[Cite as State v. Arnold, 2017-Ohio-5674.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio/City of Toledo                     Court of Appeals No. L-15-1292

        Appellee                                 Trial Court No. TRC-15-02909

v.

James Edward Arnold, Jr.                         DECISION AND JUDGMENT

        Appellant                                Decided: June 30, 2017

                                             *****

        David Toska, City of Toledo Chief Prosecutor, and
        Henry Schaefer, Assistant Prosecutor, for appellee.

        Eric Allen Marks, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Toledo Municipal Court that found

appellant, James Edward Arnold, Jr., guilty of one count of operating a motor vehicle

under the influence in violation of R.C. 4511.19(A)(1) after appellant entered a no contest

plea. For the reasons that follow, the judgment of the trial court is reversed and

appellant’s judgment of conviction is vacated.
       {¶ 2} Appellant was issued a traffic citation on January 24, 2015, for one count of

speeding in violation of R.C. 4511.12, two counts of operating a vehicle under the

influence in violation of R.C. 4511.19(A)(1) and (A)(2), and one count of occupant

restraining device in violation of R.C. 4513.263(B)(1). Appellant refused to submit to a

breathalyzer test. He was given an administrative license suspension and charged with

the offenses set forth above.

       {¶ 3} The record reflects that the complaint did not contain any additional

comments on the back of the ticket and was simply marked as a refusal. There was no

notation made by the arresting officer to support his determination that appellant was

operating a vehicle under the influence. Appellant entered a not guilty plea.

       {¶ 4} After multiple pretrials and continuances of the trial dates, the matter was

scheduled for trial on October 28, 2015. Appellant then entered a no contest plea to the

first OVI charge. Defense counsel consented to a finding and waived the reading and call

for an explanation of circumstances. During the plea colloquy, the prosecutor did not

make any statement as to what the evidence would have shown if the case proceeded to

trial and did not supplement the complaint with additional information from the arresting

officer. The officer did not testify at the plea hearing or the sentencing hearing.

       {¶ 5} The trial court accepted the no contest plea, stated that the reading of

explanation of circumstances was waived, and found appellant guilty based upon the

complaint. The trial court sentenced appellant to serve 180 days, with 150 suspended. A




2.
brief stay of the incarceration portion of his sentence was granted for appellant to get his

affairs in order.

       {¶ 6} Trial counsel filed a motion to modify the sentence, arguing that a 2013

charge of OVI had been amended to reckless operation, first offense, minor

misdemeanor. The trial court denied the motion without a hearing or written decision.

Appellant’s counsel filed a notice of appeal and the stay of imposition of the days at

CCNO was extended, allowing the trial judge an opportunity to rule on the motion for a

stay of execution of the sentence pending appeal. That motion was granted.

       {¶ 7} Appellant sets forth the following assignments of error:

               FIRST ASSIGNMENT OF ERROR

               The trial court violated appellant’s right to due process by finding

       him guilty after a no contest plea without requiring an explanation of the

       circumstances from the city.

               SECOND ASSIGNMENT OF ERROR

               The trial court lacked sufficient evidence to find appellant guilty

       following his no contest plea, and he should be acquitted of the OVI

       offense.

               THIRD ASSIGNMENT OF ERROR

               Appellant was denied his right to effective assistance of counsel in

       violation of the Sixth and Fourteenth Amendments to the United States




3.
       Constitution and Article 1, Sections 1, 2, 10, 16 & 19 of the Ohio

       Constitution.

       {¶ 8} We will first consider appellant’s second assignment of error. In support of

this claim, appellant asserts that the trial court limited its determination of his guilt or

innocence to a review of the complaint which contained no information to assist in

determining whether appellant operated a vehicle on the date in question while under the

influence of alcohol.

       {¶ 9} The record in this case is silent as to any proof of the elements of R.C.

4511.19(A)(1). Further, the state does not dispute appellant’s assertions that the

complaint contained no additional comments regarding appellant’s claimed violation of

R.C. 4511.19(A)(1), that the arresting officer did not testify at either the plea or

sentencing hearing, and that the trial court simply accepted the waiver of a reading of an

explanation of circumstances.

       {¶ 10} Based on the foregoing, this court finds that the trial court lacked sufficient

evidence to find appellant guilty of the offense of operating a motor vehicle under the

influence of alcohol in violation of R.C. 4511.19(A)(1) and, accordingly, appellant’s

second assignment of error is well-taken. Assignments of error Nos. 1 and 3 are

therefore found moot.




4.
       {¶ 11} On consideration whereof, the October 28, 2015 judgment of the Toledo

Municipal Court is reversed and appellant’s conviction is vacated. Costs of this appeal

are assessed to appellee pursuant to App.R. 24.


                                                                      Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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