[Cite as Cleveland v. O'Donnell, 2018-Ohio-390.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105597




                                CITY OF CLEVELAND
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                  PETER O’DONNELL
                                                         DEFENDANT-APPELLANT




                                   JUDGMENT:
                              VACATED AND REMANDED



                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2016 CRB 007352

        BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: February 1, 2018
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
By: Michael V. Heffernan
       John T. Martin
Assistant Public Defenders
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
City of Cleveland
Director of Law
By: Patricia McGinty Aston
Assistant Director of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Peter O’Donnell (“appellant”), brings this appeal

challenging his conviction and the trial court’s sentence for failure to comply with an order

of the city of Cleveland’s Building Department. Specifically, appellant argues that his no

contest plea was invalid, the trial court failed to enter a finding of guilt after he entered the

no contest plea nor made the required explanation of circumstances pursuant to R.C.

2937.07, and the trial court erred by resentencing him.       After a thorough review of the

record and law, this court vacates appellant’s no contest plea and sentence, and remands

the matter for further proceedings consistent with this opinion.

                             I. Factual and Procedural History

       {¶2} Appellant is the owner of property located in Cleveland, Ohio. At some

point, the city’s building department issued a condemnation notice pertaining to the garage

on appellant’s property and ordered appellant to abate the hazard.

       {¶3} In April 2016, the city of Cleveland filed a criminal complaint charging

appellant with failure to comply with the building department’s order, a first-degree

misdemeanor in violation of Cleveland Codified Ordinance Section 3103.25(E).

       {¶4} On August 31, 2016, appellant entered a plea of no contest.          The trial court

ordered screening to determine whether appellant was eligible for the Selective

Intervention Program (“SIP”). However, appellant was found to be ineligible for this

diversion program.      On September 27, 2016, the trial court sentenced appellant to
community control sanctions for a period of two years and imposed a $1,000 fine.

         {¶5} In February 2017, the trial court, sua sponte, found that the sentencing journal

entry was void because it (1) failed to specify the relevant ordinance number and describe

the offense alleged in the complaint, (2) failed to specify the date of the offense, (3) failed

to set forth the terms of appellant’s community control sanctions, and (4) failed to advise

appellant of the consequences of violating the terms of community control.           The trial

court’s determination was based on this court’s holdings in Cleveland v. U.S. Bank, N.A.,

2016-Ohio-7402, 72 N.E.3d 1123 (8th Dist.), and Cleveland v. Schornstein Holdings,

L.L.C., 2016-Ohio-7479, 73 N.E.3d 889 (8th Dist.).

         {¶6} The trial court held a resentencing hearing on February 21, 2017, during which

it sentenced appellant to 180 days in jail and a $109,000 fine. The trial court suspended

the jail sentence and fine and imposed community control sanctions for a period of two

years.

         {¶7} On March 20, 2017, appellant filed the instant appeal challenging the trial

court’s judgment.      He assigns three errors for review:

         I.   [Appellant] never entered a plea of no contest in this case.

         II. There was an insufficient factual basis to sustain a guilty verdict.
         III. The trial court erred when it re-sentenced [appellant].

                                      II. Law and Analysis

         {¶8} Appellant’s first and second assignments of error both pertain to his no contest

plea.    The interrelated issues in these assignments of error will be addressed together.

                                       A. No Contest Plea
       {¶9} In his first assignment of error, appellant argues that his no contest plea was

invalid because he never formally tendered the plea during the August 31, 2016 hearing.

We agree.

       {¶10} “A trial court’s obligations in accepting a plea depend upon the level of

offense to which the defendant is pleading.”        State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, ¶ 6.     The plea procedure for a misdemeanor case under

Crim.R. 11 is much less elaborate than the procedure for a felony case. Cleveland v.

Jaber, 8th Dist. Cuyahoga Nos. 103194 and 103195, 2016-Ohio-1542, ¶ 23.

Misdemeanor cases can involve “serious offenses” or “petty offenses.”            A “serious

offense” is defined as an offense for which the penalty includes confinement for more than

six months; a “petty offense” is defined as a misdemeanor offense other than a serious

offense.    Id., citing Crim.R. 2(C) and (D). Crim.R. 11(E) provides that for a “petty

offense,” the trial 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 of guilty,

no contest, and not guilty.”

       {¶11} In the instant matter, appellant was charged with a first-degree misdemeanor

offense, subject to a maximum sentence of 180 days.                   R.C. 2929.24(A)(1).

Accordingly, appellant’s offense was a “petty offense,” and Crim.R. 11 only obligated the

trial court to inform appellant of the effect of his plea. Jones at paragraph one of the

syllabus.   “To satisfy the requirement of informing a defendant of the effect of a plea, a

trial court must inform the defendant of the appropriate language under Crim.R. 11(B).”
Id. at paragraph two of the syllabus.

       {¶12} Crim.R. 11(B) sets forth the effect of guilty or no contest pleas. Crim.R.

