[Cite as State v. Higby, 2011-Ohio-4996.]


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

STATE OF OHIO                                       C.A. No.       10CA0054

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DOUGLAS HIGBY, JR.                                  WAYNE COUNTY MUNICIPAL COURT
                                                    COUNTY OF WAYNE, OHIO
        Appellant                                   CASE No.   CRB-10-04-00425

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2011



        DICKINSON, Judge.

                                            INTRODUCTION

        {¶1}     Douglas Higby pleaded no contest to domestic violence and criminal damaging.

The municipal court accepted his plea, found him guilty of the offenses, and sentenced him to

nine months in jail. Mr. Higby has appealed, arguing that the court failed, in violation of Rule

11(E) of the Ohio Rules of Criminal Procedure, to advise him of the possible penalties associated

with his offenses before accepting his plea. We affirm because the municipal court complied

with Criminal Rule 11(E).

                                             MOOTNESS

        {¶2}     The State has argued that Mr. Higby’s appeal is moot because he already

completed his jail term. In State v. Pedraza, 9th Dist. No. 09CA009706, 2010-Ohio-4284, we

concluded that an appeal from a fully served sentence on a misdemeanor charge is moot if the

defendant did not request a stay of the sentence pending appeal and failed to allege that he would
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suffer some collateral disability or loss of civil rights if the appeal was not considered. Id. at

¶25. Mr. Higby, however, did request that the municipal court stay his sentence. We have also

recognized that, because a domestic violence offender can not own or possess a firearm, an

appeal from a misdemeanor domestic violence conviction is not moot, even if the offender has

already completed his sentence. State v. Fletcher, 9th Dist. No. 23838, 2008-Ohio-3105, at ¶11;

see 18 U.S.C. § 922(g)(9) (prohibiting domestic violence offenders from possessing firearms).

                                     EFFECT OF THE PLEA

       {¶3}    Mr. Higby’s assignment of error is that his no-contest plea was invalid because

the municipal court failed, in violation of Rule 11 of the Ohio Rules of Criminal Procedure and

the United States and Ohio Constitutions to advise him of the possible penalties associated with

his offenses. According to Mr. Higby, because the crimes he was accused of are petty offenses,

the court had to comply with Criminal Rule 11(E). Under that rule, “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 . . . .” Mr. Higby has argued that, in order to comply with that

rule, the court had to inform him of “the potential penalties” associated with the charges and

“that the sentences could be run consecutively . . . to increase the total time of incarceration.”

       {¶4}    The plain language of Criminal Rule 11(E) requires a trial court to do one thing

before accepting a plea of guilty or no contest in a petty offense case, “inform[ ] the defendant of

the effect of the plea[.]” State v. Jones, 116 Ohio St. 3d 211, 2007-Ohio-6093, at paragraph one

of the syllabus (“In accepting a plea to a misdemeanor involving a petty offense, a trial court is

required to inform the defendant only of the effect of the specific plea being entered.”). In Jones,

the Ohio Supreme Court held that Criminal Rule 11(E)’s “effect of the plea” language refers to

Criminal Rule 11(B), which is titled “[e]ffect of guilty or no contest pleas[.]” Id. at paragraph
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two of the syllabus (“To satisfy the requirement of informing a defendant of the effect of a plea,

the trial court must inform the defendant of the appropriate language under Crim.R. 11(B).”). It

specifically rejected Mr. Jones’s argument that the term “effect of the plea” had a more

expansive meaning, concluding that “a statement about the effect of a plea is separate from

statements relating to a maximum penalty and the right to a jury trial[.]”                Id. at ¶22

(distinguishing Criminal Rule 11(C) requirements in felony cases).

       {¶5}    To comply with Criminal Rule 11(B)(2), a court must tell the defendant that

“[t]he plea . . . is not an admission of defendant’s guilt, but is an admission of the truth of the

facts alleged in the indictment, information, or complaint, and the plea or admission shall not be

used against the defendant in any subsequent civil or criminal proceeding.” The municipal court

told Mr. Higby that “a plea of no contest . . . , while not an admission of guilt does admit the

facts . . . contained in the complaint . . . . Even though the plea itself can not be used against you

in any later civil or criminal action, that plea, along with a reading of the facts, will allow me to

find you guilty here today[.]” We conclude that the court properly informed Mr. Higby about the

effect of his no contest plea under Criminal Rule 11(B)(2) and (E).

       {¶6}    Under Criminal Rule 11(E), the municipal court was not required to tell Mr.

Higby about the potential penalties he faced or that his sentences could run consecutively before

accepting his no-contest plea. Mr. Higby has also failed to cite any authority suggesting that he

had the right to be told those things under the United States or Ohio constitutions.              His

assignment of error is overruled.

                                          CONCLUSION

       {¶7}    Before accepting a no contest plea to a petty offense under Rule 11(E) of the Ohio

Rules of Criminal Procedure, the trial court must only tell the defendant the effect of his plea, as
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that term is set forth in Criminal Rule 11(B)(2). The judgment of the Wayne County Municipal

Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT


WHITMORE, P. J.
CONCURS

MOORE, J.
CONCURS, SAYING:

       {¶8}    It seems counterintuitive that a defendant can enter a knowing, intelligent and

voluntary plea to a first degree misdemeanor domestic violence without knowing the penalties
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that could attach to the plea. Inasmuch as the high court has spoken on the matter and ruled that

it is so, it is so.


APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellee.
