[Cite as State v. Pirozak, 2018-Ohio-339.]

STATE OF OHIO, HARRISON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 17 HA 0004 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

VENDELA PIROZAK ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court 

 of Harrison County, Ohio 

Case No. CRB 16-349 

JUDGMENT: Reversed. 

Conviction Vacated. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. T. Owen Beetham 

Harrison County Prosecutor 

Atty. Jack L. Felgenhauer 

Assistant Prosecuting Attorney 

111 W. Warren Street 

P.O. Box 248 

Cadiz, Ohio 43907 

For Defendant-Appellant: Atty. Robert Aaron Miller 

329 North Fourth Street 

Steubenville, Ohio 43952 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: January 25, 2018
[Cite as State v. Pirozak, 2018-Ohio-339.]

WAITE, J. 

{¶1} Appellant Vendela Pirozak appeals her conviction in Harrison County 

Court following her no contest plea to one count of possession of drug paraphernalia, 

a fourth degree misdemeanor. Appellant argues on appeal that her plea was not 

made knowingly, intelligently and voluntarily. She requests that her plea be vacated 

and the matter remanded. A review of the record before this Court reveals 

Appellant’s plea was not made knowingly, intelligently and voluntarily. This record 

also shows the trial court did not properly comply with the mandates of Crim.R. 11 in 

accepting Appellant’s no contest plea in this misdemeanor action. Appellant’s 

assignments of error have merit and the judgment of the trial court is reversed. 

Appellant’s conviction is vacated. 

Factual and Procedural History 

{¶2} Appellant was cited for possession of drug paraphernalia in violation of 

R.C. 2925.14 on November 30, 2016. On December 5, 2016 Appellant entered a 

plea of not guilty to the charge. A pre-trial hearing was held on December 22, 2016. 

The matter was continued after Appellant indicated she wished to obtain her own 

counsel rather than have the court appoint counsel for her. A second pre-trial 

conference was held on March 30, 2017. Appellant appeared without counsel and 

told the court that she did not obtain counsel and did not want court appointed 

counsel. Pre-trial negotiations occurred on the record between the court, the state 

and Appellant. The state recommended a sentence of thirty days in jail with 30 days 

suspended, a fine of $250 and six months of supervised probation. Appellant stated 

that she agreed with the sentence. The court presented a written judgment entry to 
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Appellant, who signed a waiver of counsel and entered a written plea of no contest. 

The court found Appellant guilty of possession of drug paraphernalia and sentenced 

her to the agreed-upon thirty (30) days in jail with thirty days suspended, a $250 fine 

and six months of supervised probation. The judgment entry was filed on March 30, 

2017. 

{¶3} Appellant filed a pro se notice of appeal and request for stay of her jail 

sentence on March 31, 2017, alleging she was “completely misinformed by the lower 

court” and that she was told that because her crime involved a minor misdemeanor 

she was not subject to jail time. (Emphasis deleted.) (3/31/17 Appellant’s Notice of 

Appeal of Criminal Conviction and Request for Stay of Jail Sentence and Probation, 

pp. 1-2.) As the trial court had already suspended her sentence and set bail for 

Appellant in a judgment entry dated April 18, 2017, this Court overruled her stay 

request. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED BY ACCEPTING A PLEA THAT WAS 

NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED BY FAILING TO NOTIFY APPELLANT 

OF HER RIGHTS PURSUANT TO CRIMINAL RULE 11, OHIO RULES 

OF CRIMINAL PROCEDURE. 

{¶4} This appeal arises from a no contest plea to a misdemeanor charge 

before the Harrison County Court. Appellant contends that her plea was not valid 
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because it was not knowingly, intelligently and voluntarily entered and that the trial 

court erred by failing to comply with Crim.R. 11. 

{¶5} Initially it must be noted that although Appellant presents two 

assignments of error, she argues these together. Pursuant to App.R. 16(A)(7), 

Appellant must separately argue each assignment in order for separate assignments 

to be considered. Consolidation of arguments for separate assignments of error is 

not permitted. However, in the interest of justice, we will overlook Appellant’s error. 

{¶6} Appellant was charged with violating R.C. 2925.14, a fourth degree 

misdemeanor, which carries a penalty of not more than a thirty day jail sentence. 

Under Crim.R. 2(C), a “serious offense” includes any misdemeanor for which the 

penalty prescribed by law includes confinement for more than six months. Since the 

offense to which Appellant was charged does not fall within this classification, her 

offense is classified as a petty offense pursuant to Crim.R. 2(D). All misdemeanors 

classified as petty offenses are governed by Crim.R. 11(E) which states: 

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. 

