[Cite as State v. Williams, 2016-Ohio-7777.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 103762



                                       STATE OF OHIO
                                                              PLAINTIFF-APPELLEE

                                                  vs.

                                 KENNETH WILLIAMS
                                                              DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                VACATED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-593079-A

               BEFORE:           Blackmon, J., Stewart, P.J., and Boyle, J.

              RELEASED AND JOURNALIZED:                      November 17, 2016
                              -i-



ATTORNEY FOR APPELLANT

Mark R. Marshall
P.O. Box 451146
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Edward D. Brydle
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

      {¶1} Appellant Kenneth Williams (“Williams”) appeals his conviction for theft

and assigns the following error for our review:

      The trial court erred in accepting appellant’s no contest plea for theft when
      it was clearly based upon the proffer by the State of Ohio that appellant did
      not knowingly obtain or exert control over property without the consent of
      the owner or person authorized to give consent.

      {¶2} Having reviewed the record and pertinent law, we vacate William’s

conviction and order that he be discharged. The apposite facts follow.

      {¶3} Williams was indicted for grand theft pursuant to R.C. 2913.02(A)(1) and

subsequently entered a no contest plea to the indictment. At the plea hearing, it was

revealed that Williams defrauded the victim out of $17,000 by attempting to lease him a

house in which Williams possessed no legal interest and also persuaded the victim to

invest in a second home in which Williams possessed no legal interest.          After the

prosecutor stated the facts supporting the indictment, Williams’s counsel informed the

trial court that “we’ll stipulate to the finding.” (Tr. 35). The trial court subsequently

found Williams guilty of grand theft.         The trial court ordered Williams to pay

restitution to the victim and sentenced Williams to 15 months in prison.

                   Trial Court Erred by Accepting No Contest Plea

      {¶4} In his sole assigned error, Williams contends that the trial court erred by

accepting his no contest plea because the state’s recitation of the facts eliminated the

element of “without consent” needed for theft pursuant to R.C. 2913.02(A)(1).
       {¶5} A felony no contest plea differs from a misdemeanor plea because a felony

plea does not require that a statement of facts be presented prior to the court accepting the

plea. State v. Magone, 2d Dist. Clark No. 2015-CA-94, 2016-Ohio-7100, ¶ 45. Instead,

in a felony “[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 indictment, information, or complaint.”

Crim.R. 11(B)(2).        “[W]here the indictment, information, or complaint contains

sufficient allegations to state a felony offense and the defendant pleads no contest, the

court must find the defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d

582, 584, 692 N.E.2d 1013 (1998). “[B]y pleading no contest to the indictment,” a

defendant “is foreclosed from challenging the factual merits of the underlying charge.”

Id.

       {¶6} Williams was indicted for theft pursuant to R.C. 2913.02(A)(1), which

provides:

       (A) No person, with purpose to deprive the owner of property or services,
       shall knowingly obtain or exert control over either the property or services
       in any of the following ways:

       (1) Without the consent of the owner or person authorized to give consent;

       {¶7} By pleading no contest, Williams admitted to the truth of the facts alleged

in his indictment. In the instant case, Williams’s indictment mirrored the elements set

forth in R.C. 2913.02(A)(1).     Therefore, because his indictment contained sufficient

allegations to state a felony, according to Bird, the trial court was obligated to find him

guilty of the offense.
       {¶8} However, several appellate districts have recognized in dicta an exception

to Bird where the state presents a statement of facts in a felony no contest plea that

positively eliminates the existence of an essential element of the offense charged in the

indictment. These districts have concluded that the trial court errs in making a finding of

guilt under these circumstances.       See State v. Campbell, 1st Dist. Hamilton No.

C-140372, 2015-Ohio-1464, ¶ 18; State v. Cooper, 168 Ohio App.3d 378,

2006-Ohio-4004, 860 N.E.2d 135, ¶ 6 (2d Dist.); State v. Mullen, 191 Ohio App.3d 788,

2011-Ohio-37, 947 N.E.2d 762 (3d Dist.); State v. Stepp, 4th Dist. Scioto No. 09CA3328,

2010-Ohio-3540, ¶ 34; State v. Brown, 6th Dist. Lucas No. L-08-1183, 2009-Ohio-513, ¶

11; State v. Blair, 11th Dist. Portage No. 2012-P-0145, 2013-Ohio-3477, ¶ 21; State v.

Watson, 12th Dist. Clinton No. CA20007-04-020, 2008-Ohio-629, ¶ 9.

       {¶9} The Ohio Supreme Court has not yet addressed this situation, and the Eighth

District has not yet ruled on a similar case since the Supreme Court decided Bird.      Prior

to Bird, this court in State v. Mehozonek, 8 Ohio App.3d 271, 456 N.E.2d 1353 (8th

Dist.1983), addressing a similar situation in a felony no contest plea held, “[w]here the

facts presented to the trial court unequivocally negate an essential element of the offense

charged in the indictment, it is an abuse of discretion for the court to accept the no contest

plea of the defendant.” Id. at 273-274, citing State v. Cohen, 60 Ohio App.2d 182, 396

N.E.2d 235 (1st Dist.1978).        In Mehozonek, this court reversed the defendant’s

conviction and vacated the plea after concluding it was an abuse of discretion for the trial
court to accept the defendant’s plea to a felony based on the facts presented by the

prosecutor.

       {¶10} The recent cases from this district cited by the state in its appellate brief are

not cases in which the prosecutor set forth facts in which an element of the indicted

offense has been absolutely negated. See State v. Newrones, 8th Dist. Cuyahoga No.

97216, 2012-Ohio-710 (indictment and facts were the same); State v. Baumgartner, 8th

Dist. Cuyahoga Nos. 89190, 91207, and 91208, 2009-Ohio-624 (although defendant

argued state’s proffers were insufficient to establish the offense, the opinion does not

reveal that the evidence positively negated an element of the offense); State v. Cameron,

8th Dist. Cuyahoga No. 85141, 2005-Ohio-2831 (evidence did not positively negate an

essential element of the offense).

       {¶11} We agree that there is an exception to the Supreme Court’s decision in Bird.

  When the trial court asks for the recitation of the facts underlying a no contest plea to a

felony charge and those facts negate the existence of an essential element of the offense

charged, the trial court errs in making a finding of guilt.

       {¶12} Here, after Williams entered his no contest plea, the trial court elicited facts

from the prosecutor prior to accepting the plea. The facts as set forth by the prosecutor

indicated that the victim willingly gave Williams his money, but under the false pretense

that he believed that Williams owned the properties. Thus, Williams, in fact, received

the money with the victim’s consent.      Because “without consent” is an element of R.C.
2913.02(A)(1), the trial court erred by making a finding of guilt. Accordingly, Williams’s

assigned error is sustained.

       {¶13} Williams’s conviction is vacated, and he is ordered discharged.

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

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas 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.



PATRICIA ANN BLACKMON, JUDGE

MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR
