[Cite as State v. Brown , 2021-Ohio-3443.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. ASHLEY BROWN Appellant C.A. No. 19CA011588

APPEAL FROM JUDGMENT ENTERED IN THE LORAIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. 2019CRB01249

DECISION AND JOURNAL ENTRY Dated: September 30, 2021

TEODOSIO, Judge. {¶1} Appellant, Ashley Brown, appeal s from her conviction for aggrav ated menacing in the Lorain Municipal Court. T his Court reverses and remands

. I. {¶2} Ms. Brown was charged with misdemeanor aggravated menacing, in violation of R.C. 2903.21(A). After a plea hear ing, the trial court filed a journal entry stating that Ms. Brown pled no contest and that the court accepted the plea and found her guilty. The court sentenced her to a $150.00 fine and 180 days in jail, but suspended the f ine as well as 150 days of the jail

sentence. The court ordered the remaining 30 days to be served concurrently with her sentence in a separate, child endangering case. The court placed her on intensive supervised probation for 2 years. {¶3} Ms. Brown now appeals from her c onviction and raises one assign ment of error

for this Court’s review.2

II.

ASSIGNMENT OF ERROR

MS. BROWN WAS PREJUDICED AND DENIED DUE PROCESS WHEN THE TRIAL COURT FAILED TO FULLY INFORM HER OF HER CONSTITUTIONAL RIGHT TO TRIAL AND THE EFFECT OF HER NO CONTEST PLEA. {¶4} In her sole assignment of error, Ms. Brown argues that the tria l court failed to advise her of her constitutional right to a trial and the effec t of her no contest plea. We agree that the court erred in failing to infor m her of the effect of her p lea. {¶5} “A plea is invalid where it has not been entered in a knowing, intelligent, and voluntary manner.” State v. Farnsworth , 9th Dist. Medina No. 15CA0038-M, 2016-Ohio-7919, ¶ 4. “A trial court’s obligati ons in accepting a plea depend u pon the level of offense to which the defendant is pleading.” State v. Smith , 9th Dist. Medina No. 14CA0122-M, 2016-Ohio-3496, ¶

6. “If a misdemeanor case involve s a serious offense, the cour t must address the defendant personally, inform her of the effect of her plea, determine tha t she is making the plea voluntarily, and, if she is unrepresented, a ddress her right to counsel.” Twinsburg v. Milano , 9th Dist. Summit No. 28674, 2018-Ohio-1367, ¶ 8, citing Crim.R. 11(D). I f a misdemeanor case involves a petty offense, the plain langua ge of Crim.R. 11(E) only requi res the court to inform the defendant of the effect of the plea. Id. A misdemeanor is a “serious offense” if “the penalty prescribed by law includes confinement for more than six months .” Crim.R. 2(C). Any other misdemeanor is a “petty offense.” See Crim.R. 2(D). {¶6} Ms. Brown was charged with aggravated menacing, a misdemeanor o f the first degree. See R.C. 2903.21(A)-(B). Pursuant to R.C. 2929.24(A)(1), the maxi mum jail sentence

for misdemeanors of the first d egree is 180 days. Consequently , Ms. Brown’s aggravated menacing charge was a petty offense.3

{¶7} To begin with, we find no merit in Ms. Brown’s argument that th e trial court failed to inform her of her right to a jury trial. Because she was only pleading no contest to a petty offense, the trial court wa s not required to inform her o f all the constitutional protections she would waive upon entering her plea. See Smith at ¶ 8, citing State v. Watkins , 99 Ohio St.3d 12, 2003-Ohio-2419, ¶ 28. {¶8} Instead, the trial court was onl y required to inform Ms. Brown of the effect of her no contest plea. See Milano at ¶ 8; Crim.R. 11(E). “[T]o satisfy the requirement of infor ming a defendant of the effect of a pl ea, a trial court must inform th e defendant of the appropriate language under Cr im.R. 11(B).” State v. Jones , 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 25. This may be done “orally or in writing * * *.” Id. at ¶ 51. Crim.R. 11(B)(2) sets forth the effect of a no contest plea as follows: “The 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 * * * complaint, and the plea or admission shall not be used agai nst the defendant in any subseq uent civil or criminal proceeding.” {¶9} Because the right to be informed of the effect of a plea is a n onconstitutional one, it is “‘subject to review under a standard of substantial compl iance.’” Milano at ¶ 11, quoting State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12. In order to substan tially comply with Crim.R. 11, “a slight deviation from the text of the rule is pe rmissible; so long as the totality of the circumstances indicates that ‘the defendant subjectively un derstands the implications of [her] plea and the rights [s he] is waiving[.]’” State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 31, quoting State v. Nero , 56 Ohio St.3d 106, 108 (1990). If substantial compliance is not achieved, a reviewing court must determine if the trial court p artially complied or failed to comply with the rule. Id. at ¶ 32. A trial court’s complete failure to comply with Crim .R. 114

requires the plea to be vacated, but if the court partially com plied with the rule the defendant must demonstrate prejudice for the plea to be vacated. Id. See also Milano at ¶ 11, quoting State

v. Johnson , 9th Dist. Summit No. 27550, 2016-Ohio-480, ¶ 8; but see Jones at ¶ 52, citing Griggs at ¶ 12 (stating the failure to comply with nonconstitutional rights, such as the information in Crim. R. 11(B)(1), will not invalidate a plea un less the defendant thereby suffered prejudice). “The test for prejudice is ‘whether the plea would have otherwise been made.’”

Jones at ¶ 52, quoting Nero at 108. {¶10} Upon review, the transcript of the Ms. Brown’s plea hearing doe s not reflect that

the trial court ever informed he r orally that (1) her plea of n o contest is not an admission of her guilt, but is an admission of the truth of the facts alleged in the complaint, or (2) her plea or admission shall not be used again st her in any subsequent civil or criminal proceeding; nor does the record contain any document s signed by Ms. Brown demonstrat ing that the court informed her of the effect of her plea. Compare Johnson at ¶ 10 (noting the complete absence of any discussion indicating that the t rial court informed Johnson abo ut the effect of his plea); State v.

Fraraccio , 9th Dist. Summit No. 18040, 1997 WL 270537, *1 (May 14, 1997) (stating “[t]he trial court’s journa l entry, standing alone, will not suffice” to affirmatively show in the record that a no contest plea was knowingly, intelligently, and volunt arily given). The record does contain a written waiver of trial by jury, which appears to hav e been electronically signed by both Ms. Brown and her attorney, and the plea transcript reveal s that the court orally discussed

with Ms. Brown the recommended sentence and its inclination to follow that recommendation. Nevertheless, the Supreme Court of Ohio has made it clear that the “effect of the plea” requirement satisfied by informi ng the defendant of Crim.R. 11( B)(2) cannot alternatively be satisfied by simply informing th e defendant of the maximum sent ence and the right to a jury5

trial. See Jones at ¶ 22. Because those three concepts are distinct, “a statem ent about the effect of a plea is separate from statements relating to a maximum pen alty and the right to jury trial.”

Id. We therefore cannot conclude tha t the trial c ourt advised Ms. Brown of the effect of her no contest plea either orally or in writing. {¶11} In addition, it appears from the transcript that Ms. Brown neve r actually entered a verbal plea of no contest during the plea hearing. Compare Johnson at ¶ 10 (noting that Johnson never entered a guilty plea to his petty offense in open court) ; Richmond Heights v. Myles , 8th Dist. Cuyahoga No. 84638, 2005-Ohio-509, ¶ 11 (noting Myles did not enter a verbal no contest plea to his petty offense at a ny point during the hearing). See also Cleveland v. Paramount Land Holdings, L.L.C. , 8th Dist. Cuyahoga No. 95448, 2011-Ohio-3383, ¶ 13 (“At its m ost basic level, the court failed to comply with Crim.R. 11 because it failed to even take the plea of no contest from [the defendant].”). Inst ead, right after the trial court communicated to Ms. Brown that the prosecutor’s offer was for her t o plead no contest for a 30-day jail sentence to run concurrent to

her other case with credit fo r time served, the following excha nge occurred: THE COURT: [D]o you want to do tha t or leave it set for trial? THE DEFENDANT: I just want to get it over with. THE COURT: You want to get it over with?

THE DEFENDANT: Yeah. THE COURT: I’ll ask you to sign two forms. 1 If you sign them, you’ll be giving up your right to the trial. Okay? So, we’ll have you sign that at the bailiff station.

1 Once again, while the record cont ains an electronically-signed written waiver of trial by jury, which is presumably one of the “two forms” mentioned by t he court, we can find no other document in the record, signed or unsigned, demonstrating that Ms. Brown was informed of the effect of her plea.6

A vague statement to th e court that one simply wishes “to get i t over with” could conceivably mean any number of things, but it is certainly not the function al equivalent of a plea of no contest. Moreover, the trial c ourt asked for and received a br ief summary of the facts of the case from the prosecutor, see R.C. 2937.07, and asked defense counsel and Ms. Brown if they would like to say anything, but the cour t did not then orally state t hat it was accepting a plea from Ms. Brown, nor did it make a fi nding of guilt in open court. Compare Johnson at ¶ 10, fn. 1 (noting the court’s failure to make a finding of guilt in open court). Instead, after Ms. Brown was afforded the opportunity to sp eak, the court immediately procee ded to sentencing. {¶12} Due to the lack of any indication in the record that the trial court informed Ms. Brown, either orally or in writi ng, of the effect of her no con test plea, we determine that there is a complete lack of compliance with Crim.R. 11. See Johnson at ¶ 10. Consequently, Ms. Brown

need not demonstrate that she s uffered prejudice as a result of the court’s noncompliance with

Crim.R. 11. See id. ; Clark at ¶ 31. See also Cleveland v. Adams , 8th Dist. Cuyahoga No. 97523, 2012-Ohio-1063, ¶ 8-9 (determining that the trial court complet ely failed to “strictly or substantially” comply with Crim.R. 11 since “[a] review of the transcript * * * reveals that the trial court did not advise [the de fendant] of the effect of the no contest pleas”). We must

conclude that Ms. Brown’s no c ontest plea was invalid—as it was not knowingly, intelligently, and voluntarily made—and that he r conviction must be vacated. See Johnson at ¶ 10. {¶13} Ms. Brown’s sole assignmen t of error is sustained.

III. {¶14} Ms. Brown’s sole assignment of error is sustained. The judgmen t of the Lorain Municipal Court is reversed, and the matter is remanded for pro ceedings consistent with this opinion.7

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Lorain Municipal Court, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

THOMAS A. TE ODOSIO FOR THE COURT

HENSAL, P. J. CONCURRING. {¶15} I would reverse solely on the ground that the record does not s upport that Ms. Brown entered a plea of no contest.8

CARR, J. CONCURRING. {¶16} I concur in the majority’s judgm ent but write separately to exp ress my concern that we have reached the point w here failing to extend the prot ections of Crim.R. 11(C) to defendants charged with misdemeanors will ultimately lead to so me extremely harsh results. It has been nearly 20 years since the Supreme Court decided State v. Watkins , 99 Ohio St.3d 12, 2003-Ohio-2419. That case involved a second-time DUI offender, meaning the high court’s holding was predicated on an app lication of the Ohio Traffic Ru les because the offender was charged with a petty misde meanor traffic offense. Watkins at ¶ 1, 9. {¶17} In the case before us, Ms. Brown was charged with misdemeanor a ggravated menacing. As noted by the majority, Ms. Brown never actually e ntered a no contest plea and instead simply expressed a preference to “get it over with.” I t is not uncommon for defendants charged with petty misdemeanor offenses to adopt a similar atti tude given that declining to contest the charge will not result in a lengthy term of incarce ration, at least in the short term. This is a dangerous approach to misdemeanor proceedings given t hat sentencing enhancement schemes have become more sophisti cated over the past two decade s and the collateral consequences associated with misdemeanor offenses have also mul tiplied. Petty misdemeanor convictions can also carry jail sentences of up to six months. See State v. Frederick , 9th Dist. Wayne No. 18AP0005, 2020-Ohio-714, ¶ 8 (recognizing that while the United States Constitution extends the right to counsel upon actual incarcera tion, Ohio has extended greater protections to defendants facing significant penalties, includi ng the possibility of incarceration.). I would strongly encourage the S upreme Court to reexamine the q uestion of whether

misdemeanor offenders should be a fforded the protections set fo rth in Crim.R. 11(C) prior to entering a plea of guilty or no contest.9

APPEARANCES: DENISE G. WILMS. Attorney a t Law, for Appellant. ROCKY RADEFF, Prosecuting Attorney, for Appellee.