{¶7} While Crim.R. 11(E) requires the trial court to explain the effect of the 

plea prior to accepting that plea, rigid adherence is not necessary. Garfield Heights 

v. Mancini, 121 Ohio App.3d 155, 157, 669 N.E.2d 132 (1997). Substantial 

compliance is sufficient as long as, under the totality of the circumstances, a 
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defendant subjectively understands the implications of the plea and the rights being 

waived. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The trial 

court must engage in a meaningful dialogue with the defendant to ensure that the 

defendant subjectively understands the plea and the implications of waiving these 

rights, particularly when the court is dealing with a misdemeanor offense where 

imprisonment is an option. State v. Richard, 113 Ohio App.3d 141, 144, 680 N.E.2d 

667 (1996). Although the phrase “the effect of the plea” is not defined under the 

rules, this Court has held that the trial court must: 

plainly advise a defendant that by entering his plea he is essentially 

extinguishing his right to a trial by jury or to the court, the burden upon 

the prosecution to prove his guilt beyond a reasonable doubt, his right 

to cross-examine the witnesses called against him, his right to testify, 

his right to compulsory process, and his privilege against selfincrimination. 

State v. Malek, 7th Dist. No. 02 CA 97, 2002-Ohio-6431, ¶ 9. 

{¶8} The trial court must also advise the defendant that once a no contest 

plea is entered, the trial court will make a finding of guilt or innocence based on an 

explanation of the circumstances as they are presented in the complaint, by the 

prosecution, or by the complainant. Id. at ¶ 10. We have held that failure of the trial 

court to inform the defendant of the effects of the plea and to comply with the 

mandates of the rule constitutes prejudicial error. Id. at ¶ 11. 
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{¶9} The burden of demonstrating compliance with the criminal rules is on 

the trial judge, who must conduct a meaningful dialogue with the defendant before a 

no contest plea is accepted. State v. Luhrs, 69 Ohio App.3d 731, 735, 591 N.E.2d 

1251 (1990). A defendant’s written waiver does not preclude the trial court’s 

responsibility to explain to the defendant the fundamental rights involved and the 

effect of waiving those rights. Id. 

{¶10} In the instant matter, the trial court does not discuss Appellant’s 

fundamental rights or constitutional guarantees on the record. Moreover, no mention 

of a finding of guilt is ever made. The record is similarly devoid of any comments by 

Appellant regarding the constitutional rights she is waiving or any indication that the 

trial court engaged her at all in a meaningful dialogue. Hence, a review of the record 

here reveals that the trial court did not comply with the Crim.R. 11 mandates prior to 

accepting Appellant’s plea. 

{¶11} More importantly, this record shows that Appellant pleaded no contest 

to the charge. R.C. 2937.07 also requires the trial court to obtain an explanation of 

the circumstances surrounding the crime before making a finding of guilt when there 

is a no contest plea. R.C. 2937.07 provides, in part: 

A plea to a misdemeanor offense of “no contest” * * * shall constitute an 

admission of the truth of the facts alleged in the complaint and * * * the 

judge * * * may make a finding of guilty or not guilty from the 

explanation of the circumstances of the offense. 
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{¶12} The trial court’s duties found in R.C. 2937.07 are considered to create a 

substantive right, and the requirement of scrupulous adherence to these duties is not 

superseded by Crim.R. 11. City of Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151, 

459 N.E.2d 532 (1984), syllabus. 

{¶13} “Appellate review of a trial court’s finding of guilt on a no contest plea to 

a misdemeanor is de novo.” State v. Erskine, 2015-Ohio-710, 29 N.E.3d 272, ¶ 10. 

In reviewing the record before this Court, “[t]he question is not whether the court 

could have rendered an explanation of circumstances sufficient to find appellant 

guilty based on the available documentation but whether the court made the 

necessary explanation.” Bowers at 151. 

{¶14} A plea of no contest cannot form the basis for a finding of guilt absent 

an explanation of circumstances. Bowers at 150. The explanation of circumstances 

is required in order to support a no contest plea. It serves to ensure that the trial 

court’s finding of guilt is not made in a perfunctory manner, and must be done before 

the defendant is found guilty or not guilty. Id. 

{¶15} In the instant case an arraignment was held on December 5, 2016 at 

which time the record shows Appellant pleaded not guilty, although she later entered 

a written no contest plea. Appellee contends that at her arraignment the trial court 

advised Appellant “of the rights of which she complains she was not advised.” 

(8/17/17 Appellee’s Brf., p. 2.) A transcript of that proceeding was not made a part of 

this record. It is incumbent on the Appellant to insure an adequate record is made 

available to establish her arguments on appeal. State v. Bugaj, 7th Dist. No. 06-BE-
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23, 2007-Ohio-964, ¶ 11, citing State v. Funkhouser, 7th Dist. No. 02-BA-4, 2003-

Ohio-697, ¶ 13. Absent a transcript of those proceedings, this Court must presume 

the regularity of the proceedings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 

197, 199, 400 N.E.2d 384 (1980). 

{¶16} Notwithstanding the lack of an arraignment hearing transcript, two pretrial conferences were held on December 22, 2016 and March 30, 2017. Transcripts 

from both of these proceedings are a part of the record for our review. The first pretrial hearing consisted of a discussion about whether Appellant would be represented 

by appointed counsel. Appellant informed the court that she had obtained counsel, 

who could not be present that day. The trial court continued the pre-trial to allow 

Appellant’s counsel to be present. 

