[Cite as State v. Herman, 2016-Ohio-2871.]




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


State of Ohio                                    Court of Appeals No. WM-15-006

        Appellee                                 Trial Court No. TRD1502655

v.

Tyler A. Herman                                  DECISION AND JUDGMENT

        Appellant                                Decided: May 6, 2016

                                             *****

        Rhonda L. Fisher, Bryan City Attorney, for appellee.

        Clayton J. Crates, for appellant.

                                             *****

        YARBROUGH, J.

        {¶ 1} This is an accelerated appeal from the judgment of the Bryan Municipal

Court, convicting appellant, Tyler Herman, of one count of drag racing in violation of

Bryan Municipal Code Section 333.07, a misdemeanor of the first degree.1 For the

reasons that follow, we reverse.


1
 The Bryan Municipal Code refers to the offense as “street racing,” but the ticket and the
court used the term “drag racing.”
                           I. Facts and Procedural Background

       {¶ 2} On July 2, 2015, appellant appeared in the Bryan Municipal Court to be

arraigned on the charge of drag racing. Prior to the cases being called, the court played a

recorded video message of the judge giving the defendants their rights.

       {¶ 3} Upon reaching the podium after his case was called, appellant signed a form

acknowledging that he was informed of the charge against him, his rights including the

right to counsel and to a jury trial, and the nature of the pleas of not guilty, guilty, no

contest, and not guilty by reason of insanity. The trial court then informed him that he

was charged with drag racing, which carries a potential fine of up to $1,000, a potential

jail sentence of up to 180 days, and a driver’s rights suspension. When asked how he

wished to plead, appellant entered a plea of guilty.

       {¶ 4} The court then instructed appellant to read a waiver form located on the

podium, and to understand that by entering the plea he was waiving the rights read to him

in the recording. The court further stated that if appellant understood the rights he was

waiving, then he must initial on the four lines corresponding to the waiver of those rights.

       {¶ 5} Upon receiving the written waiver form, the prosecution offered the factual

basis for the charge, following which the trial court found appellant guilty. The court

then sentenced appellant to pay a fine of $500 plus costs, and ordered a driver’s rights

suspension of 180 days.

       {¶ 6} Appellant has timely appealed his judgment of conviction, asserting three

assignments of error for our review:




2.
                1. The Trial Court Erred to the Prejudice of the Appellant by failing

      to properly inform him of his rights prior to asking for his plea, violating

      Ohio Traffic Rule 8 and failing to determine whether counsel should be

      appointed violating Ohio Rules of Criminal Procedure 22 and 44.

                2. Any waiver of Appellant’s rights, including his right to counsel,

      was not done knowingly and intelligently and is therefore invalid.

                3. The Trial Court Erred to the Prejudice of the Appellant by

      Accepting a Plea when the appellant was not fully informed as to all the

      consequences of the plea in violation of Traffic Rule 10.

                                         II. Analysis

      {¶ 7} In his brief, appellant addresses his three assignments of error together, thus

we will do the same.

      {¶ 8} First, appellant argues that the trial court failed to comply with Traf.R. 8(B),

which states:

                (B) Arraignment procedure. Arraignment shall be conducted in

      open court and shall consist of reading the complaint to the defendant, or

      stating to him the substance of the charge, and calling on him to plead

      thereto. The defendant shall be given a copy of the complaint, or shall

      acknowledge receipt thereof, before being called upon to plead and may in

      open court waive the reading of the complaint.




3.
Appellant contends that the court did not determine that he received a copy of the

complaint before being called upon to enter a plea. Therefore, appellant asserts that he

was not sufficiently informed of the charge against him, particularly where the municipal

code contains no offense of “drag racing.”

         {¶ 9} Upon review, we hold that the trial court complied with Traf.R. 8(B), and

that appellant was sufficiently informed of the charge against him. Pursuant to Traf.R.

3(A), “the complaint and summons shall be the ‘Ohio Uniform Traffic Ticket.’” Here,

the record contains the uniform traffic ticket, which was signed by appellant, and which

listed the offense as drag racing in violation of ordinance 333.07. In addition, the record

contains appellant’s signed “Statement of Rights and Acknowledgment” in which

appellant acknowledged that “I have been given a copy of the charge/ticket.” Finally, the

transcript reveals that the trial court told him that he was being charged with drag racing.

As to appellant’s argument that being informed of the charge of “drag racing” was not

sufficient when the name of the offense is “street racing,” we disagree. Here, the ticket

referred appellant to the proper ordinance section, and we can find no inherent confusion

between the synonymous terms “street racing” and “drag racing.” See Barberton v.

O’Connor, 17 Ohio St.3d 218, 221, 478 N.E.2d 803 (1985) (“[A] complaint prepared

pursuant to Traf.R. 3 simply needs to advise the defendant of the offense with which he is

charged, in a manner that can be readily understood by a person making a reasonable

attempt to understand.”). Therefore, we find appellant’s first argument to be without

merit.




4.
      {¶ 10} In his second argument, appellant contends that the trial court failed to

comply with Traf.R. 8(D). Relatedly, in his third argument, appellant contends that any

waiver of his right to counsel was not done in accordance with Traf.R. 10 and Crim.R.

44, and thus was not made knowingly and intelligently.

      {¶ 11} Traf.R. 8(D) provides,

             (D) Explanation of rights. Before calling upon a defendant to

      plead at arraignment the judge shall cause him to be informed and shall

      determine that defendant knows and understands:

             (1) That he has a right to counsel and the right to a reasonable

      continuance in the proceedings to secure counsel, and, pursuant to Criminal

      Rule 44, the right to have counsel assigned without cost to himself if he is

      unable to employ counsel;

             (2) That he has a right to bail as provided in Rule 4;

             (3) That he need make no statement at any point in the proceeding;

      but any statement made may be used against him;

             (4) That he has, where such right exists, a right to jury trial and that

      he must, in petty offense cases, make a demand for a jury pursuant to

      Criminal Rule 23;

             (5) That if he is convicted a record of the conviction will be sent to

      the Bureau of Motor Vehicles and become part of his driving record.




5.
       {¶ 12} Here, the record contains the audio recording and a transcript of the general

instructions given to all defendants, which includes an explanation of the rights

enumerated in Traf.R. 8(D), as well as the effect of the pleas of guilty, no contest, and not

guilty. We find that such a recording was a permissible method to adequately inform

appellant of those rights. See Traf.R. 8(E) (“If there are multiple defendants to be

arraigned, the judge may advise, or cause them to be advised, of their rights by general

announcement.”); Traf.R. 10(D) (“In misdemeanor cases involving petty offenses, * * *

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 of guilty, no contest,

and not guilty. This information may be presented by general orientation or

pronouncement.”).

       {¶ 13} However, in addition to informing appellant of his rights, the trial court

also “shall determine that defendant knows and understands” those rights. Traf.R. 8(D).

This requires an individualized inquiry. State v. Donkers, 170 Ohio App.3d 509, 2007-

Ohio-1557, 867 N.E.2d 903, ¶ 42 (11th Dist.); State v. Baratko, 9th Dist. Medina No.

1654, 1988 WL 40390, *1 (Apr. 27, 1988). Similarly, when waiving counsel, “[A]

meaningful dialogue between the trial court and a defendant is required whenever the

possibility of incarceration exists and a written waiver of counsel does not satisfy such

requirement.” State v. Groner, 7th Dist. Mahoning No. 96 C.A. 144, 1998 WL 158856,

*5 (Mar. 31, 1998), citing Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 218, 479 N.E.2d

309 (8th Dist.1984).




6.
         {¶ 14} In this case, no dialogue between the court and appellant occurred.

Therefore, we hold that the trial court failed to comply with the requirement of Traf.R.

8(D) to determine that appellant knew and understood the rights he was waiving,

particularly the right to counsel. Accordingly, appellant’s assignments of error are well-

taken.

                                       III. Conclusion

         {¶ 15} For the foregoing reasons, the judgment of the Bryan Municipal Court is

reversed and vacated. This matter is remanded to the trial court for a new arraignment

and proceedings in accordance with this decision. The state is ordered to pay the costs of

this appeal 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.
                                                 _______________________________
Stephen A. Yarbrough, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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