[Cite as Cleveland Hts. v. Brisbane, 2016-Ohio-4564.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 103459




                                 CITY OF CLEVELAND HEIGHTS

                                                              PLAINTIFF-APPELLEE

                                                        vs.

                                       ALPHONSO BRISBANE

                                                              DEFENDANT-APPELLANT




                                          JUDGMENT:
                                    REVERSED AND REMANDED




                                       Criminal Appeal from the
                                   Cleveland Heights Municipal Court
                                        Case No. TRC-14-05027

        BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: June 23, 2016
FOR APPELLANT

Alphonso S. Brisbane, pro se
5812 Monica Lane
Cleveland, Ohio 44125


ATTORNEY FOR APPELLEE

Tiffany A. Hill
Cleveland Heights City Prosecutor
Cleveland Heights City Hall
40 Severance Circle
Cleveland Heights, Ohio 44118
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Alphonso Brisbane, challenges his conviction for operating a vehicle

while intoxicated. In his pro se brief, he asserts errors related to suppression of evidence,

suspension of his driver’s license, representation by an attorney that had withdrawn from the

case, and speedy trial. After a thorough review of the record and law, this court reverses

appellant’s plea and conviction.

                              I. Factual and Procedural History

       {¶2} On April 24, 2014, Sergeant John Gideon, a Cleveland Heights police officer,

observed a car traveling at a high rate of speed on Monticello Boulevard in Cleveland Heights,

Ohio. The radar device in the sergeant’s police cruiser indicated appellant was traveling 49

m.p.h. in a 35 m.p.h. zone.

       {¶3} After determining that the vehicle was speeding, the sergeant activated his overhead

lights and sirens and attempted to pull the vehicle over. The suspect’s vehicle did not stop.

Instead, the driver of the vehicle attempted to evade the officer for approximately one mile —

failing to stop at a number of stop signs during the course of the chase. The vehicle eventually

stopped in a driveway, and Sergeant Gideon observed signs of intoxication when questioning

appellant — the driver of the car.

       {¶4} The officer attempted to administer field sobriety tests, but appellant refused to

complete the tests as instructed. Specifically, a horizontal gaze nystagmus test was attempted,

but appellant would not follow the given instructions. Appellant was instructed several times to

follow Sergeant Gideon’s finger with his eyes while keeping his head still. Appellant kept

moving his head rather than following the officer’s finger by gazing sideways. Appellant was
arrested and transported to Cleveland Heights jail after several failures to comply with the

instructions for the administration of this test. There, he refused a breath test. After the refusal,

Cleveland Heights police processed the necessary forms for an automatic license suspension

(“ALS”).

       {¶5} On April 28, 2014, appellant was charged with operating a vehicle under the

influence of alcohol in violation of R.C. 4511.19(A)(1)(a) with a notice of two prior violations

within six years, driving with a suspended license in violation of Cleveland Heights Codified

Ordinances (“C.H.C.O.”) 335.071, failure to reinstate a driver’s license in violation of C.H.C.O.

335.073, reckless operation of a motor vehicle in violation of C.H.C.O. 333.09, speeding in

violation of C.H.C.O. 333.03(B), and failure to stop at a stop sign in violation of C.H.C.O.

331.19. Appellant was appointed counsel, and he signed a waiver of speedy trial rights.

       {¶6} Appellant filed a motion to suppress the evidence against him arguing the initial stop

was unlawful and therefore the evidence that flowed from it was not admissible. Further,

appellant challenged the admission of evidence related to his refusal to submit to a breath test

and any statements he made before being advised of his rights following arrest as set forth in

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       {¶7} The trial court held a hearing on the suppression motion and heard testimony from

the arresting officer. The officer supplied the above-mentioned facts and testified to appellant’s

refusal to take a breath test after being properly informed of the consequences of refusal. A

45-minute video documenting appellant’s time at the Cleveland Heights jail during his booking

and the attempted administration of the breath test was also played by appellant. The trial court

denied appellant’s motion to suppress.

