[Cite as Cleveland v. Jones , 2018-Ohio-4420.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106717

CITY OF CLEVELAND

PLAINTIFF-APPELLEE

vs. BLANCHARD E. JONES, JR.

DEFENDANT-APPELLANT

JUDGMENT: VACATED AND REMANDED

Criminal Appeal from the Cleveland Municipal Court Case No. 2017 CRB 008785

BEFORE: Keough, J., McCormack, P.J., and Laster Mays, J.

RELEASED AND JOURNALIZED: November 1, 2018ATTORNEYS FOR APPELLANT

Mark Stanton Cuyahoga County Public Defender By: Cullen Sweeney Robert Blanshard McCaleb Assistant Public Defenders 310 West Lakeside, Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Barbara A. Langhenry City of Cleveland Law Director 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114 Omar Lebron Siddiq Assistant Prosecutor - City of Cleveland City of Cleveland Law Department 1200 Ontario Street, 8th Floor Cleveland, Ohio 44113

KATHLEEN ANN KEOUGH, J.: {¶1} Defendant-appellant, Blanchar d E. Jones, Jr., appeals the trial court’s decision denying his motion to suppress and his subsequent conviction for fa ilure to inform, in violation of R.C. 2923.12(B)(1). For the reasons th at follow, we vacate his conviction. {¶2} In March 2017, Jones was charged with fa ilure to inform, using a weapon while intoxicated, and obstructing official business. The charges stemmed from an encounter with police in the early morning hours of March 18, 2017 outside the Hilton hotel in downtown

Cleveland.{¶3} Jones filed a motion to suppre ss contending that his arrest was unlawful. Following an evidentiary hearing, the trial court denied th e motion. Subsequently, Jones entered into a plea agreement with the city whereby he agreed to forfeit the firearm involved and plead no contest to the offense of failure to comply in exchange for the other offenses being nolled. The trial court sentenced Jones to 180 days in jail, with credit for three days served, and the remaining 177 days suspended. Additionally, he wa s ordered to pay a $1,000 fine a nd court costs with $600 of the fine suspended. Finally, Jones wa s ordered to serve one year of active probation that included a gun safety class and a substance abuse assessment. {¶4} Jones now appeals, raising th ree assignments of error. {¶5} Under R.C. 2937.07, when a court finds a defe ndant guilty after th at defendant has entered a no contest plea, the record must provide an “explanation of circumstances” or factual

basis that includes a statement of the facts supporting all of the essen tial elements of the offense. Broadview Hts. v. Krueger , 8th Dist. Cuyahoga No. 88998, 2007-Ohio-5337, ¶10. The explanation of circumstances “‘se rves as the evidence upon which th e trial court is to base its finding of guilty or not guilty.’” State v. Schornak , 2015-Ohio-3383, 41 N.E.3d 168, ¶ 7 (2d Dist.), quoting State v. Stewart , 2d Dist. Montgomery No. 19771, 2004 Ohio App. LEXIS 2745, 3 (June 10, 2004). “Section 2937.07 confers a substan tive right on the accused to be discharged by a finding of not guilty where the explanation of circumstances that the statute requires fails to establish all of the elements of the offense, or where no explanation of circumstances is made at

all.” State v. Osterfeld , 2d Dist. Montgomery No. 20677, 2005-Ohio-3180, ¶ 6. {¶6} In his first assignment of error, Jones cont ends that the trial court entered a finding of guilt without requesting or receiving an explana tion of circumstances at the time of the plea. The city concedes that neither the prosecutor nor the court entered an explicit factual basis.However, the city maintains that this defect is not fatal because (1) the factual basis can be given at any time, including a previously-held suppre ssion hearing or during sentencing; and (2) the court noted the police report number on the court’s journal entry finding Jones guilty. {¶7} The city acknowledges th is court’s precedent in Middleburg Hts. v. Elsing , 8th Dist. Cuyahoga No. 105237, 2017-Ohio-6891, that facts a dduced at a previously-held suppression hearing are insufficient to satis fy the explanation of circumst ances requirement of R.C. 2937.07. This court stated, Although the record contains several doc uments, including the citation and the police officer’s testimony from the suppre ssion hearing that could have supported a finding of guilt and, although the tr ial judge acknowledged that he had previously “heard the facts,” the trial court did not at any point reference any of these facts or materials for the record. “While the trial court judge may have had knowledge of facts that would constitute a sufficient basis for a finding of guilt, the law requires an explanation of th e circumstances that support such a conclusion.” Brown , 2017-Ohio-678, at ¶ 12; see also Horvath , 2015-Ohio-4729, 49 N.E.3d 847, at ¶ 16 (citing Cleveland v. Paramount Land Holdings, L.L.C. , 8th Dist. Cuyahoga No. 95448, 2011-Ohio-3383, ¶ 23, for the proposition that “an explanation of ci rcumstances is not satisfied by a presumption that the [trial] court was aware of facts”).

