[Cite as State v. Holley , 2020-Ohio-5104.]

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

STATE OF OHIO Plaintiff-Appellee

v. CHAD E. HOLLEY Defendant-Appellant : : : : : : : : : : Appellate Case No. 2019-CA-44

Trial Court Case No. 2019-CR-158 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of October, 2020.

. . . . . . . . . . . MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Greene County Pros ecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 45 385 Attorney for Plaintiff-Appellee KEARA R. SCHREIBER, Atty. Reg. No. 0096864, 130 West Second Str eet, Suite 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FROELICH, J.-2-

{¶ 1} Chad E. Holley pled guilty in the Greene County Court of Common Pleas to an amended charge of carrying a concealed weapon, in violation of R.C. 2923.12(A)(2), a misdemeanor of the first degree. The trial court imposed 180 days in jail with 97 days suspended and jail time credit of 83 days. The court ordered t wo years of monitored time and required Holley to pay a fine of $1,000, all of which was suspended, and court

costs. {¶ 2} Holley appeals from his conviction, claiming that the trial cou rt did not comply with Crim.R. 11 and R.C. 2937.07 in accepting his plea. The St ate has conceded error. For the following reasons, the trial court’s judgment will be r eversed and the matter will be remanded for further proceedings. I. Facts and Procedural History {¶ 3} Holley was indicted on three counts of having weapons while und er disability, in violation of R.C. 2923.13(A)(1), (2), and (3), all felonies of the third degree. 1 The charges were based on Holley’s possession of a .44 caliber F. L li Pietta Model 1858 black powder revolver; at the time of his arrest, Holley had two outs tanding warrants for assault and criminal damaging in Xenia and a prior burglary conviction in Florida. The indictment also sought forfeiture of the weapon. {¶ 4} Holley initially had appointed counsel, who filed a discovery d emand on his behalf. On April 30, Holley’s attorney moved to withdraw as co unsel due to a “significant breakdown in communication which would make further representat ion impossible.”

1 The State agreed during a pretrial conference that the charges were allied offenses of similar import.-3- After a hearing, the trial court allowed defense counsel to wit hdraw. Holley elected to proceed without counsel, and he expressly waived his constituti onal right to counsel, orally and in writing, at a subsequent hearing. {¶ 5} Prior to trial, the State dismissed Count 3 (R.C. 2923.13(A)(3) ) of the indictment and struck references in the indictment to a “danger ous ordnance.” On July 22, 2019, the matter proceeded to a jury trial on Counts 1 and 2. At the conclusion of the State’s case, the court granted Holley’s Crim.R. 29 motion as to Count 2 (R.C. 2923.13(A)(1)) on the ground that there was insufficient eviden ce that Holley was a fugitive from justice. After the jury received its instruction s and departed the courtroom to deliberate, the court and the parties again discussed whethe r Holley’s prior Florida conviction constituted a felony offense of violence for purpose s of Count 1 (R.C. 2923.13(A)(2)). {¶ 6} While the jury was deliberating and prior to any ruling by the trial court on the reopened Crim.R. 29 motion, the parties reached an agreement fo r Holley to plead guilty to a modified charge of carrying a concealed weapon, a misdemea nor of the first degree. In exchange, the State would dismiss the remaining charge and a gree to a sentence of

time served. {¶ 7} When Holley expressed that he would be more comfortable with a plea of no contest, the State objected, indicating that it was reducing th e charge from a felony to a misdemeanor and a misdemeanor offense would “require some addit ional evidence that the State would have to put on for the Court to consider.” The court responded, “Well, that’s true. That’s true. It’s probably just as easy – I’m go ing to make a finding of guilty. Why don’t we just do a guilty verdict?” Holley replied, “Okay, ” but expressed that he had-4- concerns about how a guilty plea would affect his separate repl evin action for the gun. The court responded: Well, I will, I think I can fair ly say this: You are pleading t o the misdemeanor offense defined as CCW. It’s not addressing that particular we apon. In other words, what they’re doing over there, I guess you refer t o a replevin action, whatever lawsuit, has no bearing upon this. {¶ 8} After further discussion about Holley’s case regarding the retu rn of his weapon, the trial court continued with Holley’s plea, as follow s: THE COURT: All right. I’ve been with you all day. I think it ’s fair to say that you are alert, and you’re clear of mind, and you totally u nderstand what’s going on here today; is that correct? DEFENDANT CHAD HOLLEY: Yes, sir. THE COURT: And you’ve agreed and the Court has made a finding that you can represent yourself in this case. Is it your voluntary choice to go forward with this change of plea? DEFENDANT CHAD HOLLEY: Yes, sir. THE COURT: All right. And in light of the agreement that’s be en presented on the record by the State, do you understand the max imum penalty a misdemeanor can afford to you is $1,000 fine and a si x-month county jail term; do you understand those are the maximum penal ties? DEFENDANT CHAD HOLLEY: Yes, I do. THE COURT: All right. And with that understanding, as to the amended charge before the Court, which is CCW, how do you wish to plead ?-5- DEFENDANT CHAD HOLLEY: One more thing right there is, if there ’s – could his Honor be sure to ensure that that $1,000 fine becomes a lien at this time? That I don’t have to pay that until if it becomes a lien against my license? I don’t want to have to worry about that aspect. THE COURT: You’re not going to have to worry about it. DEFENDANT CHAD HOLLEY: Yes, sir. Then I would enter a plea of guilty. THE COURT: All right. The Court will find that your plea is v oluntary, intelligent, and knowingly made, and that the Court has complie d with

