[Cite as State v. Briggs, 2017-Ohio-686.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2016-06-043

                                                   :            OPINION
    - vs -                                                       2/27/2017
                                                   :

HENRY L. BRIGGS,                                   :

        Defendant-Appellant.                       :



           CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                            Case No. 2015 TRC 08237



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for defendant-appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Henry L. Briggs, appeals from his conviction and

sentence in the Clermont County Municipal Court for operating a motor vehicle while under

the influence of alcohol. For the reasons set forth below, we affirm appellant's conviction and

sentence.

        {¶ 2} On June 3, 2015, appellant was pulled over by a Union Township police officer
                                                                     Clermont CA2016-06-043

after the officer noticed the vehicle appellant was driving lacked a rear license plate light.

Following the traffic stop, appellant was cited and charged with one count of operating a

vehicle while under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a), a

misdemeanor of the first degree, one count of OVI under R.C. 4511.19(B)(3), a misdemeanor

of the fourth degree, and one count of failing to have his rear license plate illuminated in

violation of R.C. 4513.05(A), a minor misdemeanor.

       {¶ 3} Appellant entered a not guilty plea to the charges and an attorney from the

public defender's office was appointed to his case. Appellant filed a combined motion to

dismiss and motion to suppress evidence on June 23, 2015. Appellant's motion came before

the court on August 6, 2015, and was continued in progress until September 8, 2015.

Appellant's presence was waived at the September 8, 2015 hearing, as appellant had

returned to college at Mississippi State University. On September 28, 2015, the municipal

court issued a decision denying appellant's motion in its entirety and setting the case for a

pretrial conference on October 6, 2015. The court ordered that appellant be present at this

conference.

       {¶ 4} On October 6, 2015, appellant failed to appear for the conference. As a result,

the court issued a bench warrant and set appellant's bond at $5,000 cash or professional.

Appellant returned to Ohio in May 2016, and, in lieu of his arrest, was summoned to appear

before a magistrate on May 17, 2016. A week later, on May 24, 2016, appellant appeared

before the court for a "plea or trial setting" with his public defender.

       {¶ 5} At this time, appellant sought a continuance so that he could obtain private

counsel to represent him. The court discussed appellant's absence, noting that appellant

had not appeared before it since before October 6, 2015, and that a bench warrant had been

issued. Appellant informed the court that he had gone back to Starkville, Mississippi to

attend school, but that he had "called in" before his October 6, 2015 court date to "let them
                                               -2-
                                                                    Clermont CA2016-06-043

know" he would not be present. The court expressed its concerns that appellant was not

taking the case seriously and that appellant might not show back up to court for further

proceedings. Nonetheless, the court granted a continuance. However, the court modified

appellant's bond to $50,000 cash or professional, stating:

              THE COURT: "Yeah. Well, I'll give you all of the time in the
              world to get an attorney. You're certainly entitled to it. I'll
              continue the matter over; however, I'm going to modify your bond
              to $50,000 cash or professional. I have great concerns,
              [appellant], one, that you take this matter seriously and two, that
              you'll even show up in the future. You've been gone for seven
              months. He's committed to the custody of the sheriff. The matter
              will be continued over. Seek counsel. Until then you're
              represented by the public defender.

Appellant was then taken into custody.

       {¶ 6} Approximately an hour later, appellant, accompanied by his public defender,

appeared before the court and pled no contest to OVI in violation of R.C. 4511.19(A)(1) in

exchange for the remaining charges being dropped by the state. The municipal court

accepted appellant's plea and sentenced him to 90 days in jail, with 80 days suspended.

With respect to the remaining 10-day jail term, the court ordered appellant to attend three

days at the Residential Driver's Intervention Program ("RDIP"), spend five days in jail "mainly

for [his] failure to appear," and spend 18 days on electronically monitored house arrest in lieu

of the remaining two days. The court also suspended appellant's license and ordered

appellant to serve two years of non-reporting probation, complete 40 hours of community

service, and pay a $450 fine.