       {¶8} The case was delayed for a number of reasons, including appellant’s failure to
appear at a pretrial conference, the withdrawal of appellant’s first attorney, the appointment and

withdrawal of appellant’s next attorney, and the appointment of new counsel. After several

continuances that resulted from these events, trial was finally scheduled for July 16, 2015. On

that date, appellant accepted a plea agreement with the state and a change of plea hearing was

held.   Appellant entered a no-contest plea to operating a vehicle while intoxicated with a

specification that it was the third such conviction in six years.       The other charges were

dismissed, the court found him guilty, and a sentencing hearing was set for August 24, 2015.

        {¶9} Appellant’s attorney, who had filed a motion to withdraw on July 8, 2015, that was

granted on the day of the change of plea hearing, agreed to represent appellant during the

sentencing hearing. There, the trial court imposed a six-month jail sentence with all but 30-days

suspended. The court also imposed a fine of $2,700 with all but $850 suspended. The court

imposed one year of active community control followed by one year of inactive community

control, required appellant to attend 15 Alcoholics Anonymous meetings, and required

completion of an alcohol abuse program. Finally, the court suspended appellant’s driver’s

license for a period of 18 months without any credit for the time under which his license was

suspended as a result of the ALS.

        {¶10} Appellant filed a timely appeal assigning seven errors for review:

        I. The trial court erred in denying [appellant’s] motion to suppress all evidence
        based on a lack of a valid probable cause for the stop, search and [seizure].

        II. The trial court erred by allowing an invalid BAC report into evidence.

        III. The trial court erred in allowing an inconclusive field sobriety test into
        evidence.

        IV. The trial court erred in denying the appeal to terminate [appellant’s]
        administrative license suspension.
       V. The trial court erred by allowing attorney Larry G. Smith, to represent and
       negotiate a plea deal on [appellant’s] behalf after knowing that his motion to
       withdraw [as] counsel was granted by the trial court on July 8, 2015 prior to the
       unwanted bench trial scheduled for July 16, 2015, without informing [appellant].

       VI. The trial court erred by denying [appellant’s] motion to dismiss based on the
       speedy trial statute pursuant to R.C. 2945.71 and the Fifth and Fourteenth
       Amendments to the United States Constitution.

       VII. The trial court erred by suspending [appellant’s] driver’s license from
       August 24, 2015 to February 2, 2017 without giving any credit for the time
       already served (August 27, 2014 - August 24, 2015) by [appellant].

                                     II. Law and Analysis

                                   A. Suppression of Evidence

       {¶11} Appellant’s first three assignments of error attack the validity of his initial traffic

stop and the admission of various pieces of evidence that resulted from the stop.

                        1. Reasonable Suspicion of Criminal Activity

       {¶12} In his first assignment of error, appellant claims there was an insufficient basis to

stop and subsequently question him. Appellant claims all the evidence against him should have

been suppressed for this reason.

       {¶13} This court reviews a decision on a suppression motion under a mixed standard of

review. “In a motion to suppress, the trial court assumes the role of trier of fact and is in the

best position to resolve questions of fact and evaluate witness credibility.” State v. Curry, 95

Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court must accept the

trial court’s findings of fact in ruling on a motion to suppress if the findings are supported by

competent, credible evidence. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8.

       {¶14} The Fourth Amendment of the United States Constitution, as well as Article I,
Section 14, of the Ohio Constitution, prohibit unreasonable searches and seizures absent

probable cause.    This includes the stop of automobiles and the seizure of its occupants.

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), paragraph two of the

syllabus. Where an officer stops a motorist after observing a violation of a traffic law, probable

cause exists for the detention in order to issue a citation. Dayton v. Erickson, 76 Ohio St.3d 3,

11-12, 665 N.E.2d 1091 (1996). “[I]n assessing whether the police had probable cause to arrest

for OVI, we must determine ‘whether, at the moment of arrest, the police had information

sufficient to cause a prudent person to believe that the suspect was driving under the influence.’”

