a domestic violence civil protection order (DVCPO), a first degree misdemeanor. Appellant entered a plea of no contest to the charge. The trial court, however, failed to engage in a colloquy with Appellant as to his plea or advise him of the effect of pleading no contest as required by Crim.R. 11(E). The state concedes the trial court failed to substantially comply with Crim.R. 11(E) and committed reversible error. Appellant's conviction and sentence are vacated, his no contest plea is withdrawn, and the case is remanded to the trial court for further proceedings.
Case History and Facts
{¶2} On September 30, 2022, the Struthers Municipal Court issued a DVCPO against Appellant in favor of his ex-wife. Following this, on October 13, 2022, Appellant arranged the delivery of a check to his ex-wife, but wrote threatening words on the check. As a result, he was charged on October 19, 2022 with violating a protection order pursuant to R.C. 2919.27(A)(1), a first degree misdemeanor. On March 20, 2023, Appellant entered into a "Stipulated Factual Basis for Plea of No Contest." The case was scheduled for trial that day, but instead became a change of plea hearing. The court accepted Appellant's no contest plea and the stipulated facts, but failed to address Appellant as to any other aspect of his plea of no contest. Most significantly, the court did not explain the effect of this plea. The case was continued to April 24, 2023 for sentencing. Following statements from the prosecutor and the victim, and after a brief allocution by Appellant, the court sentenced Appellant to 180 days in jail, with 135 days suspended. Thirty days of the sentence were permitted to be served by means of house arrest. The court ordered a $500 fine and court costs. The final order of sentence was filed that same day. This timely appeal was filed on May 23, 2023. Appellant raises one assignment of error on appeal. The state has conceded error and agrees that the conviction and sentence should be vacated.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN NOT PROPERLY ADVISING APPELLANT OF THE EFFECT OF HIS NO CONTEST PLEA AND FURTHER FAILING TO MAKE ANY FINDING OF GUILT THERON.
{¶3} Appellant argues that before accepting a no contest plea to a misdemeanor for a petty offense, the court was required to inform him of the effect of the plea. State v. Pirozak, 2018-Ohio-339, ¶ 7 (7th Dist). This requirement is found in Crim.R. 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 pleas without first informing the defendant of the effect of the plea of guilty, no contest, and not guilty."
{¶4} Although the phrase "the effect of the plea" is not defined in the rules, it has been interpreted to mean that the trial court must inform the defendant of the effect of the specific type of plea, pursuant to Crim.R. 11(B). State v. Jones, 2007-Ohio-6093, ¶ 25. Crim.R. 11 (B)(2) states: "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." Because Appellant pleaded no contest, the court was required to explain to Appellant the content of Crim.R. 11(B)(2). As the trial judge did not do this, Appellant's plea was invalid.
{¶5} The trial court must substantially comply with the requirements of Crim.R. 11 (E) in petty offense cases. State v. West, 2018-Ohio-5386, ¶ 19 (7th Dist.). A complete failure by the trial court to inform a defendant of the effect of a no contest plea constitutes reversible error, and prejudice need not be shown. Cleveland v. Martin, 2023-Ohio-448, ¶ 20 (8th Dist.). Hence, no prejudice to Appellant was required to be demonstrated in this case.
{¶6} This record reveals the trial court did not address Appellant at all during the change of plea hearing. No mention was made of the effect of a no contest plea. The state concedes that this is reversible error. Therefore, Appellant's assignment of error has merit and is sustained.
Conclusion
{¶7} Appellant entered a no contest plea to one misdemeanor count of violating a DVCPO. At the change of plea hearing, the trial court failed to notify Appellant of the effect of his no contest plea pursuant to Crim.R. 11 (B) and (E). The state has conceded the error. Appellant's sole assignment of error is sustained, his conviction and sentence are vacated, the plea withdrawn, and the case is hereby reversed and remanded to the trial court for further proceedings.
Robb, P.J. concurs.
Baldwin, J. concurs.
For the reasons stated in the Opinion rendered herein, Appellant's assignment of error is sustained. His conviction and sentence are vacated and Appellant's plea is hereby withdrawn. It is the final judgment and order of this Court that the judgment of the Struthers Municipal Court of Mahoning County, Ohio, is reversed. This cause is remanded to the trial court for further proceedings according to law and consistent with this Court's Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.