       {¶ 7} Thereafter, appellant retained private counsel. On May 26, 2016, appellant's

counsel moved to modify appellant's sentence on the basis that "[the] three days [appellant]

has served so far has been quite the experience to the extent that the purposes and

principles of sentencing have been achieved * * * and [appellant] has been deterred from

ever missing court again, deterred from consuming alcohol and punished." The court

                                              -3-
                                                                                 Clermont CA2016-06-043

granted appellant's motion and suspended the remaining two days left on appellant's jail

sentence, concluding that appellant's three days in jail "had [an] appropriate deterrent effect."

         {¶ 8} Appellant appealed his conviction and sentence, raising two assignments of

error.

         {¶ 9} Assignment of Error No. 1:

         {¶ 10} APPELLANT'S PLEA OF NO CONTEST WAS NOT KNOWINGLY,

INTELLIGENTLY AND VOLUNTARILY ENTERED.

         {¶ 11} In his first assignment of error, appellant argues his no contest plea is invalid

because his plea was not knowingly, intelligently, and voluntarily entered.

         {¶ 12} "To be valid, a plea must be knowingly, intelligently, and voluntarily made."

State v. Bush, 12th Dist. Clermont No. CA2015-06-046, 2016-Ohio-551, ¶ 8, citing State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7. "Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and the

Ohio Constitution." Veney at ¶ 7. A trial court's acceptance of a defendant's plea of guilty or

no contest to a petty misdemeanor traffic offense is governed by Traf.R. 10(D). State v.

Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, syllabus; State v. Johnson, 12th Dist. Butler No.

CA2008-03-094, 2009-Ohio-432, ¶ 7.1

         {¶ 13} Pursuant to Traf.R. 10(D), "[i]n misdemeanor cases involving petty offenses,

except those processed in a traffic violations bureau, 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." A trial court complies with Traf.R.

10(D) "by informing the defendant of the information contained in Traf.R. 10(B)." Watkins at



1. A "petty offense" is "an offense for which the penalty prescribed by law includes confinement for six months or
less." Traf.R. 2(D). Appellant was charged with OVI in violation of R.C.4511.19(A)(1)(a), a misdemeanor of the
first degree. A first-degree misdemeanor is punishable by up to six months in jail. See R.C. 2929.24(A)(1).
Accordingly, the offense in question is a petty misdemeanor offense subject to the requirements of Traf.R. 10(D).
                                                       -4-
                                                                     Clermont CA2016-06-043

syllabus. A court must, therefore, inform a defendant that "[t]he 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 such plea or admission shall not be used against the defendant in any

subsequent civil or criminal proceeding." Traf.R. 10(B)(2).

       {¶ 14} In the present case, appellant does not claim that the municipal court failed to

comply with Traf.R. 10(D). Rather, appellant argues his plea was not voluntarily entered

because he was "coerced" into entering a no contest plea by the court's actions in increasing

his bond from $5,000 to $50,000. He argues, "[t]he court's bond modification was the tool

used to convince [him] to resolve the case then-and-there. But for [his] incarceration, the

plea would not have been entered." Because appellant is challenging his plea on the basis

that it was not voluntarily entered, he must show a prejudicial effect. See State v. Nero, 56

Ohio St.3d 106, 108 (1990). "The test is whether the plea would have otherwise been

made." Id.

       {¶ 15} Having thoroughly reviewed the record, we find no merit to appellant's

assigned error. The record demonstrates that appellant's decision to enter a no contest plea

was voluntary, knowing, and intelligent. The municipal court offered to continue proceedings

to allow appellant the opportunity to retain counsel. However, the court stated it was

increasing appellant's bond due to his failure to appear at a prior hearing. The court

repeatedly indicated that the increase in appellant's bond was a result of his failure to appear,

and was not intended to pressure him into a plea. Specifically, the court had the following

discussion with appellant:

              THE COURT: I want to make sure that you understand I
              modified your bond because you haven't been here in seven
              months. It has nothing to do with your guilt or innocence of the
              charge. As far as I'm concerned you're innocent until proven
              guilty. You showing up, appearing on a charge is separate. Do
              you understand? Totally separate matters. So, you know, I don't
              want you to feel that you're pressured to enter a plea because I
                                               -5-
                                                                   Clermont CA2016-06-043

             modified your bond. Chances are, I told [your counsel], even if
             you entered a plea, I need to know more about you, so you may
             not get out today anyway. You understand?

             [APPELLANT]: Yes, sir.

             THE COURT: So I don't want that to be something that's figured
             into your mind that, oh, I'll enter a plea here, I'll get this thing
             taken care of and I'll move on down the road. I modified your
             bond because you haven't been here in seven months; do you
             understand?

             [APPELLANT]: Yes, sir.

             THE COURT: Apples and oranges. So I don't want you to feel
             pressured in any way to enter a plea. That's separate and
             distinct from why you're here. So moments. . . you know, an hour
             ago you wanted to seek private counsel. Now, you want to enter
             a plea. I'm concerned about that, you understand?

             [APPELLANT]: Yes, sir.

       {¶ 16} Thereafter, the court explained to appellant the effect of a no contest plea.

The court then inquired if appellant had any questions or if anyone put any pressure on him

to enter a no contest plea, to which appellant responded, "No, sir." The court then took the

opportunity to again advise appellant that he did not have to enter a no contest plea as

follows:

             THE COURT: Now, you understand, I went over before, you
             don't have to enter a plea today; you understand that?

             [APPELLANT]: Yes, sir.

             THE COURT: I modified your bond. I'm not mad at you, okay?
             I'm not…you know, you're not going to make me happy by
             entering a plea; you understand? I'm trying to indicate to you as
             strongly as I can that there's no pressure for you to enter a plea
             here today. I modified your bond because you haven't been here
             in seven months; you understand?

             [APPELLANT]: Yes, sir.

             THE COURT: But the fact that you quickly want to enter a plea, I
             want to make sure you're doing it for the right reasons.


                                             -6-
                                                                     Clermont CA2016-06-043

              [APPELLANT]: I am.

              THE COURT: Are you?

              [APPELLANT]: Yes.

              THE COURT: Because you want to take responsibility for the
              offense; is that right?

              [APPELLANT]: Just honestly, I thought about it. I should just be
              grateful for what the defense [sic] has offered me as is. Really.

       {¶ 17} In addition to being assured by appellant that he desired to enter a no contest

plea to the OVI charge, the court spoke with appellant's attorney about appellant's "change of

heart." The public defender informed the court that he had discussed the matter with

appellant, that appellant no longer wished to seek private counsel, and that appellant wished

to enter a no contest plea. Counsel also informed the court that prior to the court's bond

modification, in counsel's "private conversation before he [appellant] was locked up we were

very close to considering doing that today anyway."

       {¶ 18} Given the foregoing, we find no merit to appellant's claim that the municipal

court's bond modification was a tool used to coerce him into entering a no contest plea.

Rather, the record reflects that appellant's bond was modified as result of his failure to

appear in the case. The record also reflects that appellant voluntarily, intelligently, and

knowingly entered his plea after being advised of his rights in accordance with Traf.R. 10 and

after receiving repeated assurances from the court that there was no pressure for him to

enter a plea. Appellant's first assignment of error is, therefore, without merit and is overruled.

       {¶ 19} Assignment of Error No. 2:

       {¶ 20} THE TRIAL COURT ERRED IN IMPOSING A FIVE-DAY JAIL SENTENCE

FOR FAILURE TO APPEAR.

       {¶ 21} In his second assignment of error, appellant challenges the municipal court's

imposition of his jail sentence. Appellant argues the municipal court erred when imposing his
                                               -7-
                                                                      Clermont CA2016-06-043

sentence because the court sentenced him to five days in jail for his failure to appear, an

offense for which he was not charged or convicted.

        {¶ 22} As an initial matter, we must determine whether appellant's assigned error is

ripe for our review. As this court has previously acknowledged, "[a] defendant convicted of a

criminal offense must, where practicable, seek a stay of a sentence in order to defeat a claim

of mootness." (Emphasis sic.) Middletown v. Allen, 63 Ohio App.3d 443 (12th Dist.1989),

paragraph one of the syllabus. "When an appellant completes a misdemeanor sentence

without requesting a stay pending appeal and does not offer evidence from which the

appellate court could infer that the appellant would suffer collateral disability or loss of civil

rights stemming from the misdemeanor conviction, the appeal is moot." State v. Stutler, 12th

Dist. Butler No. CA2014-06-133, 2015-Ohio-726, ¶ 7, citing State v. Boone, 9th Dist. Summit

No. 26104, 2013-Ohio-2664, ¶ 7. See also State v. Berndt, 29 Ohio St.3d 3, 4 (1987). "The

burden of presenting evidence that he has such a 'substantial stake in the judgment of

conviction' is upon the defendant." Id., quoting State v. Wilson, 41 Ohio St.2d 236, 237

(1975).