Id . at ¶ 14. {¶8} Despite our precedent, the city contends that this court should rely on cases from other districts that hold that a factual basis can be given at any time, including a previously-held suppression hearing or during sentencing. See, e.g., State v. Wendell , 5th Dist. Stark No. CA-8179, 1991 Ohio App. LEXIS 276 (Jan. 14, 1991), State v. Kiefer , 1st Dist. Hamilton No. C-30205, 2004-Ohio-5054, State v. Nichols , 5th Dist. Coshocton No. 01 CA 016,

2002-Ohio-4048. {¶9} In Wendell , the Fifth District concluded that “[R.C. 2937.07] does not prescribe a time or sequence within which the explana tion of circumstances must take place.” Id . at 3. Accordingly, the court found that a suppressi on hearing conducted a month prior to the pleaprovided the court and the defenda nt with an explanation of circumstances to support a guilty finding following a no contest plea. Id . Both Kiefer and Nichols relied on the Wendell court’s conclusion in finding that a previously-held s uppression hearing can satisfy the requirement in R.C. 2937.07. We disagree and rely on the precedent in our district. {¶10} Contrary to the conclusions in Wendell , Kiefer , and Nichols , R.C. 2937.07 explicitly provides a time and sequence within which the explanation of circumstances must occur. Pursuant to R.C. 2937.07, A plea of * * * “no contest” * * * shall constitute an admission of the truth of the facts alleged in the complaint and that the judge * * * may make a finding of guilty or not guilty from the explanation of circumstances of the offense. * * * If a finding of guilty is made, the judge * * * shall impose the sentence or continue the case for sentencing accordingly. According to the plain language of the statute, the explanation of circumstances occurs following the plea of “no contest” and prior to the court’s determination of guilt, which of course is prior to sentencing. {¶11} The explanation of circumstances requireme nt is not satisfied by a presumption that the court was aware of facts demonstrating the defendant’s guilt that can be gleaned from documentary evidence in the court file. Berea v. Moorer , 2016-Ohio-3452, 55 N.E.3d 1186, ¶ 9 (8th Dist.), citing Chagrin Falls v. Katelanos , 54 Ohio App.3d 157, 158, 561 N.E.2d 992 (8th Dist.1988). An explanation of th e circumstances is required so that the trial court does not simply make the finding of guilty in a “perfunctory fashion.” Cuyahoga Falls v. Bowers , 9 Ohio St.3d 148, 151, 459 N.E.2d 532 (1984)

. {¶12} Accordingly, any explanation of circum stances that occurs during a suppression hearing or subsequently at sentencing cannot be used to satisfy the requirements of R.C. 2937.07.{¶13} The city also contends that the court’ s notation of the police report number on the journal entry finding Jones guilty is sufficient to form a factual basis. It is well established that a trial court speaks through its journal entries. State v. Miller , 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924. However, merely putting the police report number on the journal entry does not provide any information regarding the factual basis. “The question is not

whether the court could have rendered an explanation of circumstances sufficient to find appellant guilty based on the ava ilable documentation but whether the court made the necessary explanation.” Bowers at 151. {¶14} Morever, the actual police report is not part of the trial court record for this court to

even discern if it contained sufficient information for a factual basis. See Elsing , 8th Dist. Cuyahoga No. 105237, 2017-Ohio-6891, at ¶ 14 (although the record contains several documents that could have supported a finding of guilt, th e trial judge did not reference any facts or materials for the record); see, e.g., State v. Czech , 6th Dist. Lucas No. L-13-1141, 2015-Ohio-458 (merely stating that the trial court “reviewed the complaint” is insufficient to satisfy a factual basis). {¶15} In this case, because an explanation of circumstances was not presented, the trial court violated R.C. 2937.07 by entering a findi ng of guilt without a factual basis for the conviction at the time of the plea. Accord ingly, Jones’s conviction is vacated. {¶16} Moreover, a trial court’s fa ilure to comply with R.C. 2937.07 results in insufficient

evidence. Elsing at ¶ 11, citing Moorer , 2016-Ohio-3452, 55 N.E.3d 1186, at ¶ 22. “‘As such, double jeopardy attaches, thereby preventing the state from getting a second chance to meet its

burden.’” Id ., quoting Moorer at id. ; see also Euclid v. Derrick , 8th Dist. Cuyahoga No. 105733, 2018-Ohio-286, ¶ 8, fn.1; State v. Horvath, 2015-Ohio-4729, 49 N.E.3d 847, ¶ 18 (3dDist.), Accordingly, Jones’s first assignment of error is sustained, and the case is remanded with instructions for the trial court to dismiss the charge. {¶17} Finding merit to Jones’s firs t assignment of error, his second and third assignments of error challenging the sufficiency of any explanation of circumstances and the denial of his motion to suppress are he reby rendered moot. See App.R. 12. {¶18} Judgment vacated and the case is remanded to the trial court with instructions. It is ordered that appe llant recover from appellee the costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE TIM McCORMACK, P.J., and ANITA LASTER MAYS, J., CONCUR