Cleveland v. Reese, 8th Dist. Cuyahoga No. 100579, 2014-Ohio-3587, ¶ 23, quoting Middleburg

Hts. v. Gettings, 8th Dist. Cuyahoga No. 99556, 2013-Ohio-3536, ¶ 26, citing Beck v. Ohio, 379

U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

       {¶15} Here, Sergeant Gideon testified that he observed appellant’s vehicle traveling over

the posted speed limit within the officer’s jurisdiction.      Sergeant Gideon testified at the

suppression hearing that appellant then failed to heed the signals of overhead lights and sirens.

Sergeant Gideon also testified that appellant ran stop signs while attempting to evade him for a

short distance. The chase finally ended in a driveway approximately one mile away from where

the officer attempted to initiate a traffic stop. This presents sufficient evidence of criminal

activity for Sergeant Gideon to initiate a traffic stop. After appellant was apprehended, Sergeant

Gideon learned that appellant’s driver’s license was suspended. Sergeant Gideon testified that

appellant’s failure to comply with the order or signal of a police officer and driving with a

suspended license were offenses for which appellant could be and was arrested.

       {¶16} “Once a driver has been lawfully stopped, however, an officer may not request a

motorist to perform field sobriety tests unless the request is separately justified by a reasonable
suspicion based upon articulable facts that the motorist is intoxicated.”            Parma Hts. v.

Dedejczyk, 8th Dist. Cuyahoga No. 97664, 2012-Ohio-3458, ¶ 29, citing State v. Evans, 127

Ohio App.3d 56, 62, 711 N.E.2d 761 (11th Dist.1998), citing State v. Yemma, 11th Dist. Portage

No. 95-P-0156, 1996 Ohio App. LEXIS 3361 (Aug. 9, 1996). The lesser standard of reasonable

articulable suspicion of criminal activity requires this court to review the reasonableness of the

detention for further investigation based on the totality of the circumstances. Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

        {¶17} Sergeant Gideon testified that when talking with appellant, he observed that

appellant had glassy, blood-shot eyes, slurred speech, and smelled of alcohol. Sergeant Gideon

also observed appellant exhibit a lack of coordination. The officer then attempted to administer

field sobriety tests, and appellant refused to complete those tests according to the given

instructions. Appellant was then transported to Cleveland Heights jail, where he refused a

breath test.

        {¶18} In a case with similar evidence of intoxication, this court affirmed the

administration of field sobriety tests and the subsequent arrest of the motorist:

        Here, the record reflects [the arresting officer] had sufficient information to cause
        a prudent person to believe [the motorist] was driving while intoxicated: his
        estimation of her speeding, two hours past midnight on a Saturday night; various
        traffic infractions; a strong odor from the vehicle in spite of her denial of drinking
        any alcohol; and the clues exhibited in the field sobriety tests. Based upon these
        circumstances, we conclude, as the trial court did, that [the arresting officer] had
        probable cause to arrest [the motorist] for OVI.

Reese, 8th Dist. Cuyahoga No. 100579, 2014-Ohio-3587, at ¶ 24.

        {¶19} Based on Sergeant Gideon’s testimony, the trial court did not err in denying

appellant’s motion to suppress based on a lack of probable cause for the stop, attempted

administration of field sobriety tests, and subsequent arrest.
                         2. Reports and Observations After the Stop

       {¶20} Appellant also claims in his second and third assignments of error that various

reports generated from appellant’s refusal to take a breath test and observations of the arresting

officer and statements appellant made during his arrest should be suppressed. Specifically,

appellant asserts that the times written or stamped on the “BAC observation report” and “alcohol

influence sheet” were wrong, meaning their accuracy could not be trusted.

       {¶21} This court must first note that the video played for the court and admitted as an

exhibit is not in the record. This video apparently demonstrated the attempted administration of

the breath test and appellant’s refusal. Appellant is charged with ensuring that this court has all

the necessary items before it in the record to properly rule on the errors assigned. State v. Grice,

8th Dist. Cuyahoga No. 97046, 2012-Ohio-1938, ¶ 21. The failure to provide an adequate

record means this court must presume that the lower court’s decision is correct. Id., citing State

v. Smith, 8th Dist. Cuyahoga No. 94063, 2010-Ohio-3512, ¶ 11-12.

       {¶22} Only one of the two forms appellant cites appears in the record — the Bureau of

Motor Vehicles (“BMV”) Form 2255. This form documents Sergeant Gideon’s observations of

appellant that indicated he was intoxicated and appellant’s refusal to submit to tests. From a

discussion of the reports during the suppression hearing, Sergeant Gideon established that the

reports identified by appellant as faulty were generated during the course of appellant’s arrest and

attempts to administer a breath test. First, appellant claims his booking form and BMV Form

2255 should be suppressed because the times on the forms were inaccurate. Likewise, appellant

claims the document created by the breath test machine that evidences appellant’s refusal should

be suppressed because the time stamp was wrong.

       {¶23} Sergeant Gideon testified there was a discrepancy of about an hour between the
time he wrote on the BMV Form 2255 and the times of other reports because the machines had

not been adjusted for daylight savings time. The city laid a proper foundation for the documents

through Sergeant Gideon’s testimony that was apparently corroborate by the videotape played by

appellant at the suppression hearing. Sergeant Gideon also explained the variation in times

found on the various exhibits to the trial court’s satisfaction. There was no argument below or

here that the timing of the refusal was an issue or that the officer did not attempt to administer

the test within the time period set forth in R.C. 4511.192. Sergeant Gideon testified the breath

test was offered to appellant within the time allowed for by R.C. 4511.19 and 4511.192.

        {¶24} Finally, appellant argues that Sergeant Gideon failed to Mirandize him upon his

arrest and therefore everything should be suppressed.

        {¶25} Statements made as a result of custodial interrogation may not be used unless

procedural safeguards are employed to secure the individual’s Fifth Amendment privilege against

self-incrimination. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, at paragraph one of

the syllabus. However,

        [i]n order to merit the protections of the Fifth Amendment privilege against
        self-incrimination, the evidence must be both “compelled” by the state and of a
        “testimonial” or “communicative” nature. Deering v. Brown (C.A., 9), 839 F.2d
        539, citing Schmerber v. California (1966), 384 U.S. 757, 764, 86 S.Ct. 1826, 16
        L.Ed.2d 908. In Deering, the Ninth Circuit concluded that a refusal was not
        testimonial because it “was not used for the testimonial or communicative content
        * * *. Rather, it was used to show that he had not performed the physical act of
        actually taking the test when requested.” Id. at 542.

Middleburg Hts. v. Henniger, 8th Dist. Cuyahoga No. 86882, 2006-Ohio-3715, ¶ 15. The

refusal to take a breath test is not testimonial in nature:

        The United States Supreme Court held that the admission of a defendant’s refusal
        to take a chemical test does not violate a defendant’s Fifth and Fourteenth
        Amendment rights. South Dakota v. Neville, 459 U.S. 553, 564-566, 103 S.Ct.
        916, 74 L.Ed.2d 748 (1983). Similarly, the Ohio Supreme Court held that a
       defendant’s refusal to submit to a chemical test may properly be considered when
       evaluating whether or not a defendant was under the influence of alcohol.
       Maumee v. Anistik, 69 Ohio St.3d 339, 632 N.E.2d 497 (1994), syllabus.

Parma v. Benedict, 8th Dist. Cuyahoga No. 101480, 2015-Ohio-3340, ¶ 28.

