[Cite as Mayfield Hts. v. Aziz-Hakim, 2012-Ohio-5890.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98176


                       CITY OF MAYFIELD HEIGHTS

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                  ALI A. AZIZ-HAKIM
                                                          DEFENDANT-APPELLANT




                               JUDGMENT:
                      AFFIRMED IN PART, REVERSED IN
                           PART AND REMANDED


                                        Criminal Appeal from
                                      Lyndhurst Municipal Court
                                       Case No. 11 CRB 00981

        BEFORE: Stewart, P.J., Celebrezze, J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                         December 13, 2012
ATTORNEY FOR APPELLANT

Richard Agopian
The Hilliard Building
1415 W. 9th Street, 2nd Floor
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

George J. Argie
Mayfield Heights City Prosecutor
Lyndhurst Municipal Court
5301 Mayfield Road
Lyndhurst, OH 44124

Dominic J. Vitantonio
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Mayfield Village, OH 44143
MELODY J. STEWART, P.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1, the record from the Lyndhurst Municipal Court, and the briefs and

oral arguments of counsel.

       {¶2} Defendant-appellant Ali Aziz-Hakim signed a written waiver of his right to

counsel and pleaded no contest to single counts of theft and possession of criminal tools,

both of which were first degree misdemeanors. In this appeal, he argues that he did not

validly waive the right to counsel, that he did not make his no contest plea knowingly and

intelligently, and that the court erred by banning him from the store where he committed

his crimes.

                                             I

       {¶3} Although Aziz-Hakim signed a waiver of rights form that included a waiver

of the right to counsel, he argues that the court failed to engage him in the type of

meaningful dialogue necessary to find a valid waiver of the right to counsel.

       {¶4} The maximum penalty for first degree misdemeanor theft under R.C.

2913.02(B)(2) and first degree possession of criminal tools under R.C. 2923.24(C) is not

more than 180 days in jail. See R.C. 2929.24(A)(1). This means that both offenses are

“petty” offenses. See Crim.R. 2(D). A defendant is entitled to counsel in petty offense

cases unless he “knowingly, intelligently, and voluntarily waives assignment of counsel.”
Crim.R. 44(B). If a defendant in a petty offense case chooses to waive counsel, the

waiver must occur in open court and be recorded. See Crim.R. 22 and 44(C).

      {¶5} Before entering his no contest plea, Aziz-Hakim signed a form called “Traffic

and Misdemeanor Criminal Cases Only Statement of Rights.” That form contained a

waiver of counsel section stating:    “I HEREBY KNOWINGLY, INTELLIGENTLY

AND VOLUNTARILY WAIVE MY RIGHT TO COUNSEL.” (Emphasis sic.) The

transcript of the plea hearing shows that when Aziz-Hakim appeared before the court, he

had filled out all but the waiver of counsel provision in the form. The court told

Aziz-Hakim that “[y]ou need to waive counsel, sir, if you are going to go forward with

your plea.” To this, Aziz-Hakim replied, “[a]ll right. I’m in.” The court’s deputy

witnessed Aziz-Hakim’s signature.

      {¶6} We determine whether a waiver of the right to counsel in a no contest plea is

voluntarily, intelligently, and knowingly made by looking to the totality of the

circumstances.   State v. Calvillo, 76 Ohio App.3d 714, 719, 603 N.E.2d 325 (8th

Dist.1991), citing State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979).

      {¶7} The circumstances in this case were that Aziz-Hakim appeared solo before

the court intending to plead no contest to charges of theft. We need not decide whether,

standing alone, Aziz-Hakim’s response that “I’m in” to the court’s statement about

signing the waiver of counsel portion of the form might not have sufficed to show that he

knowingly waived the right to counsel — the transcript of the plea hearing shows that the

court also advised Aziz-Hakim in open court that “you are giving up your right to
counsel[.]” Even if Aziz-Hakim had been unsure of the rights that he waived by signing

the waiver of rights form, the court’s colloquy with Aziz-Hakim and his affirmative reply

to the court’s additional advisement regarding the waiver of counsel satisfies us that he

knowingly and intelligently waived his right to counsel.

       {¶8} Our conclusion that the totality of the circumstances show that Aziz-Hakim

knowingly and intelligently waived his right to counsel is reinforced by his vast exposure

to the criminal justice system, an exposure that makes it wholly improbable to think that

Aziz-Hakim did not understand the nature of what he was waiving. During sentencing,

the court noted that Aziz-Hakim was no stranger to the criminal justice system,

commenting on how he had “37 cycles on your criminal history.” The court recited a list

including “theft, robbery, shoplifting, parole violations, shoplifting, grand theft, robbery,

grand theft, drug abuse, possession of cocaine, aggravated trafficking, theft, parole

violation, drug abuse, weapons under disability. Need I go on? I’m only at number 14.”



