[Cite as State v. Travis, 2012-Ohio-1466.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 14-11-19

        v.

MISTY D. TRAVIS,                                           OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Marysville Municipal Court
                           Trial Court No. TRD 1103297 B

                                       Judgment Affirmed

                               Date of Decision: April 2, 2012




APPEARANCES:

        Alison Boggs for Appellant

        Tim Aslaner for Appellee
Case No. 14-11-19


SHAW, P.J.

       {¶1} Defendant-Appellant, Misty D. Travis (“Travis”), appeals the August

31, 2011 judgment of the Marysville Municipal Court of Union County, Ohio,

sentencing Travis upon her plea of guilty.

       {¶2} On August 9, 2011, Travis was pulled over for a speeding violation.

After her license was checked through LEADS, Travis was found to be under

three open suspensions: a failure to report an accident suspension, a security

suspension and a non-compliance suspension. Travis was subsequently charged

with Driving Under Suspension for Failure to File an Accident Report in violation

of R.C. 4510.11(A) and Driving Under an FRA Suspension in violation of R.C.

4510.16(A), both unclassified misdemeanors.

       {¶3} At arraignment on August 16, 2011 Travis pled no contest to the

charges. After the facts were read into the record by the prosecution, the court

asked Travis if there was anything she wanted the court to consider in passing

judgment or sentence. Travis said that the Bureau of Motor Vehicles (“BMV”)

was sending her a document showing that notice of her suspension had been sent

to the wrong address and because of this, she was not notified of her license

suspension. Upon hearing this statement, the court asked if Travis still wished to

plead no contest. Travis decided that she did not, and changed her plea to not

guilty. Accordingly, the court set the matter for a bench trial on August 31, 2011.


                                        -2-
Case No. 14-11-19


      {¶4} On August 25, 2011, Travis applied for a public defender.          Her

application was granted and Lisa Music entered an appearance as counsel on

August 30, 2011. On August 31, 2011, the day of the scheduled bench trial,

Travis entered a negotiated plea of guilty to Driving Under an FRA suspension in

violation of R.C. 4510.16(A) with the remaining charge to be dismissed.

      {¶5} The court advised Travis of the rights she was waiving in tendering

her guilty plea, accepted the plea and then proceeded to sentencing. The court

followed the recommended sentence the parties had prepared in the pre-trial

report, sentencing Travis to 500 hours of community service, a $600 fine and court

costs, and a 30 day license suspension. The community service and $300 of the

fine were suspended on the condition that Travis enroll in the home monitoring

program for ten days.

      {¶6} This appeal followed and Travis asserts two assignments of error for

our review.

                         ASSIGNMENT OF ERROR I

      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      WHEN IT FAILED TO COMPLY WITH CRIMINAL RULE
      11 WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA.

                        ASSIGNMENT OF ERROR II

      DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY
      INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION
      OF HIS [sic] SIXTH AND FOURTEENTH AMENDMENT


                                       -3-
Case No. 14-11-19


        RIGHTS, AS WELL AS HIS [sic] RIGHTS UNDER SECTION
        10, ARTICLE I, OF THE OHIO CONSTITUTION.

                                    First Assignment of Error

        {¶7} In her first assignment of error, Travis contends that the court failed to

comply with Ohio Criminal Rule 11(E) when the court accepted her guilty plea.

We note at the outset that the Ohio Supreme Court has held that a trial court’s

acceptance of a defendant’s guilty plea to a petty misdemeanor traffic offense is

governed by Traffic Rule 10(D) rather than Criminal Rule 11(E). State v. Watkins,

99 Ohio St.3d 12, 788 N.E.2d 635, 2003-Ohio-2419, syllabus. Functionally it

makes little difference to our analysis, as Crim.R. 11(E) and Traf.R. 10(D) are

largely analogous.           “In fact, Crim.R. 11(E), which applies to nontraffic

misdemeanor cases involving petty offenses, is identical in all relevant aspects to

Traf.R. 10(D).” Watkins at ¶ 15. Nevertheless, Travis’s crimes do fall under the

Traffic Rule’s classification as petty offenses and would therefore be governed by

Traf.R. 10(D).1

        {¶8} Traffic Rule 10(D) reads,

        [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


1
  Traffic Rule 2(D) defines “petty offense” as one “for which the penalty prescribed by law includes
confinement for six months or less.” In this case, Travis was charged with two unclassified misdemeanors,
the maximum penalties being 500 hours of community service and up to a $1000 fine, making them
governed by Traf.R. 10(D).

                                                  -4-
Case No. 14-11-19


      plea of guilty, no contest, and not guilty. This information may
      be presented by general orientation or pronouncement.

      {¶9} The Ohio Supreme Court has held that a trial court is in compliance

with Traf.R. 10(D) “by informing the defendant of the information contained in

Traf.R. 10(B).” Watkins at syllabus. Traffic Rule 10(B) reads,

      (B) Effect of guilty or no contest pleas

      With reference to the offense or offenses to which the plea is
      entered:

      (1) The plea of guilty is a complete admission of the
      defendant’s guilt.

      (2) 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 such plea or admission shall not be used against
      the defendant in any subsequent civil or criminal proceeding.

      (3) When a plea of guilty or no contest is accepted pursuant to
      this rule, the court shall proceed with sentencing under Criminal
      Rule 32.

      {¶10} Based on the requirements of Traf.R. 10(B), in a traffic case

involving a petty offense the court would simply need to inform Travis of the

effect of her plea.    The right to be informed of the effect of a plea is a

nonconstitutional requirement subject to review under a standard of substantial

compliance. State v. Griggs, 103 Ohio St.3d 85, 814 N.E.2d 51, 2004-Ohio-4415,

¶ 12 citing State v. Nero, 56 Ohio St.3d 106, 107. “Substantial compliance means

that under the totality of the circumstances, the defendant subjectively understands


                                        -5-
Case No. 14-11-19


the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio

St.3d 106, 108 (1990). “Furthermore, ‘a defendant must show prejudice before a

plea will be vacated for a trial court’s error * * * when nonconstitutional aspects

of the colloquy are at issue.’” State v. Thomas, 3d. Dist. No. 10-10-17, 2011-

Ohio-4337, ¶ 21, quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at

¶ 17.

        {¶11} For Travis to establish prejudice, she would have to demonstrate that

her plea would not have been made otherwise. Id. Moreover, the Supreme Court

of Ohio has held “that a defendant who has entered a guilty plea without asserting

actual innocence is presumed to understand that he has completely admitted his

guilt. In such circumstances, a court’s failure to inform the defendant of the effect

of his plea * * * is presumed not to be prejudicial.” Griggs at ¶ 12.

        {¶12} In the case sub judice, Travis claims that the plea dialogue at her

hearing was deficient in two ways. First, she argues that the court did not inform

her of the effect of her plea; specifically that her plea of guilty constituted a

complete admission of guilt. Second, she argues that the court did not specifically

address her during the plea.

        {¶13} What follows is the relevant excerpt of the dialogue from the plea

hearing.

        MS. MUSIC: (INAUDIBLE), pretrial report in the file, your
        honor.

                                         -6-
Case No. 14-11-19



      THE COURT: The pretrial report says on the F R A suspension
      case that the defendant should – is to be sentenced – or the
      recommendation is the defendant be sentenced to pay a $600
      fine, $300 suspended and the court costs, 10 days house arrest in
      lieu of community service of 500 hours, and a 30 day license
      suspension. The remaining charges are to be dismissed at cost.
      That’s the failure to report – or failure to file an accident report.
      Miss Music, to the charge of driving under F R A suspension,
      what plea does your client wish to enter?

      MS. MUSIC: Guilty.

      THE COURT: Miss Travis, do you understand that by entering
      this guilty plea you are giving up certain rights. You’re giving
      up your right to a trial, either to a jury or to the court. And at
      that trial the burden would be on the Prosecutor to prove your
      guilt beyond a reasonable doubt. Do you understand you’re
      giving up your right to make them do that?

      DEFENDANT: Yes, your Honor.

      THE COURT: You’re giving up your right not to testify against
      yourself. You’re giving up your right to confront and cross
      examine your accusers and any witnesses in open court. And
      you’re giving up your right to subpoena any witnesses you may
      have in your own defense. Do you understand that you are
      giving up all those rights?

      DEFENDANT: Yes.

      THE COURT: Did anyone make any promises or threats or in
      any [sic] try to either talk you into entering this plea or talk you
      out of having a trial?

      DEFENDANT: No, your Honor.

      THE COURT: So you’re doing this of your own free will. Is
      that correct, Miss Travis?


                                       -7-
Case No. 14-11-19


       DEFENDANT: (NO AUDIBLE RESPONSE GIVEN.)
       THE COURT: Miss Music, is there anything you want me to
       consider in passing judgment and sentence?

       MS. MUSIC: We would just ask for a payment plan for fines
       and court costs.

       THE COURT: Miss Travis, is there anything that you want me
       to know that Miss Music may not have told me?

       DEFENDANT: No, your Honor.

(Aug. 31, Tr. at 3-5).

       {¶14} Travis claims that the above dialogue was deficient because the court

failed to inform her that her plea was an admission of guilt. While it is true that

the court did not specifically inform Travis that her guilty plea was a complete

admission of guilt as is required under Traf.R. 10(D), the record of the foregoing

dialogue is enough to suggest that Travis subjectively understood that she was

making a complete admission of guilt and that she also understood the rights she

was waiving in tendering her plea of guilty.      Travis pled guilty through her

counsel, was informed of her constitutional rights and gave no indication that she

did not understand her plea or the proceedings.         In addition, pursuant to

negotiations for the guilty plea, a pretrial report was produced containing a

recommended sentence agreed to by the parties. (Doc. No. 3). This agreement

was referred to in the dialogue.




                                        -8-
Case No. 14-11-19


      {¶15} A subjective understanding is all that is required to meet ‘substantial

compliance’ of the nonconstitutional right to be informed of the effect of a plea.

State v. Nero, supra.     We find that the foregoing dialogue is enough to

demonstrate that Travis subjectively understood the nature of her plea and that,

therefore, the court was in substantial compliance with Traf.R. 10(D) despite not

specifically informing Travis that her plea was a complete admission of guilt.

      {¶16} Furthermore, even if the court was not in substantial compliance with

the above dialogue, we find nothing in the record showing that there was any

prejudice to Travis meriting reversal.      The fact that she pled guilty without

asserting her innocence at the plea hearing raises the presumption that the

omission was not prejudicial. Griggs, supra, at ¶ 12. On the contrary, while

Travis raised an issue at her arraignment that one of her suspension letters may

have been sent to the wrong address and therefore that she may not have received

proper notice, she made no similar claim or other claim of innocence at her plea

hearing. The record is thus devoid of any information that would suggest Travis

would have made a different decision had the court informed her that pleading

guilty was a complete admission of guilt.

      {¶17} Turning to Travis’s second argument regarding the plea dialogue,

Travis claims that the court did not specifically address her.      She bases her

arguments upon the holdings in City of Hamilton v. Johnson, 12th App. No.


                                         -9-
Case No. 14-11-19


CA2008-03-094, 2009-Ohio-432 and State v. Smith, 3d App. No. 16-03-17, 2004-

Ohio-1953, where reversible error was found when the court essentially did not

address the defendant at all. However, unlike the cases cited by Travis, in this

case, Travis was specifically addressed by the court for all but two questions.

Accordingly, we find this argument to be without merit.

       {¶18} For the foregoing reasons, Travis’s first assignment of error is

overruled.

                            Second Assignment of Error

       {¶19} Travis next contends that she received ineffective assistance of

counsel in violation of her Sixth and Fourteenth Amendment rights, as well as her

rights under Section 10, Article I of the Ohio Constitution.

       {¶20} In order to prevail on a claim of ineffective assistance of counsel,

Travis must meet both prongs of the two-part test established in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), as applied to the plea process in

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985). See State v. Xie, 62 Ohio

St.3d 521, 584 N.E.2d 715. The first prong of the test requires Travis to show that

her counsel’s performance was deficient. Strickland, 466 U.S. at 687; Xie, 62

Ohio St.3d at 524. The second prong of the test requires Travis to show that there

is a reasonable probability that, but for counsel’s errors, she would not have

entered her plea and instead would have insisted on going to trial. Hill supra at


                                        -10-
Case No. 14-11-19


57-59; Xie supra at 524.      Finally, when considering a claim of ineffective

assistance of counsel, the court “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689

      {¶21} In support of her second assignment of error, Travis makes two

arguments to show that her counsel was ineffective. First, Travis argues that her

counsel could not have had enough time to adequately review the case and provide

competent representation as her counsel first entered an appearance only the day

before the scheduled bench trial. Second, Travis claims that her counsel was

deficient for failing to obtain documents which, according to Travis, would

establish that the BMV sent required notifications to the wrong address and would

establish that Travis had insurance both at the time of the accident she apparently

failed to report and on a subsequent date when she was pulled over for speeding

on August 9, 2011.

      {¶22} At the outset, there is nothing in the record to indicate that any of

these documents existed or that they had any bearing on the Driving Under FRA

Suspension charge she pled guilty to in this case. Moreover, there is no evidence

in the record that Travis’s counsel did not have enough time to prepare for this

case or that Travis had a meritorious defense to the charge supported by

documentation. Finally, there is nothing in the record to indicate that anything


                                       -11-
Case No. 14-11-19


Travis’s attorney did or did not do, would have changed Travis’s decision to plead

guilty to one charge in exchange for the dismissal of a second charge in this case.

In sum, there is nothing in the record to establish that Travis’s plea was anything

less than voluntary, knowing, or intelligent. For the foregoing reasons, Travis’s

second assignment of error is hereby overruled.

       {¶23} For the foregoing reasons, Travis’s assignments of error are hereby

overruled and the judgment is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




                                       -12-