       {¶26} Further, the refusal to take a breath test is not compelled speech in the sense that

Fifth Amendment protections arise in states where an implied consent statute is in place.

Henniger at ¶ 18-20. In Ohio, persons using the public roadways in the state consent to the

administration of a test for impaired driving pursuant to R.C. 4511.191 where an officer has

reason to believe the driver is intoxicated. Id. at ¶ 19.

       {¶27} Therefore, the trial court was not required to suppress appellant’s refusal to take a

breath test because that refusal was nontestimonial.

       {¶28} When the suppression motion was argued to the trial court on this issue, the only

statements brought to the court’s attention that should be suppressed because of a lack of

Miranda warning were the statements appellant made to Sergeant Gideon that appellant was

driving the car and that appellant’s uncle had died. These statements were made when the

officer asked appellant why he did not stop when the officer attempted to pull him over. This

was prior to his arrest and occurred on the side of the road. The trial court found no justification

for suppressing those statements, but allowed appellant to file a brief identifying any other

statements that should be suppressed as a result of a failure to Mirandize appellant. No brief

appears in the record.

       {¶29} Roadside questioning following a traffic stop generally does not constitute a

custodial interrogation for purposes of Miranda, but it depends on the surrounding facts and

circumstances. Henniger, 8th Dist. Cuyahoga No. 86882, 2006-Ohio-3715, ¶ 15 (“Questions

normally attendant to arrest and custody do not constitute interrogation for Miranda purposes.”).
Based on the facts and circumstances of this case as adduced at the suppression hearing, the court

did not err in denying appellant’s motion to suppress the two above-mentioned statements argued

by appellant to the trial court. Those statements were volunteered to Sergeant Gideon at the side

of the road after appellant was stopped for speeding and after attempting to elude the police

officer. The officer asked why appellant failed to stop for him, and the statements constituted

appellant’s response to that question.

       {¶30} Appellant has failed to put forth a sufficient basis to reverse the trial court’s

decision denying his suppression motion. Therefore, his first three assignments of error are

overruled.

                                         B. ALS Appeal

       {¶31} In appellant’s fourth assignment of error, he claims the court should have vacated

the ALS that resulted from his refusal to take a breath test. Appellant’s arguments rest on the

error in the time written on the BMV Form 2255 and the fact that the administering officer did

not inform appellant how the Breathalyzer machine functioned.

       {¶32} R.C. 4511.197(A) provides a right to appeal an ALS to the trial court. R.C.

4511.197(C) sets forth the scope of such an appeal:

       If a person appeals a suspension * * * the scope of the appeal is limited to
       determining whether one or more of the following conditions have not been met:

       (1) Whether the arresting law enforcement officer had reasonable ground to
       believe the arrested person was operating a vehicle,* * * and whether the arrested
       person was in fact placed under arrest;

       (2) Whether the law enforcement officer requested the arrested person to submit
       to the chemical test or tests designated pursuant to division (A) of section
       4511.191 of the Revised Code;

       (3) If the person was under arrest as described in division (A)(5) of section
       4511.191 of the Revised Code, whether the arresting officer advised the person at
       the time of the arrest that if the person refused to take a chemical test, the officer
       could employ whatever reasonable means were necessary to ensure that the person
       submitted to a chemical test of the person’s whole blood or blood serum or
       plasma; or if the person was under arrest other than as described in division (A)(5)
       of section 4511.191 of the Revised Code, whether the arresting officer informed
       the arrested person of the consequences of refusing to be tested or of submitting to
       the test or tests;

       (4) Whichever of the following is applicable:

       (a) If the suspension was imposed under division (B) of section 4511.191 and
       section 4511.192 of the Revised Code, whether the arrested person refused to
       submit to the chemical test or tests requested by the officer;

       * * *.

       {¶33} The standard employed by the trial court is “whether the arresting law enforcement

officer had reasonable ground to believe the arrested person was operating a vehicle * * * in

violation of division (A) or (B) of section 4511.19” — i.e. was intoxicated.                    R.C.

4511.197(C)(1). It is the appellant in an ALS appeal that has the burden of proving by a

preponderance of the evidence that the arresting officer failed to give the necessary advisement or

lacked reasonable grounds. R.C. 4511.197(D).          State v. Carnes, 1st Dist. Hamilton No.

C-140188, 2015-Ohio-379, ¶ 8.

       {¶34} R.C. 4511.192(B) provides the advisement that an officer must give. The officer

administering a breath test must orally advise the individual as well as provide a written copy of

the advisement. R.C. 4511.192(A).

       {¶35} During Sergeant Gideon’s testimony, he explained that he read appellant the BMV

Form 2255, which he testified contained the advisement set forth in R.C. 4511.192(B). He

testified that he appropriately advised appellant of the consequences of refusing to submit to a

breath test and provided him with a written copy of the advisement so that appellant could follow

along while Sergeant Gideon read the advisement. Sergeant Gideon testified that appellant
refused the test after the advisement was read and shown to appellant. Further, discussion of the

video played for the trial court appeared to corroborate the officer’s testimony and that it was

witnessed by a second officer as required by R.C. 4511.192(A). 1 Sergeant Gideon was not

required to explain to appellant how the machine operated or the process for administering a

breath test where appellant refused the test. Pursuant to R.C. 4511.192, the officer was required

to advise appellant of the consequences of refusal, which was done in this case.

        {¶36} Appellant also argues the document evidencing his refusal was invalid because it

contained a written time of refusal that was contradicted by Sergeant Gideon’s testimony. The

discrepancy in the time listed on the sheet does not invalidate the ALS as the officer explained

the time discrepancy was due to a clock not being adjusted for daylight savings time. The trial

court relied on the officer’s testimony and, as corroborated by the video, determined that the

refusal and accompanying documentation was not invalid.

                                              C. Speedy Trial

        {¶37} An accused enjoys a state and federal constitutional right to a speedy trial. State v.

O’Brien, 34 Ohio St.3d 7, 516 N.E.2d 218 (1987). However, that right may be waived, provided

the waiver is knowing and intelligent. State v. King, 70 Ohio St.3d 158, 637 N.E.2d 903 (1994),

citing Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Ohio

Supreme Court has held that an express written waiver of one’s statutory rights to a speedy trial,

made knowingly and voluntarily, also constitutes a waiver of his speedy trial rights guaranteed by

the United States and Ohio Constitutions. Id., citing O’Brien at paragraph one of the syllabus.

        {¶38} “[T]o be effective, an accused’s waiver of his or her constitutional and statutory


1
  The video was not contained in the record submitted to this court, but discussion of the video during the hearing
indicated the BMV Form 2255 was read to appellant.
rights to a speedy trial must be expressed in writing or made in open court on the record.” King

at 161.

          {¶39} Here, there is a waiver of speedy trial signed by appellant in the record. The

waiver was signed by appellant on April 28, 2014, and filed with the court the same day. There

is no argument that this waiver was invalid or ineffective. The first instance where it could be

argued that appellant revoked the waiver was when he filed a motion to dismiss based on speedy

trial on July 16, 2015. This was the same day appellant pled no contest to the charges. Based

on this, appellant’s speedy trial rights were not violated. This assigned error is overruled.

                                          D. Plea Hearing

          {¶40} At oral arguments, partially in his statement of the case, and in arguing some of the

other assignments of error, appellant asserted that he was denied his right to a jury trial. This

was not specifically raised as error, so this court asked for additional briefing on this issue to give

the city the ability to address the issue. The city failed to file a brief in response to this court’s

order.    Therefore, we proceed to address this issue after giving the city an opportunity to

respond.

          {¶41} Appellant argued in a portion of his fifth assignment of error, at oral arguments,

and in his supplemental brief that the trial court erred in failing to hold or set a jury trial where he

never waived that right. R.C. 2945.17 provides for the right to a jury trial where a defendant

may be subjected to a prison or jail term for other than a minor misdemeanor. Id. Crim.R. 23

places certain requirements on this right. This rule states,

          In serious offense cases the defendant before commencement of the trial may

          knowingly, intelligently and voluntarily waive in writing his right to trial by jury.

          Such waiver may also be made during trial with the approval of the court and the
        consent of the prosecuting attorney. In petty offense cases, where there is a right

        of jury trial, the defendant shall be tried by the court unless he demands a jury

        trial. Such demand must be in writing and filed with the clerk of court not less

        than ten days prior to the date set for trial, or on or before the third day following

        receipt of notice of the date set for trial, whichever is later. Failure to demand a

        jury trial as provided in this subdivision is a complete waiver of the right thereto.



        {¶42} For petty offenses, a criminal offender must request a jury trial in writing in order

to be entitled to one. In the case of serious offenses, a criminal defendant is entitled to a jury

trial unless that right is waived.

        {¶43} R.C. 4511.19(G)(1)(c) provides that a conviction for OVI with notice of two prior

convictions within six years may result in a jail term of up to one year. Therefore, this is a

serious offense under Traff.R. 2(E) and Crim.R. 2(C).

        {¶44} In response to appellant’s claimed denial of the right to a jury trial at oral

arguments, the city asserted that no written request for a jury trial was ever made by appellant.

The city failed to recognize that this case involved a serious offense.

        {¶45} Here, no signed jury waiver is present in the record, nor did appellant waive his

right to a jury trial in open court as required by R.C. 2945.05. However, the entrance of a guilty

or no-contest plea constitutes a waiver of a right to a jury trial. Martin v. Maxwell, 175 Ohio St.

147, 191 N.E.2d 838 (1963); Frett v. State, 8th Dist. Cuyahoga Nos. 100241 and 100304,

2013-Ohio-5441, ¶ 11; State v. Beckford, 4th Dist. Washington Nos. 95CA5 and 96CA2, 1996

Ohio App. LEXIS 5837, 11 (Dec. 23, 1996) (applying the holding to a no-contest plea in a petty

misdemeanor case). Cases holding that a court, pursuant to R.C. 2945.05, may not proceed with
a bench trial absent a signed written waiver entered into on the record and filed with the clerk are

inapplicable here: “This statutory provision, however, has no application where a criminal

defendant has entered a plea of guilty. This is so because the guilty plea itself waives a trial,

thereby obviating the need for a written waiver as contemplated by R.C. 2945.05.” State v.

Smith, 8th Dist. Cuyahoga No. 79292, 2001 Ohio App. LEXIS 5290, 4-5 (Nov. 29, 2001), citing

Matey v. Sacks, 284 F.2d 335, 338 (6th Cir.1960).

        {¶46} Therefore the trial court did not err in accepting appellant’s plea without a valid

waiver of a trial by jury.

        {¶47} Crim.R. 11(D) and Traf.R. 10(C) both provide similar guidelines for the

acceptance of a no-contest plea in a case involving a serious misdemeanor. A trial court

accepting a plea to a serious misdemeanor is not obligated to set forth the rights being waived by

the entrance of a plea. State v. Dobbins, 2d Dist. Miami No. 2006-CA-18, 2007-Ohio-1665, ¶ 56.

        In State v. Sexton, Greene App. No. 04CA14, 2005-Ohio-449, ¶ 17, we observed
        that “unlike Crim.R. 11(C), which applies to felonies, Crim.R. 11(D), which
        applies to misdemeanor cases involving serious offenses, does not require the
        court to inform the defendant of the rights he or she waives by entering a plea of
        guilty or no contest. While doing so is good practice in accepting pleas to
        misdemeanor offenses, the rule imposes no duty on the court to do that.” Because
        the language of Traf.R. 10(C) and Crim.R. 11(D) is the same, we likewise
        conclude that the trial court was not required to inform [the defendant] of the
        specific rights he was waiving by entering a no-contest plea.

Id. However, a trial court must still personally address a defendant and inform the defendant of

the effects of the plea and ensure that the plea is being entered voluntarily.

        {¶48} This court reviews that colloquy for substantial compliance. State v. Griggs, 103

Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12.             “Under the substantial-compliance

standard, we review the totality of circumstances surrounding [a defendant’s] plea and determine

whether he subjectively understood that a” no-contest plea is not an admission of guilt but an
admission to the facts alleged in the complaint and that the plea is entered voluntarily. Id.;

Crim.R. 11(B) and (D). Appellant must establish prejudice from the failure to properly advise,

and in this context, prejudice exists where the plea would have otherwise not been made.

Griggs at ¶ 12, citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

        {¶49} Here, the trial court did personally address the defendant, but did not inform him of

the effects of a no-contest plea. Further, the court did not seek to ensure that appellant’s plea

was being entered voluntarily. In fact, the record indicates a strong likelihood that was not the

case.

        {¶50} When the case was called for trial, the court asked appellant’s attorney if he was

prepared to go forward. The attorney indicated he was not because he had filed a motion to

withdraw from the case. The attorney indicated he was not prepared for trial as a result. The

court instructed the parties that the case was set for trial today and would be moving forward

unless the matter was resolved by plea. Then, the court ordered a brief recess so that a plea

agreement could be discussed between the parties. Following that recess, appellant entered a

no-contest plea to the OVI offense with notice of two prior convictions within six years.

        {¶51} The court did not ask any questions about whether appellant was voluntarily

entering his plea, and the record reflects a definite probability that the plea was not entered

voluntarily. The Supreme Court of Ohio has held that a failure to address completely a required

portion of the Crim.R. 11 plea colloquy does not “implicate an analysis of prejudice.” State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32. This is true whether the

required element is constitutional or nonconstitutional. Id. Here, the court said nothing about

the effects of the plea or inquired about the voluntary nature of the plea. Therefore, the court did

not substantially comply with the requirements of Crim.R. 11(D).
         {¶52} Further, the court informed appellant that the maximum penalty he faced was 30

days in jail even though appellant was subject to up to one year in jail at the discretion of the trial

court.

         {¶53} A similar situation occurred in State v. Morgan, 7th Dist. Mahoning No. 13 MA

80, 2014-Ohio-654, ¶ 21. There, Morgan was informed that he faced a maximum penalty of up

to 500 hours of community service and a fine. However, he could have been subjected to up to

one year in jail, and was actually sentenced to 150 days in jail. Id. at ¶ 22. In the present case,

appellant did receive more time than the trial court initially informed him he faced during the

plea colloquy. He received a six-month jail sentence, but the court suspended all but 30 days.

The cases are also similar in that the trial courts did not inform the defendants of the effects of

the plea or inquire to ensure that a plea was being entered voluntarily. Id. at ¶ 16. The Morgan

court vacated the plea and conviction. Id. at ¶ 24. This court does the same.

         {¶54} The resolution of this assigned error renders appellant’s remaining assignments of

error regarding ineffective assistance of counsel and license suspension credit moot.

                                          III. Conclusion

         {¶55} The trial court did not err in denying appellant’s motion to suppress the evidence

against him as the officer had probable cause to administer field sobriety tests and for the

attempted administration of a breath test. The trial court also did not err in denying appellant’s

ALS appeal as the arresting officer properly explained the consequences of refusal and

documented that refusal with the appropriately witnessed form and the video of the refusal.

Appellant’s speedy trial rights were not violated where he voluntarily waived them. Finally, the

court erred in accepting appellant’s plea without properly advising appellant according to

Crim.R. 11.
       {¶56} This cause is reversed and remanded to the municipal court for further proceedings

consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


_______________________________________
FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
