[Cite as State v. McGrath , 2021-Ohio-2605.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY

STATE OF OHIO Plaintiff-Appellee

v. MATTHEW WILLIAM MCGRATH Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-21

Trial Court Case Nos. 2019-CRB-001- 0409 and 2019-TRC-001-1357 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of July, 2021.

. . . . . . . . . . . JESSE J. GREEN, Atty. Reg. No. 0040265, Assistant Prosecuting A ttorney, Darke County Municipal Cou rt, 504 South Broadway, Greenville, Ohio 45 331 Attorney for Plaintiff-Appellee REGINA R. RICHARDS, Atty. Reg. No. 0079457, 202 Scioto Street, Urbana, Ohio 43078 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

TUCKER, P.J.-2- {¶ 1} Appellant, Matthew William McGrath, was convicted of being in p hysical

control of a vehicle while under the influence of alcohol or dr ugs. McGrath asserts that he was subjected to an unconstitutional stop and that the field sobriety testing which followed was not supported by a reasonable, articulable suspici on that he was under the influence of alcohol. McGrath additionally asserts that, when taking his no contest plea, the trial court did not comply with the Traf.R. 10(B)(2) requir ement that he be advised of the effect of a no contest plea. We conclude that the stop was a constitutional investigative stop and that the field sobriety testing was supp orted by a reasonable articulable suspicion of alcohol impairment. But we also concl ude that the trial court completely failed to comply with the Traf.R. 10(B)(2) requireme nt that a defendant entering a no contest plea must be advised of the effect of suc h a plea. The trial court’s judgment will be reversed and remanded. Facts and Procedural History {¶ 2} On June 26, 2019, at approximately 8:45 p.m., Darke County Sher iff’s Deputy Greg Armstrong observed a parked automobile in the 1200 block o f Imler Drive, Wayne Lakes, Ohio, while on routine patrol. Armstrong initiated a st op of the automobile by activating the cruiser’s overhead lights. McGrath was seated i n the parked automobile’s driver’s seat; he exited the vehicle and approached Armstrong. The ensuing encounter resulted in McGrath’s arrest for operating a vehicle while unde r the influence (OVI) under R.C. 4511.191, a first-degree misdemeanor. However, Armstrong testified at a subsequent suppression hearing that the OVI citation was a mist ake, because it had been his intent to issue McGrath a citation for having physical cont rol of a vehicle while under the influence (having physical control), in violation of R.C. 4 511.194, also a first-degree-3- misdemeanor. {¶ 3} Trial counsel filed a motion to suppress, challenging the const itutionality of the stop, the field sobriety testing, and whether there was pro bable cause to arrest McGrath. Following a hearing, the trial court overruled the su ppression motion, except that the court suppressed the horizontal gaze nystagmus (HGN) t est. Thereafter, McGrath pleaded no contest to having physical control, and he w as sentenced accordingly. This appeal followed. Assignments of Error {¶ 4} McGrath presents two assignments of error: The trial court erred by overruling Appellant’s motion to supp ress where law enforcement lacked reasonable [articulable] suspicion of criminal activity to justify an investigatory stop and seizure and/or fu rther intrusion to perform [field sobriety tests]. McGrath claims that the trial court erred in accepting his no contest plea, because the court failed to inform him of the effect of h is no contest plea, as required by Traf.R. 10(D) and as applicable under Traf .R. 10(B)(2)

and therefore it was not entered knowingly, intelligently or vo luntarily. Traffic Stop {¶ 5} At the suppression hearing, during his direct examination, Arms trong testified that he made the traffic stop because he observed McGrath’s veh icle “partially on the roadway.” Armstrong also testified that on previous occasions at the same location, he had “caught people [who were] unresponsive and overdosing on he roin.” During crossexamination, Armstrong expanded upon the facts surrounding the stop as follows:-4- Q. Specifically, the place where you located my client’s vehicl e, is there loose gravel in the area? A. There’s loose gravel but it’s flat and smooth. Q. Is it slanted or sloped. A. The only place it’s sloped, Your Honor, is down where there used to be - - or possibly still is like a boat launch but that is below whe re they were sitting. Where they was sitting it was straight and - - it was a straight area. Q. And how many lanes? A. There’s two lanes, Your Honor, right there. Q. Are they clearly marked? A. There’s no markings for the lanes. The only thing that ident ifies the markings would be the - - there’s grass and weeds on both sides

. Q. Would you agree that it’s essentially a back country road? A. I would agree with that, Your Honor. Q. And you testified that [the] CRV was about a foot onto the r oad? A. Yes, Your Honor. It was approximately one foot into the road way. Q. Was it blocking the roadway? A. It was not blocking the roadway, Your Honor. Q. So it wasn’t prohibi ting the flow of traffic in any way. A. Other than if two people were to meet at that particular are a, you would have to - - one of them would have to stop. Suppression Hearing Tr. p. 24-25. Additionally, a photograph w as introduced (Exhibit B) which depicted McGrath’s vehicle parked on the roadway, albeit slightly.-5- {¶ 6} Appellate “review of a motion to suppress presents a mixed ques tion of law

and fact.” State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court “is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es],” so an “appellate co urt must accept the trial court’s findings of fact if they are supported by competent, credible e vidence.” Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, ¶ 12. Accepting the trial court ’s findings of fact as true, “the appellate court must then independently determine, w ithout deference to the [trial court’s legal] conclusion[s],” whether the “facts satisf y the applicable * * * standard.”

Burnside at ¶ 8, citing Fanning and State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (3d Dist.1997). {¶ 7} The Fourth Amendment to the United States Constitution prohibit s unreasonable searches and seizures. Terry v. Ohio , 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also State v. Taylor , 138 Ohio App.3d 139, 145, 740 N.E.2d 704 (2d Dist.2000) (noting “the Fourth and Fourteenth Amendments to the United States Constitution and Section 14, Article 1” of the Ohio Constitutio n “protect the same interests in a consistent manner”). Warrantless searches and seizures vi olate this prohibition unless conducted pursuant to one of the “few specifically estab lished and well-delineated exceptions.” (Citations omitted.) Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One of these exceptions “is common ly known as an investigative or Terry stop,” which includes the temporary detention of motorists for the

enforcement of traffic laws. State v. Dorsey , 10th Dist. Franklin No. 04AP-737, 2005--6- Ohio-2334, ¶ 17, citing Terry

. {¶ 8} The temporary “detention of [persons] during the stop of an aut omobile by the police, even if only for a brief period and for a limited p urpose, constitutes a ‘seizure’ of ‘persons’ within the meaning” of the Fourth Amendment. (Cit ations omitted.) Whren

v. United States , 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). An “automobile stop is thus subject to the constitutional imperati ve that it not be

‘unreasonable’ under the circumstances.” Id. at 810. Generally, a police officer’s decision to stop an automobile will comport with this requireme nt if the officer has a “reasonable suspicion” of criminal activity. United States v. Lopez-Soto , 205 F.3d 1101, 1104-1105 (9th Cir.2000); State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23. {¶ 9} Moreover, the constitutionality of a stop supported by a reason able suspicion

that a traffic violation has been committed is not undermined b y an officer’s ulterior investigative motive for making the stop. Dayton v. Erickson , 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996), syllabus. {¶ 10} Turning to the pending case, R.C. 4511.66(A) states in pertinen t part as

follows: Upon any highway outside a business or residence district, no p erson shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway if it is pr acticable to stop, park, or so leave such vehicle off the paved or main trav eled part of said highway * * *.

Armstr ong’s testimony, which the trial court implicitly found credibl e, and Exhibit B, a photo-7- of McGrath’s vehicle on the roadway (which was referenced in th e trial court’s decision), lead to the conclusion that the traffic stop was supported by a t least a reasonable suspicion that McGrath’s vehicle was parked in violation of R.C . 4511.66(A). Field Sobriety Testing {¶ 11} At the suppression hearing, Armstrong testified that, when he a ctivated the cruiser’s overhead lights, McGrath exited his vehicle and began walking toward the cruiser “pretty rapidly.” Armstrong observed that, as McGrath exited his vehicle, “he had some trouble” performing this task, and as McGrath approached t he cruiser, he seemed to be having “some trouble” walking. Armstrong ordered McGrath to return to his car, and McGrath complied with this request. Armstrong observed tha t, as McGrath returned to his car, he continued to have “trouble” walking and had diff iculty getting back into his car. Armstrong testified that, overall, McGrath was “just very stumbly [and] staggering.” {¶ 12} Armstrong ultimately approached McGrath’s vehicle and made con tact with him. Upon doing so, Armstrong noted an “odor of alcohol e manating from [McGrath].” Armstrong further observed that McGrath’s eyes wer e “glassy” and “bloodshot,” and, upon talking to McGrath, Armstrong noted that McGrath’s speech was “slurred.” Armstrong observed an open container of beer near M cGrath’s person, and, when asked, McGrath admitted to consuming two beers. Based upo n these observations and this information, Armstrong requested that McG rath perform a series of field sobriety tests, and McGrath complied. Upon completion of the tests, McGrath was

arrested. {¶ 13} To justify the further detention associated with field sobriety testing, “the officer must have a reasonable, articulable suspicion that [the detained] person is * * *-8- under the influence[.]” State v. Turney , 2020-Ohio-4148, 157 N.E.3d 809, ¶ 14 (2d Dist.), quoting State v. Brown , 2d Dist. Greene No. 2011-CA-52, 2012-Ohio-3099, ¶ 13. The determination of the existence of reasonable suspicion is based upon the “totality of * * * circumstances” as viewed “ ‘through the eyes of the reasonable and prudent police officer

on the scene * * *’ ” Id. , quoting State v. Gladman , 2d Dist. Clark No. 2013-CA-99, 2014- Ohio-2554, ¶ 14, quoting State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio1047, ¶ 14. In the context of alcohol impairment, “many observ ations can satisfy [the] reasonable, articulable suspicion [requirement], including the odor of an alcoholic beverage * * *, glassy bloodshot eyes, and slurred speech.” Id. at ¶ 15, quoting Brown at ¶ 13. {¶ 14} Armstrong’s observations, which included McGrath’s trouble ambu lating, his difficulty exiting and enteri ng his vehicle, his glassy blo odshot eyes and slurred speech, and the odor of alcohol, coupled with the open containe r and McGrath’s admission of consuming two beers, taken together, were sufficie nt to provide the necessary reasonable, articulable suspicion of impairment to al low field sobriety testing. {¶ 15} Having found that the stop was legal and that there was a basis for field sobriety testing, McGrath’s first assignment of error is overru led.

No contest Plea {¶ 16} A trial court’s duties at a plea hearing are “graduated accordi ng to the seriousness of the crime with which the defendant is charged.” State v. Watkins , 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 25. {¶ 17} Having physical control while under the influence, as a first d egree misdemeanor, is a petty offense, “which means ‘an offense for w hich the penalty-9- prescribed by law includes confinement of six months or less.’ ” State v. McGlinch , 2019- Ohio-1380, 135 N.E.3d 406, ¶ 21 (2d Dist.), quoting Traf.R. 2(D ). 1 A plea in a traffic case involving a petty offense is governed by Traf.R. 10(D), which s tates the following: In misdemeanor cases involving petty offenses * * * the court m ay 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 pleas of gui lty, no contest, and not guilty. This information may be presented by general o rientation or pronouncement. Traf.R. 10(B) defines the effect of a guilty or no contest ple a and states, in relevant part, that a plea of no contest “is not an admission of defenda nt’s guilt, but is an admission of the truth of the facts alleged in the complaint and such ple as shall not be used against the defendant in any subsequent civil or criminal proceeding.” Traf.R. 10(B)(2); see also Crim.R. 11(B)(2), which is identical to Traf.R. 10(B)(2). A tr ial court accepting a plea to a petty traffic offense need only comply with Traf.R. 10(D), bu t such compliance must, when applicable, include the Traf.R. 10(B)(2) explanation of th e effect of a no contest plea. McGlinch at ¶ 24. {¶ 18} In McGlinch, we concluded that, when a defendant pleads no contest to a petty traffic offense and the trial court completely fails to i nform the defendant of the effect of a no contest plea, in violation of Traf.R. 10(D), and the pl ea is contested on appeal, the defendant need not demonstrate prejudice, and the plea must be vacated. Id. at ¶ 30-

1 The Ohio Traffic Rules apply in all Ohio courts in traffic case s. Traf.R. 1(A). A “traffic case” is “any proceeding, other than a proceeding resulting fro m a felony indictment, that involves one or more violations of a law, ordinance, or regulat ion governing the operation and use of vehicles, conduct of pedestrians in relation to vehi cles, or weight, dimension, loads or equipment, or vehicles drawn or moved on highways and bridges.” Traf.R. 2(A).-10- 31. See also State v. Sauceman , 11th Dist. Trumbull No. 2020-T-0033, 2021-Ohio-172, ¶ 17; State v. Williams , 6th Dist. Lucas No. L-17-1064, 2018-Ohio-1000, ¶ 5. We note that this conclusion is consistent with the case law in felony cases that a trial court’s complete failure to advise a defendant of a Crim.R. 11(C)(2)(a) non-constitutional right obviates the defendant’s obligation to establish prejudice. See State v. Dangler , 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 15. {¶ 19} In McGrath’s case, the trial court completely failed to inform him of the effect of a no contest plea. Moreover, the record does not reflect th at McGrath was informed of the effect of a no contest plea through "general orientation ” as allowed by Traf.R. 10(D). As such, we conclude, consistent with McGlinch , that McGrath’s no contest plea must be reversed, and the case remanded to the trial court.

Conclusion {¶ 20} McGrath’s first assignment of error is overruled. His second a ssignment of error is sustained. The judgment of the Darke County Municipal Court is reversed, and

the matter is remanded to the trial court.

. . . . . . . . . . . . . HALL, J. and WELBAUM, J., concur.

Copies sent to:

Jesse J. Green Regina R. Richards Matthew William McGrath Hon. James S. Detling, Visiting Judge Hon. Julie L. Monnin