[Cite as State v. Jones, 2016-Ohio-6987.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                  :          OPINION

                 Plaintiff-Appellee,            :
                                                           CASE NO. 2015-A-0068
        - vs -                                  :

GLORIA A. JONES,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Ashtabula Municipal Court, Case No. 07 CRB 00630.

Judgment: Affirmed.


Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, OH 44004 (For
Plaintiff-Appellee).

Gloria A. Jones, pro se, 5520 Nathan Avenue, Ashtabula, OH 44004 (Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Gloria A. Jones, appeals from the judgment of the Ashtabula

Municipal Court’s denial of her Motion to Vacate Void Conviction for Lack of Subject-

Matter Jurisdiction. We affirm the trial court’s denial.

        {¶2}     On April 23, 2007, appellant returned home at approximately 8:00 a.m.

from working an extended shift as an STNA at a nursing facility. After her husband left

to take their sons to school, appellant locked the front door, and took her four year old
daughter to her bedroom. Appellant set up a baby guard across the door, and went to

sleep. Evidently, at some point, appellant’s brother stopped by, and failed to properly

secure the door to the house. The child managed to get outside, where she was seen

wandering near the street by a neighbor. Appellant awoke and frantically called the

police when she could not find her child. Sgt. Dibble of the Ashtabula Police responded,

and the child was rescued. Sgt. Dibble issued appellant a summons in lieu of arrest.

      {¶3}   On April 26, 2007, appellant pleaded guilty in the trial court to one count of

endangering children. The trial court sentenced her to three days in jail, and a $250

fine, both suspended if she was not charged in the coming year with a similar offense.

No appeal was taken.

      {¶4}   In August 2015, appellant filed her motion to vacate her conviction with the

trial court, alleging the trial court lacked jurisdiction over the 2007 misdemeanor. The

state opposed, and the trial court denied her motion in a judgment entry filed August 31,

2015. This appeal timely ensued. Appellant assigns three errors for this court’s review.

Her first assignment of error provides:

      {¶5}   “Where the issuing officer failed to file a sworn original summons in lieu of

arrest * * * as required by Crim.R. 4.1, the trial court erred in denying defendant-

appellant’s motion to vacate void conviction, as subject-matter jurisdiction was never

invoked.”

      {¶6}   Crim.R. 4(A)(3) governs circumstances in which a law enforcement officer

issues a summons in lieu of arrest. It provides:

      {¶7}   In misdemeanor cases where a law enforcement officer is
             empowered to arrest without a warrant, the officer may issue a
             summons in lieu of making an arrest, when issuance of a summons
             appears reasonably calculated to assure the defendant’s



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              appearance. The officer issuing the summons shall file, or cause to
              be filed, a complaint describing the offense. No warrant shall be
              issued unless the defendant fails to appear in response to the
              summons, or unless subsequent to the issuance of summons it
              appears improbable that the defendant will appear in response to
              the summons.

       {¶8}   Moreover, Crim.R. 4(C)(2) sets forth the requirements for a valid

summons. It provides:

       {¶9}   The summons shall be in the same form as the warrant, except that
              it shall not command that the defendant be arrested, but shall order
              the defendant to appear at a stated time and place and inform the
              defendant that he or she may be arrested if he or she fails to
              appear at the time and place stated in the summons. A copy of the
              complaint shall be attached to the summons, except where an
              officer issues summons in lieu of making an arrest without a
              warrant, or where an officer issues summons after arrest without a
              warrant.

       {¶10} Crim.R. 3 sets forth the requirements of a complaint. It provides: “The

complaint is a written statement of the essential facts constituting the offense charged. It

shall also state the numerical designation of the applicable statute or ordinance. It shall

be made upon oath before any person authorized by law to administer oaths.”

       {¶11} On April 25, 2007, the citing officer filed a document entitled “Complaint –

Affidavit-Summons” in the Ashtabula Municipal Court. It alleged on Monday, April 23,

2007, at 1318 P.M., at 5520 Nathan Avenue, Ashtabula, Ohio appellant “did then and

there commit the following offense: ORC 2919.22A, Defendant did create a risk of

physical harm to a child under 18 years of age.”          The document was signed by

appellant. It was also sworn to and acknowledged by the citing officer before a deputy

clerk on April 23, 2007. The instrument also provided “You are summoned to appear in

the Ashtabula Municipal Court Ashtabula, Ohio 44004” on April 26, 2007, at 1:30 P.M.




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         {¶12} The document in question, from its face, functioned as a “summons in lieu

of arrest” as well as a complaint. It ordered appellant to appear in court at a specified

time. Moreover, it provided a written statement of the essential facts constituting the

charge as well as the numerical designation of the statute appellant allegedly violated.

It was also made upon oath before an individual authorized by law to administer oaths;

namely, a deputy clerk. R.C. 1901.31(E) (“the clerk of a municipal court may do all of

the following: administer oaths * * *.”); R.C. 1901.31(H) (“each deputy clerk * * *, when

so qualified, may perform the duties appertaining to the office of the clerk.”) Finally, the

officer’s signature in the “complaint – affidavit – summons” was “sworn to and

acknowledged before” the deputy clerk.

         {¶13} The charging officer signed the “complaint – affidavit – summons”

indicating the instrument was “sworn to and acknowledged before” the deputy clerk.

The charging instrument in this matter was therefore sufficient.

         {¶14} Appellant’s first assignment of error is without merit.

         {¶15} Appellant’s second assignment of error provides:

         {¶16} “If this court finds that the summons in lieu of arrest constitutes the

criminal complaint, then in this case, it failed to charge each essential element of [R.C.]

2919.22(A), and wasn’t properly sworn before the deputy clerk. The trial court erred in

denying defendant’s motion to vacate void conviction.”

         {¶17} Appellant maintains the complaint was deficient because it failed to allege

she was reckless, an essential element of the crime of endangering children. We do not

agree.




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       {¶18} The purpose of a charging instrument, such as a criminal complaint, is to

give the defendant adequate notice of the charge. See State v. Buehner, 110 Ohio

St.3d 403, 2006-Ohio-4707, ¶7. As discussed above, a criminal complaint must contain,

in relevant part, “a written statement of the essential facts constituting the offense

charged[.]” Crim.R. 3. The written statement “may be in the words of the applicable

section of the statute, * * * or in words sufficient to give the defendant notice of all the

elements of the offense with which the defendant is charged.” Crim.R. 7(B). While

recklessness is an essential element of the crime of endangering children, State v.

McGee, 79 Ohio St.3d 193, 195 (1997), Crim.R. 3 does not require the complaint to

track the language of the statute. See e.g. State v. Sims, 1st Dist. Hamilton Nos. C-

150252, C-150253, 2015-Ohio-4996, ¶15.

       {¶19} In this case, the complaint gave a brief description of the essential facts

upon which the charge was premised.              It also set forth the numerical statutory

designation of the offense with which appellant was charged. Under the circumstances,

we conclude details were sufficient to put appellant on notice of the charge.

       {¶20} Appellant next asserts that because the “complaint – affidavit – summons”

was filed on April 25, 2007, rather than April 23, 2007, the date the deputy clerk

acknowledged the instrument, it was not properly sworn. Appellant cites no authority for

this strange proposition. And we discern no legally compelling basis for holding the two-

day lag between the acknowledgement date and the filing date should operate to nullify

an otherwise valid acknowledgement.

       {¶21} Appellant’s second assignment of error lacks merit.

       {¶22} Appellant’s third assignment of error provides:




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       {¶23} “Where the trial court failed to inform defendant-appellant of the nature of

the charge, found defendant-appellant guilty, and requested defendant appellant to

explain the circumstances, the guilty plea is void.”

       {¶24} Where a defendant’s plea of guilty is not voluntary and knowing, her right

to due process has been violated and the plea is void. McCarthy v. United States, 394

U.S. 459, 466 (1969). “Moreover, because a guilty plea is an admission of all the

elements of a formal criminal charge, it cannot be truly voluntary unless the defendant

possesses an understanding of the law in relation to the facts.” Id.

       {¶25} Appellant first contends she was neither informed of the nature of the

charge nor permitted to read the charging instrument, in violation of R.C. 2937.02(A)(1).

That subsection provides:

       {¶26} “When, after arrest, the accused is taken before a court or
             magistrate, or when the accused appears pursuant to terms of
             summons or notice, the affidavit or complaint being first filed, the
             court or magistrate shall, before proceeding further:

       {¶27} “(1) Inform the accused of the nature of the charge and the identity
             of the complainant and permit the accused or counsel for the
             accused to see and read the affidavit or complaint or a copy of the
             affidavit or complaint;”

       {¶28} The transcript of the arraignment, at which appellant appeared due to the

“complaint – affidavit – summons,” demonstrates the trial court advised appellant she

was charged with child endangering. The trial court did not, however, offer or permit

appellant the opportunity to read the instrument. Because the statute mandates that the

court allow an accused to read the complaint, the trial court’s failure to offer appellant

the opportunity to do so was error. This error, however, does not suggest appellant’s

plea was not entered knowingly and voluntarily.             To the contrary, appellant




                                             6
acknowledged the charge and stated she understood the maximum penalty associated

with the charge. She also stated she understood each of the rights she was waiving by

pleading guilty.   The trial court subsequently accepted her guilty plea after a full

colloquy. The record demonstrates appellant’s plea of guilty was entered knowingly and

voluntarily. Accordingly, any error in failing to grant appellant the opportunity to read the

charging instrument is harmless as a matter of law.

       {¶29} Appellant next asserts the trial court failed to require the state to provide

an “explanation of circumstances,” as required by R.C. 2937.07. R.C. 2937.07 governs

a court’s action on guilty pleas and pleas of no contest for misdemeanor offenses. It

provides, in relevant part:

       {¶30} “Upon receiving a plea of guilty, the court or magistrate shall call for
             an explanation of the circumstances of the offense from the affiant
             or complainant or the affiant’s or complainant’s representatives
             unless the offense to which the accused is pleading is a minor
             misdemeanor in which case the court or magistrate is not required
             to call for an explanation of the circumstances of the offense. After
             hearing the explanation of circumstances, together with any
             statement of the accused or after receiving the plea of guilty if an
             explanation of the circumstances of the offense is not required, the
             court or magistrate shall proceed to pronounce the sentence or
             shall continue the matter for the purpose of imposing the sentence.”
             (Emphasis added).

       {¶31} The record demonstrates that the trial court did not ask the state for an

“explanation of circumstances.” Instead, the court asked appellant to explain how the

charges arose. After she did so, the trial court momentarily recessed to obtain a copy of

the police report. After doing so, the court noted appellant’s version of events was

essentially consistent with the police report.

       {¶32} The Supreme Court of Ohio has observed that an “explanation of

circumstances” is important in the context of a “no contest” plea because it ensures the



                                             7
trial court does not enter a finding of guilty in a perfunctory fashion. Cuyahoga Falls v.

Bowers, 9 Ohio St.3d 148, 151 (1984). As such, an “explanation of circumstances” has

been deemed a substantive right only in situations where a defendant pleads “no

contest.” Id. Where, as in this case, a defendant pleads guilty, such an explanation

does not carry the same substantive import. “There is a fundamental difference between

pleading guilty and pleading no contest, because a guilty plea constitutes an actual

admission of guilt, whereas a plea of no contest requires some type of evidence, at

least in misdemeanor cases.” State v. Russell, 7th Dist. Mahoning No 09 MA 156,

2011-Ohio-1181, ¶22.        Even though the court did not require the state to give an

explanation, appellant’s plea of guilty renders any error harmless as a matter of law.

       {¶33} Furthermore, in light of Bowers, the “explanation of circumstances”

appears to be akin to a sufficiency-of-the-evidence analysis. To wit, the explanation

allows a trial court to determine whether the state could produce adequate evidence to

support a finding of guilty upon entry of a “no contest” plea.         In this respect, it is

reasonable to conclude that any argument relating to the court’s failure to strictly adhere

to the requirements of R.C. 2937.07 must be raised on direct appeal. Where, as here,

an appellant has failed to file a direct appeal, the argument should be barred by the

doctrine of res judicata.

       {¶34} Finally, it is unclear, at least in the instant matter, how the failure to obtain

an “explanation of circumstances” from the complainant affected the voluntary character

of appellant’s decision to enter a plea of guilty.        As indicated above, the record

demonstrates appellant knowingly and voluntarily waived her constitutional rights and

entered the plea of her own free volition. In short, the premise of appellant’s argument




                                              8
(i.e., the error in failing to require an explanation) simply fails to support her conclusion

(i.e., her plea was not knowing and voluntary).

       {¶35} Appellant’s third assignment of error is therefore without merit.

       {¶36} For the foregoing reasons, the judgment of the Ashtabula Municipal Court

is affirmed.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
                         ___________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


       {¶37} Finding that appellant’s first assignment of error has merit, I respectfully

dissent.

       {¶38} “The filing of a complaint invokes the jurisdiction of the municipal court.”

State v. Mbodji, 129 Ohio St.3d 325, 2011-Ohio-2880, ¶12. “[I]n order to constitute a

valid complaint, Crim. R. 3 contains the following requirements, to wit: 1) a written

statement of the essential facts constituting the offense charged; 2) the numerical

designation of the applicable statute or ordinance; and 3) it must be made upon oath

before any person authorized by law to administer oaths.” State v. Shutway, 2d Dist.

Champaign No. 2014-CA-10, 2015-Ohio-2433, ¶15.

       {¶39} “‘In the absence of a sufficient formal accusation, a court acquires no

jurisdiction whatever, and if it assumes jurisdiction, a trial and conviction are a nullity.’

State v. Miller (1988), 47 Ohio App.3d 113, 114, * * *. See, also, Stewart v. State

(1932), 41 Ohio App. 351, 353-354, * * *. In State v. Green (1988), 48 Ohio App.3d




                                             9
121, * * * the charging officer signed the complaint, but did not sign the jurat. The court

held that an unsworn complaint ‘is void and any conviction resulting therefrom would be

void also.’ Id. at 122, * * *.” (Parallel citations omitted.) Akron v. Meissner, 92 Ohio

App.3d 1, 3 (9th Dist.1993).

        {¶40} The summons in lieu of arrest in this case was signed by both Ms. Jones

and Sgt. Dibble at the time he issued it. Thereafter, it was signed by a deputy clerk of

the court. However, the form does not contain any line where Sgt. Dibble could have

signed it ahead of the jurat. It is not properly sworn, is not a criminal complaint, and did

not invoke the jurisdiction of the trial court.1

        {¶41} Normally, when a sentence has been served in a criminal case, any attack

on the conviction or sentence is moot. State v. Wilson, 41 Ohio St.2d 236, 237 (1975).

However, this rule does not apply when there is a possibility that the challenged

conviction may result in collateral legal consequences. Id. Ms. Jones completed her

sentence in this case some eight years ago. However, she wishes to apply for a limited

guardianship of one of her adult sons, who is autistic. As she points out, R.C. 2111.03,

governing applications for guardianships, requires the applicant to file a statement with

the court regarding any charge or conviction for a crime involving physical violence.

R.C. 2111.03(A). While her own conviction for child endangering did not factually arise

from physical violence against her daughter, the crime necessarily encompasses such

situations.    Thus, she might suffer a collateral legal consequence if the conviction

stands.


1. The state argues that Crim.R. 58 provides that any form used by a local court that is substantially
similar to those contained in the Appendix of Forms is legally sufficient, and that the form used in this
case is substantially similar to Form XII. As Ms. Jones points out, the forms are not substantially similar:
Form XII contains both a signature line for when the officer issues the summons in lieu of arrest, and
another, above the jurat, for when the officer files the summons as a criminal complaint.


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      {¶42} The trial court should have granted Ms. Jones’ motion to vacate void

conviction, as it never had jurisdiction of the misdemeanor alleged.

      {¶43} I respectfully dissent.




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