       {¶9} Constitutional protections do not lessen the more a defendant is involved in

the criminal justice system.       But it would be disingenuous for a person with

Aziz-Hakim’s very lengthy criminal history to argue that he did not understand that his

signature on the written plea form confirmed that he was waiving his right to counsel

when signing the waiver of rights form.

                                             II
        {¶10} Aziz-Hakim next argues that the plea form gave him the incorrect

impression that despite entering a no contest plea, the court could hold a bench trial and

find him not guilty.

        {¶11} In North Carolina v. Alford, 400 U.S. 25, 36, 91 S.Ct. 160, 27 L.Ed.2d 162

(1970), the United States Supreme Court stated:

        Throughout its history * * * the plea of nolo contendere has been viewed
        not as an express admission of guilt but as a consent by the defendant that
        he may be punished as if he were guilty and a prayer for leniency. Fed.
        Rule Crim. Proc. 11 preserves this distinction in its requirement that a court
        cannot accept a guilty plea “unless it is satisfied that there is a factual basis
        for the plea”; there is no similar requirement for pleas of nolo contendere,
        since it was thought desirable to permit defendants to plead nolo without
        making any inquiry into their actual guilt.

 Id. at fn. 8.

        {¶12} A plea of no contest is not an admission of guilt, but an admission of the

truth of the facts alleged in the indictment, information, or complaint. Crim.R. 11(B)(1)

and (2). When accepting a no contest plea, the court does not determine whether there is

a factual basis for the plea; rather, it determines whether the “indictment, information, or

complaint contains sufficient allegations to state a[n] * * * offense.” State ex rel. Stern

v. Mascio, 75 Ohio St.3d 422, 425, 662 N.E.2d 370 (1996). “If the court determines that

the alleged facts are insufficient to state the charged offense, it may find the defendant

guilty of a lesser included offense, State ex rel. Leis v. Gusweiler (1981), 65 Ohio St. 2d

60, 61, 19 Ohio Op. 3d 257, 418 N.E. 2d 397, 398, or dismiss the charge.” (Footnote

omitted.) Id. at 424-425.

        {¶13} The waiver of rights form signed by Aziz-Hakim stated:
      I understand that if I plead no contest, the Court will make a finding
      regarding whether I am guilty or not guilty based upon the explanation of
      the circumstances as they are set forth in the complaint, as they are
      presented by the prosecutor, or as they are presented by the complainant.

      {¶14} Although the waiver of rights form used the words “guilty or not guilty,” the

form itself correctly stated the scope of the court’s obligations when taking a no contest

plea in misdemeanor cases.        R.C. 2937.07, which governs no contest pleas in

misdemeanor cases, states:

      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.

      {¶15} The language used in the waiver of rights form signed by Aziz-Hakim

closely tracked the language of R.C. 2937.07. Consistent with the statute, the waiver of

rights form said that the court would make a finding of guilty or not guilty based on an

explanation of the circumstances of the offense.

      {¶16} Aziz-Hakim cites State v. Fitzgerald, 8th Dist. No. 92978, 2010-Ohio-363,

and State v. Gibson, 8th Dist. No. 93878, 2010-Ohio-3509, for the proposition that

statements made by the court and defense counsel to the effect that waiving a jury trial

would mean that the court itself would be making the determination of whether the

defendants were guilty or not guilty were confusing because it led each defendant to

believe they would be receiving a bench trial at which they might possibly be found not

guilty. Fitzgerald at ¶ 33; Gibson at ¶ 23. Neither case is applicable here because they

involved felony offenses for which R.C. 2937.07 did not apply. Because Aziz-Hakim
was charged with a misdemeanor offense, the court could “make a finding of guilty or not

guilty from the explanation of the circumstances of the offense” as allowed by R.C.

2937.07.

                                             III

       {¶17} The court sentenced Aziz-Hakim to 180 days in jail, and further stated

“Banned From Walmart.” Aziz-Hakim complains that while the court could ban him

from the store as a condition of community control, it could not impose community

control where the court imposed the maximum jail term for a first degree misdemeanor

with no part of that sentence suspended. We agree and sustain this assignment of error

on the authority of State v. Jacobs, 189 Ohio App.3d 283, 2010-Ohio-4010, 938 N.E.2d

79, ¶ 9 (8th Dist.). We remand with instructions for the court to vacate the Walmart ban

placed upon Aziz-Hakim.

       {¶18} This cause is affirmed in part, reversed in part, and remanded to the trial

court for further proceedings consistent with this opinion.

       It is ordered that the appellant and appellee share the 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 Lyndhurst

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated.      Case remanded to the trial

court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
JAMES J. SWEENEY, J., CONCUR