Criminal Rule 11. The record does not contain a written plea agreement. {¶ 9} The court orally sentenced Holley to 180 days in jail with 83 d ays of jail time credit and the remaining 97 days suspended. It further imposed a $1,000 fine, all of which was suspended, and ordered Holley to pay court costs. Th e court told Holley that he would be “on unmonitored time” for two years, which “mean[t] just don’t commit any offenses for the next two years.” {¶ 10} Holley immediately asked the court if he could withdraw his ple a, because he did not want to have a two-year suspended sentence “hanging over my head” and he did not think he would be able to afford to pay the court costs . Holley asked, “I just don’t understand why it’s not time served?” The court responded, “Al l you have to worry about, Mr. Holley, is you’re getting out of jail today, and you’re don e with this case. * * *” The

court denied the motion. {¶ 11} The trial court’s judgment entry reflected the orally-imposed s uspended jail-6- term, the suspended fine, and the requirement to pay court cost s. The judgment entry indicated, however, that Holley was placed on monitored, not un monitored, time for two years. Holley appeals his conviction. {¶ 12} Holley’s original appellate counsel filed a brief pursuant to Anders v.

California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our Anders review, we found that non-frivolous issues existed as to whethe r the trial court complied with Crim.R. 11 and R.C. 2937.07 while taking Holley’s misdemea nor plea. We also noted that the trial court’s judgment entry appeared to differ in some respects from the trial court’s oral pronouncements at sentencing. We therefore rejected the Anders brief and appointed new counsel for Holley. {¶ 13} Holley now raises one assignment of error, claiming that the “t rial court committed reversible error by accepting [his] guilty plea in co ntravention of Crim.R. 11

and R.C. 2937.07.”

II. Mootness {¶ 14} As an initial matter, the State raises that Holley failed to se ek a stay of execution of his sentence pending appeal and that, as a result, this appeal may be moot.

The State notes that the trial court issued a decision on June 29, 2020, which administratively terminated Holley’s monitored community contro l. The entry indicated that Holley had “not fulfilled all required obligations within the supervision period” and that he remained responsible for any fines, court costs, and fees ow ed. The entry nevertheless ordered that Holley be discharged, his citizenship rights restored, and the

case closed. {¶ 15} “The doctrine of mootness is founded upon the ‘long and well es tablished-7- [premise] that it is the duty of every judicial tribunal to dec ide actual controversies between parties legitimately affected by specific facts and to render j udgments which can be

carried into effect.’ ” State v. Dixon , 2d Dist. Miami No. 2018-CA-8, 2019-Ohio-299, ¶ 12, quoting Fortner v. Thomas , 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). When a misdemeanor defendant has voluntarily paid the fine or complete d the sentence for an offense, an appeal is moot when no evidence is offered from whi ch an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction. State v. Wilson , 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), paragraph one of the syllabus; State v. Nared, 2d Dist. Clark No. 2017-CA-3, 2017-Ohio6999, ¶ 11. {¶ 16} Unpaid court costs alone are sufficient to prevent a judgment f rom being moot, even if an appellant has completed his jail sentence. State v. Ruley , 2d Dist. Miami No. 2017-CA-10, 2018-Ohio-3201, ¶ 10; Nared at ¶ 12; State v. Laster , 2d Dist. Montgomery No. 25019, 2013-Ohio-621, ¶ 3, fn.1 (“Because the co urt costs remain unpaid, Laster’s misdemeanor appeal is not moot despite her com pletion of community control and the absence of any other apparent collateral conseq uences stemming from her conviction.”). The online docket for the Greene County Cou rt of Common Pleas reflects that Holley has court costs of $356 that have not yet been paid. Due to that unpaid balance, Holley’s appeal is not moot. III. Review of Holley’s Plea {¶ 17} As stated above, Holley claims that the trial court erred in ac cepting his guilty plea to carrying a concealed weapon, a first-degree misd emeanor, because it failed to comply with Crim.R. 11 and R.C. 2937.07.-8- {¶ 18} The requirements for a plea in felony cases differ from those f or a plea in misdemeanor cases. Under Crim.R. 11(E), in misdemeanor cases i nvolving petty offenses, 2 such as this case, “the court may refuse to accept a plea of g uilty 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 .” (Emphasis added.) A trial court is required to inform the defendant only of the effect of the specific plea be ing entered. State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 20. The n otification regarding the effect of the plea is not satisfied by statements relating to the maximum penalty and the defendant’s constitutional rights. See id . at ¶ 22. {¶ 19} Crim.R. 11(E) further states that the counsel provisions of Cri m.R. 44(B) and (C) apply to misdemeanor pleas for petty offenses. Crim.R. 44, which governs appointment of counsel, provides in relevant part: (B) Counsel in petty offenses. Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign couns el to represent him. When a defendant charged with a petty offense i s unable to obtain counsel, no sentence of confinement may be imposed up on him, unless after being fully advised by the court, he knowingly, in telligently, and voluntarily waives assignment of counsel. (C) Waiver of counsel. Waiver of counsel shall be in open cour t and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing.

2 A “petty offense” is “a misdemeanor other than a serious offen se.” Crim.R. 2(D). A “serious offense” means “any felony, and any misdemeanor for wh ich the penalty prescribed by law includes confinement for more than six months .” Crim.R. 2(C).-9- {¶ 20} In addition, pursuant to R.C. 2937.07, the trial court in a mis demeanor case is required to hear an explanation of the circumstances surroun ding the offense. With respect to guilty pleas, the statute provides: If the offense is a misdemeanor and the accused pleads guilty t o the offense, the court or magistrate shall receive and enter the pl ea unless the court or magistrate believes that it was made through fraud, co llusion, or mistake. * * * Upon receiving a plea of guilty, the court or ma gistrate shall call for an explanation of the circumstances of the offense fro m the affiant or complainant or the affiant’s or complainant’s representative s unless the offense to which the accused is pleading is a minor misdemeanor in which case the court or magistrate is not required to call for an exp lanation of the circumstances of the offense. After hearing the explanation of circumstances, together with any statement of the accused or af ter receiving the plea of guilty if an explanation of the circumsta nces of the offense is not required, the court or magistrate shall proceed to pronounce the sentence or shall continue the matter for the purpose of im posing the

sentence. {¶ 21} The State bears the burden of ensuring that an explanation of circumstances appears on the record before a conviction is ente red. State v. Schornak , 2015-Ohio-3383, 41 N.E.3d 168, ¶ 8 (2d Dist.). However, it is immaterial who actually states the explanation on the record. Id . Regardless of who states the explanation of circumstances, the record must affirmatively demonstrate that a sufficient explanation of

circumstances was made. Id

.-10- {¶ 22} Holley first raises that the trial court failed to comply with Crim.R. 11(E) by failing to inform him of the effect of his plea. The State con cedes that the trial court committed reversible error in this respect and agrees that Holl ey’s plea was in contravention of Crim.R. 11. Upon review of the record, we lik ewise agree with the parties’ assessment and conclude that Holley’s conviction must be reversed on this basis. {¶ 23} Holley further raises three additional issues. He argues that the trial court erred in not offering him the assistance of counsel, contrary t o Crim.R. 11(E). He notes that his stand-by counsel was still in the gallery when he ente red his plea. Next, he argues that the State failed to ensure compliance with R.C. 293 7.07. Finally, Holley claims that the trial court’s judgment differed from the trial court’s oral pronouncement at sentencing, particularly in that the written judgment imposed m onitored, not unmonitored, supervision. {¶ 24} The State concedes that it failed to ensure compliance with R.C . 2937.07. It states in its appellate brief: [R]egardless of having taken 2 days of testimony regarding Weap ons While Under Disability, in violation of R.C. § 2923.13(A)(1) and (2), during the plea colloquy, the State failed to incorporate those facts, by refer ence, into the plea for Carry Concealed Weapons charge or otherwise offer a re citation of the underlying facts as required by R.C. § 2937.07. The State suggests that its failure was harmless, given that th e parties had participated in two days of trial immediately before the plea hearing and “c learly understood the underlying facts,” but it “none-the-less * * * concedes that th e State did err in failing to ensure compliance with R.C. § 2937.07.”-11- {¶ 25} In light of the trial court’s failure to inform Holley of the e ffect of his plea, we need not address Holley’s additional claims or the State’s sugg estion that its failure to ensure compliance with R.C. 2937.07 was harmless. Because the judgment will be reversed and the case remanded for further proceedings, any add itional errors in the plea hearing or in the judgment entry are moot. {¶ 26} Holley’s assignment of error is sustained.

IV. Conclusion {¶ 27} The trial court’s judgment will be reversed, and the matter wil l be remanded for further proceedings.

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

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to: Marcy A. Vonderwell Keara R. Schreiber Hon. Stephen Wolaver