        {¶ 23} In the present case, appellant was sentenced to community control and to 90

days in jail, with 80 days suspended. With respect to the remaining 10-day jail sentence, the

court broke the term up, giving appellant five days of "actual jail * * *mainly for your failure to

appear," three days at RDIP, and 18 days of house arrest in lieu of the remaining two days.

The record reflects that appellant has already served his jail-sentence. Therefore, there is no

relief we can provide appellant regarding the court's imposition of a jail sentence. See, e.g.,

Stutler at ¶ 8; Columbus v. Duff, 10th Dist. Franklin No. 04AP-901, 2005-Ohio-2299, ¶ 12-13.

Further, appellant has not claimed, nor demonstrated, that he will suffer some collateral

disability or loss of civil rights resulting from his conviction. His assigned error is, therefore,

moot.
                                                -8-
                                                                       Clermont CA2016-06-043

       {¶ 24} However, even if appellant's second assignment of error were not moot, his

argument that the municipal court erred in imposing his sentence is without merit. Pursuant

to R.C. 2929.21 and 2929.22, trial courts have broad discretion in misdemeanor sentencing

to fashion sentences that are appropriate to each case. State v. Florence, 12th Dist. Butler

No. CA2013-08-148, 2014-Ohio-2337, ¶ 25; State v. Lunsford, 12th Dist. Brown No. CA2010-

10-021, 2011-Ohio-6529, ¶ 25. When determining the appropriate sentence, the trial court

must be guided by the purposes of misdemeanor sentencing which are "to protect the public

from future crime by the offender and others and to punish the offender." R.C. 2929.21(A).

The trial court must also consider the factors listed in R.C. 2929.22(B)(1), including the

nature and circumstances of the offense, and may consider any other factors that are

relevant to achieving the purposes and principles of misdemeanor sentencing.                  R.C.

2929.22(B)(2).

       {¶ 25} In the present case, the record from the May 24, 2016 hearing, as well as

appellant's sentencing entry, indicates the municipal court "considered the principles and

purposes of sentencing under Section 2929.21 of the ORC, and the sentencing factors of

Section 2929.22 of the ORC" in imposing appellant's sentence for his OVI conviction. The

court discussed the seriousness of appellant's conduct and the threat he posed to the public

on the night of the incident. The court also considered appellant's failure to appear in the

case for more than seven months in fashioning appellant's sentence. Although the court

inartfully stated it was imposing "actual jail" time "mainly for your failure to appear," the record

demonstrates appellant's failure to appear was merely a consideration of the court for

purposes of sentencing appellant on the OVI offense. As this court, and many other

appellate courts, have recognized, a defendant's failure to appear is an appropriate factor for

a court to consider when evaluating an offender's likelihood of recidivism. State v. Endress,

12th Dist. Butler No. CA2007-03-079, 2008-Ohio-1666, ¶ 4; State v. Williams, 7th Dist.
                                                -9-
                                                                 Clermont CA2016-06-043

Mahoning No. 11 MA 131, 2012-Ohio-6277, ¶ 69; State v. Daniels, 1st Dist. Hamilton Nos. C-

010070 and C-010087, 2001-Ohio-8749.          Therefore, as the record reflects the court

considered the purposes of sentencing under R.C. 2929.21 and 2929.22 and sentenced

appellant within the statutory limits for a first-degree misdemeanor in accordance with R.C.

2929.24(A), we find no error in the municipal court's imposition of appellant's sentence.

       {¶ 26} Accordingly, for the aforementioned reasons, appellant's second assignment

of error is overruled.

       {¶ 27} Judgment affirmed.


       PIPER and M. POWELL, JJ., concur.




                                            - 10 -