11(B)(2) defines the effect of a no contest plea as follows:    “[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 and such plea or admission shall not be used

against the defendant in any subsequent civil or criminal proceeding.” This court has

previously held that a trial court’s failure to make any mention of the Crim.R. 11(B)(2)

language regarding the effect of a no contest plea to a petty misdemeanor offense is a

complete failure to comply with Crim.R. 11(E), requiring the plea to be vacated. Parma

v. Buckwald, 8th Dist. Cuyahoga Nos. 92354 and 92356, 2009-Ohio-4032, ¶ 45-46;

Brecksville v. Grabowski, 8th Dist. Cuyahoga No. 104973, 2017-Ohio-7885, ¶ 13.

       {¶13} In the instant matter, appellant argues that his no contest plea was invalid

because he never formally tendered the no contest plea on the record.        In support of his

argument, appellant directs this court to Cleveland v. Chappell, 8th Dist. Cuyahoga No.

104739, 2017-Ohio-4070.

       {¶14} In Chappell, the defendant-appellant argued that his plea was invalid because

he “never formally stated on the record that he was pleading no contest.” Id. at ¶ 10.

This court recognized that “‘[t]he tendering of a plea of no contest or of guilty has

substantial consequences to a criminal defendant.’”            Id. at ¶ 12, quoting State v.

Singleton, 169 Ohio App.3d 585, 2006-Ohio-6314, 863 N.E.2d 1114 (2d Dist.). This

court further explained that in order to formally tender a no contest plea, “a criminal
defendant must either do so by signing a writing reflecting an express plea, or orally, either

by saying, affirmatively, that he is pleading ‘no contest,’ or by responding affirmatively to

the trial court’s question, ‘are you pleading no contest,’ phrased in the present,

unconditional tense.” Chappell at ¶ id., quoting Singleton at ¶ 71.

       {¶15} In Chappell, this court concluded that the defendant did not formally tender a

no contest plea based on the following exchange:

       COURT: Gentlemen, have you reviewed this case, have you had an
       opportunity to pre-try this with the prosecutor?

       DEFENSE COUNSEL: We have, your Honor.

       COURT: And how would you like to proceed?

       DEFENSE COUNSEL: We’re going to withdraw the not guilty and plead
       no contest, your Honor.

       COURT: All right. Now, Mr. Chappell, I’m sure your attorney has
       covered this with you, but I must personally address you and apprise you that
       when you withdraw your plea of not guilty and enter a plea of no contest, no
       contest is not an admission of guilty, but is an admission that the violation
       did exist.

       When you enter such a plea, you give up your right to a jury trial, your right
       against self-incrimination, and your right for compulsory process, that’s your
       right to bring in your own witnesses, and your right to force the City to prove
       beyond a reasonable doubt your guilt.

       Do you understand those rights and knowingly and willingly give them up?

       CHAPPELL: Yes.

       COURT: All right. I’ll accept your plea.

Chappell at ¶ 11.

       {¶16} In the instant matter, the trial court engaged in the following colloquy with
appellant during the change of plea hearing:

       THE COURT: Okay. Mr. O’Donnell, did you want to plead no contest?

       MR. O’DONNELL: Yes, I believe so.

       THE COURT: Okay. So when you plead no contest that means you’re
       going to give up your right to a jury trial; your right to say nothing because
       you don’t have to say anything. The prosecutor has to prove his case
       against you.

       You have the right to bring in your own witnesses and your right to force the
       City to prove their case beyond a reasonable doubt. Now keep in mind
       we’re going to consider putting this back on the Selective Intervention
       Program. And we’re going to do another screening at a later date for that.

       Do you wish to plead no contest, understanding the rights that you give up in
       order to plead no contest?
       MR. O’DONNELL: Yes, I do.

(Tr. 4-5.)

       {¶17} After reviewing the record, we cannot say that appellant formally tendered a

no contest plea.   Appellant did not affirmatively state that he was pleading “no contest.”

Further, although appellant responded affirmatively to the trial court’s question “[d]o you

wish to plead no contest, understanding the rights that you give up in order to plead no

contest[,]” this question is not phrased in the present, unconditional tense, nor is it clear

whether appellant responded affirmatively because he wished to plead no contest,

understood the rights he would be giving up by pleading no contest, or both.

Accordingly, we find that appellant did not expressly tender a no contest plea.

       {¶18} We further find that the trial court failed to fulfill its obligations under

Crim.R. 11(E) before accepting appellant’s plea of no contest to a petty offense.   The trial
court’s sole obligation under Crim.R. 11 was to advise appellant of the effect of his no

contest plea — that the no contest plea was not an admission of guilt, but rather an

admission of what was alleged in the complaint.       The record reflects that the trial court

failed to provide this advisement to appellant.   Nor were the allegations in the complaint

identified or discussed during the change of plea hearing.

       {¶19} Further, the record demonstrates that appellant did not understand the effects

of the no contest plea and did not understand that he was admitting to the truth of the facts

in the complaint.   After appellant indicated that he wished to plead no contest, appellant

asserted that the case arose “because of a fire that my garage burned down,” and that “the

fire was no fault of my own.”     (Tr. 6.)   Appellant further stated, “[w]ell in a way [the

fire] was a good thing because [the garage] is all gone.”    (Tr. 6.)   Accordingly, based on

the record before this court and the statements appellant made during the change of plea

hearing, we cannot say that appellant knowingly, voluntarily, and intelligently entered the

no contest plea.

       {¶20} Based on the foregoing analysis, appellant’s first assignment of error is

sustained.

       {¶21} In his second assignment of error, appellant argues, in part, that the trial court

never accepted the no contest plea nor entered a finding of guilty after he pled no contest.

We agree.

       {¶22} The record in this case reflects that the trial court did not make a finding of

guilt after appellant entered the no contest plea. See Grabowski, 8th Dist. Cuyahoga No.
104973, 2017-Ohio-7885, at ¶ 15 (after the defendant pled no contest, “the magistrate did

not make a finding of guilt, but rather treated [defendant’s] no contest plea as if it were a

guilty plea and proceeded directly to sentencing.”). The trial court treated appellant’s no

contest plea as if it were a guilty plea and proceeded to refer appellant for screening to

determine whether he was eligible for the SIP program.

                                      B. R.C. 2937.07

       {¶23} Appellant further argues in his second assignment of error that the trial court

failed to comply with R.C. 2937.07 because there was no explanation of circumstances

during the hearing to support a guilty verdict. As such, appellant contends that his

conviction must be vacated and that double jeopardy attaches, barring further prosecution

or a remand for a new plea hearing.   We disagree.

       {¶24} R.C. 2937.07, governing no contest pleas in misdemeanor cases, provides,

“[a] plea to a misdemeanor offense of ‘no contest’ or words of similar import shall

constitute an admission of the truth of the facts alleged in the complaint and that the judge

or magistrate may make a finding of guilty or not guilty from the explanation of the

circumstances of the offense.” In support of his argument that the trial court failed to

comply with R.C. 2937.07, appellant directs this court to Berea v. Moorer,

2016-Ohio-3452, 55 N.E.3d 1186 (8th Dist.).

       {¶25} In Moorer, the defendant-appellant pled no contest to a first-degree

misdemeanor OVI. This court explained that pursuant to R.C. 2937.07,

       when a trial court finds a defendant guilty after that defendant has entered a
       no contest plea, the record must provide an “explanation of circumstances”
          that includes a statement of the facts supporting all of the essential elements
          of the offense. Chagrin Falls v. Katelanos, 54 Ohio App.3d 157, 561
          N.E.2d 992 (8th Dist.1988), paragraph four of the syllabus; Cuyahoga Falls
          v. Bowers, 9 Ohio St.3d 148, 150, 459 N.E.2d 532 (1984). An explanation
          of circumstances is required so that the trial court does not simply make the
          finding of guilty in a perfunctory fashion. Bowers at 150. Moreover, “the
          mere fact that the court’s record includes documents which could show the
          defendant’s guilt will not suffice. If the prosecution relies on such
          documents, the record must show that the court considered them.”
          Katelanos at 158, citing Bowers at 151.

(Emphasis added.) Moorer at ¶ 9.           This court concluded that the trial court failed to

comply with R.C. 2937.07 because the trial court found the defendant guilty without

providing an explanation of the circumstances. Id. at ¶ 13.         Regarding the remedy for

the trial court’s failure to comply with R.C. 2937.07, this court held,

          a trial court’s failure to comply with R.C. 2937.07 is more than mere trial
          error, but is instead a failure to establish facts sufficient to support a
          conviction. As such, double jeopardy attaches, thereby preventing the state
          from getting a second chance to meet its burden. For these reasons, we find
          that Moorer must be acquitted of the OVI offense.

Moorer at ¶ 22.

          {¶26} After reviewing the record, we find this case to be distinguishable from

Moorer.      Although we agree that the record from the change of plea hearing reflects that

there was no explanation of the circumstances of the failure to comply offense whatsoever,

the trial court did not make a finding of guilty after appellant entered the no contest plea.

Therefore, the trial court did not violate R.C. 2937.07, and double jeopardy does not

attach.

          {¶27} Appellant’s second assignment of error is sustained in part and overruled in

part.
                                      III. Conclusion

       {¶28} After thoroughly reviewing the record, we find that appellant did not

expressly tender a no contest plea during the August 31, 2016 hearing; the trial court failed

to comply with Crim.R. 11(E); and the trial court failed to enter a finding of guilt during

the change of plea hearing.     Accordingly, appellant’s no contest plea and sentence are

vacated, and the matter is remanded for further proceedings.

       {¶29} Our disposition of appellant’s first and second assignments of error renders

appellant’s third assignment of error moot.

       {¶30} This cause is vacated and remanded to the lower court for further

proceedings consistent with this opinion.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court 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.



FRANK D. CELEBREZZE, JR., JUDGE

EILEEN T. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR
