[Cite as State v. Hudson, 2018-Ohio-4880.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MIAMI COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

LARRY D. HUDSON 

Defendant-Appellant 

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Appellate Case Nos. 2018-CA-10, 

2018-CA-11 

Trial Court Case Nos. 2018-CRA-885, 

2018-TRD-1899 

(Criminal Appeal from 

Municipal Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 7th day of December, 2018. 

. . . . . . . . . . . 

LENEE BROSH, Atty. Reg. No. 0075642, 211 Miami County Prosecutor’s Office, 

Appellate Division, 201 W. Main Street, Troy, Ohio 45373 

Attorney for Plaintiff-Appellee 

 

GLENDA A. SMITH, Atty. Reg. No. 0070738, P.O. Box 15353, Wyoming, Ohio 45215 

 Attorney for Defendant-Appellant 

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

 

DONOVAN, J. 
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{¶ 1} This matter is before the court on the May 10, 2018 Notices of Appeal of 

Larry Dean Hudson, filed in Case Nos. 2018 CRA 885 and 2018 TRD 1899. Hudson 

appeals from his convictions, following no contest pleas, to one count of failure to comply 

with an order or signal of a police officer (“failure to comply”), in violation of R.C. 

2921.331(A), in Case No. 2018 CRA 885, and one count of failure to stop after an accident 

(“failure to stop”), in violation of R.C. R.C. 4549.02, in Case No. 2018 TRD 1899. Both 

offenses are misdemeanors of the first degree. For the reasons set forth below, Hudson’s 

conviction for failure to stop is affirmed, and his conviction for failure to comply is vacated, 

and the matter is remanded for further proceedings regarding the offense of failure to 

comply. 

{¶ 2} On March 7, 2018, in Case No. 2018 TRD 1899, Hudson received two traffic 

citations for multiple offenses, namely failure to reinstate his driver’s license, reckless 

operation, failure to stop, expired plates, and failure to control. On the same date, in 

Case No. 2018 CRA 885, Hudson was charged by way of complaint with failure to comply, 

in violation of R.C. 2921.331(B), a felony of the third degree. The complaint provided 

that “the operation of the motor vehicle by the offender caused a substantial risk of serious 

physical harm to persons or property.” 

{¶ 3} A preliminary hearing was scheduled for March 15, 2018, for both cases. 

On that date, Hudson entered a plea of no contest in Case No. 2018 CRA 885 to the 

reduced charge of failure to comply, in violation of R.C. 2921.331(A), a misdemeanor of 

the first degree. The court’s entry of disposition provided: “Complaint Amended to: 

2921.331(A) (M-1).” In Case No. 2018 TRD 1899, Hudson pled no contest to the charge 
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of failure to stop. Our record does not contain a transcript of the plea hearing, and our 

conclusion that Hudson entered no contest pleas is based upon the fact that the court’s 

entries of disposition so reflect. Hudson’s plea forms in each case are captioned “Plea 

of Guilty or No Contest,” and they do not identify Hudson’s pleas or offenses. The identical 

forms, signed by Hudson, provide as follows: 

The undersigned does hereby acknowledge that he/she has read 

this form and understands the following: 

1. The nature and elements of the crime with which I am charged. 

2. The difference between the pleas of guilty, not guilty, and no 

contest. 

3. The maximum sentence that may be imposed upon me now or 

upon a violation of my probation, including any mandatory sentence that 

may be imposed. 

 4. That I have a right to an attorney and that I have the right to have 

an attorney appointed for me in the event I cannot afford one. 

 * * * 

 __X____That I am satisfied with my attorney’s advice and I am 

entering this plea after considering my attorney’s advice. 

5. I further understand that by entering a plea of “Guilty” (admits to 

the charge(s)) or “No Contest” (do not contest the charge(s)), that there will 

be no trial and that I waive the following rights: 

a. The right to a speedy public trial to the court or to a jury. 

b. The right to testify or not to testify in my own behalf. 
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c. The right to subpoena witnesses to testify in my behalf. 

d. The right to cross examine the State’s witnesses. 

e. The right to require the State to prove me guilty of each and 

 every element of the offense(s) beyond a reasonable doubt. 

 I am entering this plea knowingly and voluntarily. No promises, 

threats or other representations have been made to influence me to enter 

this plea except as have been made on the record. 

{¶ 4} We note that the plea forms in both cases reflect the following case 

numbers: “2018 TRD 01889” and “2018 CRA 00885,” and that Case No. 2018 CRA 885 

is the case number assigned to the felony complaint. 

{¶ 5} The court scheduled sentencing for April 25, 2018. On March 23, 2018, 

the court filed, in both case numbers, handwritten correspondence from Hudson dated 

March 22, 2018, which provided as follows: “I am writing to notify the courts that I Larry 

D. Hudson do not agree or consent to the charges that are against me. The charges of 

fail[ure] to comply with police officer and stopping after accident roadways and highways 

[sic], I do not believe apply to me.” 

{¶ 6} On April 25, 2018, the court sentenced Hudson to 180 days in each case, 

to be served consecutively, and ordered him to pay restitution in the amount of $465.28 

in Case No. 2018 TRD 1899. We note that in each case, the court’s entries of disposition 

provide: “Record to be Journalized by the Clerk of Courts.” On May 4, 2018, in each 

case, the Deputy Clerk issued an entry that provided: 

Sentence: 360 days 

To the Keeper of the Jail 

Whereas, Larry D. Hudson has been arrested on oath of: 

Ptl. Souter (Tipp), Ptl. Madigan (Troy) 

FOR: M1 FTC w/ Police Officer, Stop after Accident 
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O.R.C./ C.O.# 2921.331, 4549.02 

And has been found guilty and sentenced to be imprisoned for the above term. 

The defendant is to remain in your custody until his/her sentence expires. 

{¶ 7} Hudson submitted additional correspondence to the court dated April 26, 

2018, which provided: 

Sirs I’m not in understanding how it is that a public defender can have 

a defendant to sign a plea agreement that was not fully filled in, and then to 

enter the plea without the defendant knowing the plea. I don’t know what 

my plea was and is to me a forced contract that can’t be legal. On 03-22-

18 I sent a handwritten letter to the Clerk of Court’s stating I didn’t believe 

these charges apply to me. * * * 

{¶ 8} In another letter dated April 26, 2018, Hudson again asserted that his plea 

agreement was “incomplete,” and that he “did not know what the plea was.” Finally, 

Hudson submitted correspondence dated April 29, 2018, which stated that “on the day of 

March 07, 2018 I Larry D. Hudson was not driving and did not wreck any vehicle. * * *” 

{¶ 9} We note that the record reflects that at the time Hudson filed his Notices of 

Appeal, he also filed a “Motion for Transcripts of the Proceedings,” in which he “move[d] 

this Court for a transcript of the Proceedings to be used for the purpose of appeal in the 

within case.” The court granted the motion on May 10, 2018. A transcript of the 

sentencing hearing was later filed with this court, but no transcript of the plea hearing was 

filed. 

{¶ 10} Hudson asserts three assignments of error herein. We note that the 

prosecutor did not file a brief in response. Hudson’s first and second assignments of 

error are addressed to the trial court’s failure to comply with Crim.R. 11 in accepting 
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Hudson’s pleas, and we will consider them together. They are as follows: 

THERE IS NO RECORD THAT THE TRIAL COURT COMPLIED 

WITH OHIO CRIM.R. 11(D). 

THE TRIAL COURT ERRED IN FAILING TO MAKE A RECORD. 

{¶ 11} In his first assignment of error, Hudson asserts that the “trial court erred in 

not entering into a meaningful dialogue with appellant about waiving his constitutional 

rights including the effects of a plea.” Hudson asserts that this Court “cannot review 

whether the plea represents a voluntary and intelligent choice among alternative courses 

of action open to defendant because there is no transcript of the plea.” Hudson further 

argues that “exposure to two misdemeanors which could result in 12 months in jail 

constitutes a serious offense,” and that his “plea and sentence should be vacated and 

remanded because the court failed to comply with Crim.R. 11(D) or 11(E).” 

{¶ 12} In his second assignment of error, Hudson asserts that the “trial court erred 

in not putting a negotiated plea in a felony case on the record.” He directs our attention 

to Crim.R. 11(F), which provides as follows: “When, in felony cases, a negotiated plea of 

guilty or no contest to one or more offenses charged or to one or more other or lesser 

offenses is offered, the underlying agreement upon which the plea is based shall be stated 

on the record in open court.” 

{¶ 13} We will first address Hudson’s conviction for failure to stop. Crim.R. 11 

provides in relevant part: 

* * * 

(D) Misdemeanor Cases Involving Serious Offenses. In 

misdemeanor cases involving serious offenses the court may refuse to 
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accept a plea of guilty or no contest, and shall not accept such plea without 

first addressing the defendant personally and informing the defendant of the 

effect of the pleas of guilty, no contest, and not guilty and determining that 

the defendant is making the plea voluntarily. * * * 

(E) Misdemeanor Cases Involving Petty Offenses. 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. 

{¶ 14} Crim.R. 2(C) defines a “serious offense” as “any felony, and any 

misdemeanor for which the penalty prescribed by law includes confinement for more than 

six months.” Crim.R. 2(D) defines a “petty offense” as “a misdemeanor other than a 

serious offense.” R.C. 2929.24(A) provides that “if the sentencing court imposing a 

sentence upon an offender for a misdemeanor elects or is required to impose a jail term 

on the offender pursuant to this chapter, the court shall impose a definite jail term that 

shall be one of the following: (1) For a misdemeanor of the first degree, not more than 

one hundred eighty days; * * *” 

{¶ 15} Failure to stop is a misdemeanor of the first degree, a petty offense, and the 

court was accordingly required to inform Hudson of the effect of his no contest plea, 

pursuant to Crim.R. 11(E). Crim.R. 11(B)(2) governs the effect of a no contest plea and 

provides that a “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 * * *.” 

{¶ 16} As this Court has previously noted: 
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* * * Although Crim.R. 11(E) does not require the trial court to engage 

in a lengthy inquiry when a plea is accepted to a misdemeanor charge 

involving a petty offense, the rule does require that certain information be 

given on the “effect of the plea.” [State v. Jones, 116 Ohio St.3d 211, 2007-

Ohio-6093]. Whether orally or in writing, a trial court must recite the 

appropriate language from Crim.R. 11(B) before accepting the plea. Id. 

State v. Bond, 2d Dist. Montgomery No. 24457, 2011-Ohio-3272, ¶ 8. 

{¶ 17} As noted above, Hudson’s pleas were not placed on the record. As this 

Court has further noted, “ ‘absent a transcript of the proceedings, this Court must presume 

regularity in the proceedings before the trial court’ regarding the court’s compliance with 

Crim.R. 11. State v. Kreuzer, 2d Dist. Greene No. 98-CA-100, 1999 WL 959206, *5 (Aug. 

6, 1999).” State v. Miller, 2d Dist. Montgomery No. 25893, 2014-Ohio-4508, ¶ 26. 

{¶ 18} Hudson acknowledged in his plea form for failure to stop in Case No. 2018 

TRD 1899 that he understood the difference between pleas of guilty, not guilty, and no 

contest, and that his plea was entered knowingly and voluntarily. Presuming regularity 

as we must, we have no basis to conclude that the court failed to comply with Crim.R. 

11(E) in accepting Hudson’s no contest plea to failure to stop. Hudson’s first assigned 

error is accordingly overruled as to the offense of failure to stop. 

{¶ 19} Our analysis is different regarding Hudson’s conviction for failure to comply. 

This is so because Hudson was initially charged with a felony of the third degree, in 

violation of R.C. 2921.331(B). While the court’s entry of disposition provides “Complaint 

Amended to 2921.331(A)(M-1),” there is no amended complaint in the record before us. 

The only complaint in the record charges Hudson with a violation of R.C. 2921.331(B), 
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with the specification that Hudson’s operation of the vehicle caused a substantial risk of 

serious physical harm to persons or property. 

{¶ 20} R.C. 1901.20 provides that “[t]he municipal court has jurisdiction to hear 

misdemeanor cases committed within its territory.” As noted by the First District: 

A municipal court has limited jurisdiction relative to felony charges. 

At the conclusion of the preliminary hearing, it may (upon finding probable 

cause to believe the accused committed the offense) bind the accused over 

to the court of common pleas, or find that there is probable cause that a 

misdemeanor has been committed by the accused and retain the matter for 

trial of the misdemeanor offense provided a complaint charging the 

misdemeanor is filed, or it may order the accused discharged. Crim.R. 

5(B)(4) and Crim.R. 5(B)(6). 

(Emphasis added). State v. Craig, 1st Dist. Hamilton No. C-850444, 1986 WL 3096, *1. 

See also State v. Nelson, 51 Ohio App.2d 31, 365 N.E.2d 1268 (8th Dist.1977). 

{¶ 21} Crim.R. 5(B) governs the procedure for preliminary hearings in felony 

cases, and Crim.R. 5(B)(6) provides: “In any case in which the defendant is ordered to 

appear for trial for any offense other than the one charged the court shall cause a 

complaint charging such an offense to be filed.” (Emphasis added). The record reflects 

that the municipal court failed to comply with Crim.R. 5(B)(6), because no complaint 

charging Hudson with failure to comply as a first degree misdemeanor was ever filed. 

We note that Crim.R. 7(A) provides that a “misdemeanor may be prosecuted * * * by 

complaint * * * in courts inferior to the court of common pleas.” (Emphasis added.) As 

further noted by the First District, the “complaint is essential to invoke the jurisdiction of 
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the court * * *.” Id. at *2. By accepting Hudson’s no contest plea to a charge under R.C. 

2921.331(A), a misdemeanor of the first degree, without an amendment of the complaint, 

and by finding Hudson guilty of that charge, the court acted without authority, and we 

conclude that its proceedings as to that offense are void.1 Hudson’s conviction for failure 

to comply is accordingly vacated. 

{¶ 22} Regarding Hudson’s second assignment of error involving the trial court’s 

failure to make the recitation required by Crim.R. 11(F) on the record, our conclusion that 

the court acted without authority in accepting Hudson’s no contest plea to failure to 

comply, necessitating the reversal of his conviction for that offense, renders analysis of 

this assignment of error moot. Hudson’s second assignment of error is overruled. 

{¶ 23} Hudson’s third assignment of error is as follows: 

INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO 

REQUEST A RECORD OF THE PLEAS. 

{¶ 24} According to Hudson, defense counsel “was ineffective because trial 

counsel prejudiced appellant for not demanding appellant’s plea be put on the record,” 

referring to Case No. 2018-CRA-885. He asserts that “there is a question regarding the 

initial charge of a felony,” and that the “lack of a record prejudiced appellant’s appeal.” 

We conclude that this assignment of error is rendered moot by virtue of our conclusion 

that the trial court lacked authority to address the charged offense without amendment of 

the complaint pursuant to Crim.R. 5(B)(6). 

 

1 We acknowledge that the prosecutor apparently sought to amend the felony complaint 

at the preliminary hearing stage but no new complaint was generated. Furthermore, the 

felony complaint was not dismissed as the plea form bears the felony complaint number, 

2018 CRA 885. 
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{¶ 25} The judgment of the municipal court is affirmed as to Hudson’s conviction 

for failure to stop and vacated as to his conviction for failure to comply. The matter is 

remanded for further proceedings consistent with this opinion as to charge of failure to 

comply. 

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

HALL, J. concurring: 

{¶ 26} In my opinion there was an adequate charging instrument giving the 

Municipal Court jurisdiction over the misdemeanor charge of failure to comply under R.C. 

2921.331(A). The disposition record reveals that the original complaint initiating the felony 

charge, a violation of R.C. 2921.331(B), was amended at bar as follows: “On motion of 

the State Complaint amended to: 2921.331(A)(M-1).” Crim.R. 7(D) allows liberal 

amendment of a charge to a lesser and included offense, and such a practice is done on 

the record verbally daily throughout Ohio. R.C. 2921.331(A) has been held to be a lesser 

and included offense of R.C. 2921.331(B). State v. Orr, 8th Dist. Cuyahoga No. 95344, 

2011-Ohio-1371, ¶18-19. 

{¶ 27} I distinguish Craig, 1st Dist. Hamilton No. C-850444, 1986 WL 3096, 

because my reading of that case indicates a felony indictment had been issued prior to 

completion of the municipal court preliminary hearing and prior to reduction of the charge 

to a misdemeanor in municipal court. That indictment eliminated jurisdiction of the 

municipal court to proceed further with the preliminary hearing or with reduction of the 

charge and a plea. See Crim.R. 5(B)(1) (“The preliminary hearing shall not be held, 

however, if the defendant is indicted.”). The case of Nelson, 51 Ohio App.2d 31, 365 
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N.E.2d 1268, also is somewhat different. There the preliminary hearing was completed 

and the trial court found no probable cause as to the charged felony of robbery, but it did 

find probable cause as to the misdemeanor offense of petty theft. Because the trial court 

made findings concluding the preliminary hearing and finding probable cause a 

misdemeanor had been committed, Crim.R. (5)(B)(6) required that “the court shall cause 

a complaint charging such offense to be filed.” There is no indication in the present case 

that a preliminary hearing was conducted. 

{¶ 28} I agree with the following conclusion of the Fifth District in State v. Trifelos, 

5th Dist. Stark No. CA-5809, 1982 WL 3005, *2 (June 3, 1982): “Where the State moves 

to amend an existing felony complaint filed in a municipal court to set forth a lesser 

included misdemeanor offense, and the court grants such motion with the concurr[e]nce 

of the defendant, Crim.R. 7(D) permits such amendment, and the requirements of Crim.R. 

5(B) are met so that the court has jurisdiction to retain the case for trial. This would 

obviously include jurisdiction to accept a plea.” 

{¶ 29} Nevertheless, because there is no transcript documenting the record of the 

plea or the amendment of the charge, I agree that the failure-to-comply conviction should 

be reversed, vacated, and remanded. We do not know precisely what happened in the 

trial court. Crim.R. 11(F) states: “When, in felony cases, a negotiated plea of guilty or no 

contest to one or more offenses charged or to one or more other or lesser offenses is 

offered, the underlying agreement upon which the plea is based shall be stated on the 

record in open court.” Because there appears to be no transcript, I conclude Crim.R. 11(F) 

was not complied with, and I therefore concur in the disposition of this case. 
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WELBAUM, P.J. dissenting: 

{¶ 30} I very respectfully dissent. The majority reverses Hudson’s conviction for 

failure to comply in violation of R.C. 2921.331(A) in concurring opinions that, in part, are 

based on the lack of a complete record. The opinions reverse for different reasons, and 

both assume facts not in the record. Judge Donovan’s lead opinion describes a 

scenario premised on assumed but unknown facts, upon which reversal may be correct. 

On the other hand, Judge Hall’s opinion describes a possible scenario where one may 

conclude the case should be affirmed. However, Judge Hall concurs in reversal based 

on the lack of a complete record. It is problematic that the merits of these well-written 

opinions languish in the uncertainty of facts caused by a lack of a complete record, which 

would decide the outcome. 

{¶ 31} In the absence of a complete record, an appellant has a duty to supplement 

the record. App.R. 9(A) provides that “[t]he trial court shall ensure that all proceedings 

of record are recorded by a reliable method, which may include a stenographic/shorthand 

reporter, audio-recording device, and/or video recording device.” App.R. 9(B)(1) further 

states that “it is the obligation of the appellant to ensure that the proceedings the appellant 

considers necessary for inclusion in the record, however those proceedings were 

recorded, are transcribed in a form that meets the specifications of App.R. 9(B)(6).” 

{¶ 32} In situations where no recording was made, or it was made and is 

unavailable for transcription, App.R. 9(B)(4) provides that an appellant may use App.R. 

9(C) or (D). App.R. 9(C) allows an appellant to prepare a statement of the proceedings, 

followed by the appellee’s objections, if any. The trial court then settles any disputes. 

Alternatively, the parties may agree, under App.R. 9(D), to a statement of the record for 
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purposes of appeal. App.R. 9(E) provides for supplementation or correction of the 

record. 

{¶ 33} Under well-established authority, where the record does not include a 

transcript of a hearing, the “Appellant has failed in his duty to provide this court with a 

record on appeal that exemplifies and demonstrates the claimed error. * * * Absent a 

record, we cannot presume that the trial court acted improperly or that Defendant suffered 

prejudice as a result. Under those circumstances we must presume the regularity and 

validity of the trial court proceedings, and affirm.” State v. Williams, 2d Dist. Clark No. 

06CA0120, 2007-Ohio-5754, ¶ 6 (no transcript of the resentencing hearing was provided). 

{¶ 34} Here, no transcript of the change of pleas in these cases was filed, which 

causes the confusion. Hudson’s attorney did file a motion to “supplement the record with 

any evidence relating to the plea, for example, Crim.R. 11 notifications, anything 

Appellant signed related to the plea and Sentencing Entries in the above captioned case” 

with our court. Hudson did not specifically request a transcript. We evidently denied the 

motion because the specific items requested were already part of the record. In any event, 

Hudson failed to comply with App.R. 9. 

{¶ 35} Even if we assume that the trial court did not record the change of plea 

proceedings, App.R. 9 is a required procedural step for allowing us to make an accurate 

determination. We must presume regularity and validity of all trial court proceedings. In 

the absence of either a record or the use of a proper substitute provided for in App.R. 9, 

in which error is demonstrated, the judgment of the trial court should be affirmed. 

Alternatively, I would order the Hudson to properly supplement the record with a transcript 

or to comply with App.R. 9 prior to our decision on the case. 
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{¶ 36} For these reasons, I very respectfully dissent. 

 

Copies sent to: 

Lenee Brosh 

Glenda A. Smith 

Hon. Gary A. Nasal