{¶17} On March 20, 2017 the second pre-trial hearing was held. Appellant 

informed the court that she did not have counsel present and that she did not wish to 

be represented by counsel, either her own or court appointed. After the court 

reaffirmed that Appellant did not wish to be represented by counsel in any form, the 

following exchange took place: 

THE COURT: You are charged with possession of drug paraphernalia. 

[APPELLANT]: Okay 

THE COURT: So [prosecutor], anything from the State with respect to 

[Appellant’s] case? 
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[THE PROSECUTOR]: Try to get up to date on your case here. I 

remember now. This was like a crack pipe. That’s why you weren’t 

given an opportunity for diversion. 

Do you know, Judge, if there’s a mandatory license suspension on the 

drug paraphernalia still or did it fall away with - - 

(3/30/17 Tr., p. 3.) 

{¶18} A discussion was then held on the record about whether Appellant 

would be subject to a driver’s license suspension and whether Appellant would have 

trouble passing a drug and alcohol test. Appellant indicated that she wanted to serve 

jail time to “get it over with” rather than lose her driver’s license. (3/30/17 Tr., p. 5.) 

At the end of these discussions, the state proceeded to make a sentencing 

recommendation of thirty days in jail, suspended, a fine of $250 and six months of 

supervised probation. The following exchange then occurred: 

THE COURT: Okay. Come on up here and I’ll go over this with you. 

[APPELLANT]: Okay 

THE COURT: By signing right there you’re indicating you understand 

you could’ve been represented by an attorney in these proceedings but 

chose not to be. 

[APPELLANT]: Okay 

THE COURT: So if you’ll sign right there please. 
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[APPELLANT]: And then are you going to tell me how often I have to 

come? 

THE COURT: Yeah, we are. And if you’ll sign right there. That’s your 

plea. 

[APPELLANT]: Okay 

THE COURT: And when you get this back, on the back, I’ll show you 

where, this space is going to be filled in right here and it’s going to tell 

you when your first meeting with the probation officer is. 

“* * * 

THE COURT: Okay. Any questions? 

[APPELLANT]: No. 

(3/30/17 Tr., pp. 8-9.) 

{¶19} It is at this hearing that Appellant is apparently entering her plea, not at 

her arraignment. It is apparent that the trial court accepts her plea, and yet has not 

conducted any of the necessary Rule 11 dialogue. The transcript of these 

proceedings also shows that no inquiry into the circumstances of the offense was 

made and no explanation was provided. Similarly, other than the initial citation, there 

is no other evidence in the record regarding the circumstances surrounding this 

crime. There is no requirement that the trial court judge read the explanation of 

circumstances into the record, but some participant at the hearing must provide a 
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recitation for the record. State v. James, 7th Dist. No. 15 MA 0003, 2016-Ohio-4662, 

¶ 8. Moreover, even if there were documents in the record to indicate guilt, those 

documents, while perhaps sufficient to support the charge, are not sufficient to meet 

the requirements for actually establishing a defendant’s guilt or innocence. Bowers 

at 151. 

{¶20} The record contains no explanation of circumstances regarding 

Appellant’s possession of drug paraphernalia charge. The only information conveyed 

at the hearing was that the charge apparently involved a crack pipe. There was no 

explanation on the record of the circumstances as to how, when, or where the pipe 

was found. Without such explanation, Appellant’s conviction is not supported by the 

evidence presented. 

{¶21} As to the remedy for the trial court’s failure to meet the requirement for 

an explanation of circumstances, “a defendant who pleads no contest has a 

substantive right to be acquitted where the state’s statement of facts fails to establish 

all of the elements of the offense.” James, supra, at ¶ 13, quoting State v. Lloyd, 6th 

Dist. No. L-15-1035, 2016-Ohio-331, ¶ 19. 

{¶22} As noted by a number of other Ohio appellate districts, when the trial 

court fails to comply with R.C. 2937.07, “jeopardy attaches, thereby preventing the 

state from getting a second chance to meet its burden.” Berea v. Moorer, 2016-Ohio3452, 55 N.E.3d 1186 at ¶ 22. See State v. Horvath, 2015-Ohio-4729, 49 N.E.3d 

847, ¶ 18; State v. Cochrane, 2017-Ohio-6948, ¶ 18; Lloyd, supra, at ¶ 28; State v. 

Fordenwalt, 9th Dist. No. 09CA0021, 2010-Ohio-2810, ¶ 11. 
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{¶23} Therefore, based on the Ohio Supreme Court’s holding in Bowers and 

the decisions of our sister appellate districts, the failure to satisfy the requirement to 

explain the circumstances surrounding the crime means that any resulting conviction 

is supported by insufficient evidence. Therefore, the trial court’s acceptance of 

Appellant’s plea was not valid and, as jeopardy has attached, Appellant’s conviction 

must be vacated. 

{¶24} Based on the foregoing, the trial court failed to comply with the 

mandates of Crim.R. 11 prior to accepting Appellant’s plea of no contest and also 

failed to properly make or elicit an explanation of the circumstances surrounding the 

alleged offense prior to accepting Appellant’s no contest plea. Appellant’s first and 

second assignments of error are sustained. The judgment of the trial court is 

reversed and Appellant’s conviction is vacated. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.