[Cite as State v. Kennedy, 2019-Ohio-34.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
THOMAS KENNEDY                               :       Case No. 18 CAC 05 0036
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware Municipal
                                                     Court, Case No. 17 TRC 012155




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    January 8, 2019



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHRISTOPHER E. BALLARD                               MICHAEL A. MARROCCO
Assistant City Prosecutor                            98 North Union Street
70 North Union Street                                Delaware, Ohio 43015
Delaware, Ohio 43015
Delaware County, Case No. 18 CAC 05 0036                                           2

Baldwin, J.

       {¶1}   Appellant, Thomas Kennedy, appeals the decision of the Delaware

Municipal Court finding him guilty of a violation of R.C. 4511.19(A)(1)(a) after he entered

a plea of no contest. Appellee is the State of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   Appellant was charged with a violation of R.C. 4511.19(A)(1)(a), OVI, and

R.C. 4511.202, Failure to Maintain Reasonable Control, and initially entered a plea of not

guilty and filed a motion to suppress evidence derived from his seizure and detention.

The motion was denied and appellant changed his plea to no contest. Appellant’s plea

was accepted and he was found guilty of OVI. Appellant appeals his conviction arguing

that the explanation of circumstances offered in support of the charge was insufficient to

establish all elements of the offense and that the complaint should be dismissed as

jeopardy has attached.

       {¶3}   Deputy Andrew Lee of the Delaware County Sheriff’s Office was dispatched

to a parking lot on Powell Road in Delaware County where appellant had allegedly struck

a concrete median. When he arrived at the scene, the person who claimed to have

witnessed appellant’s collision with the median led Deputy Lee to appellant. Deputy Lee

approached appellant, introduced himself and explained why he was present. Appellant

dropped a protein bar and Deputy Lee noted that he had difficulty picking it up. Deputy

Lee noticed that appellant’s eyes were very droopy, his voice was low and raspy, and he

was sluggish. Appellant exhibited body and eyelid tremors and a poor gait.

       {¶4}   Deputy Lee suspected that appellant was under the influence of alcohol or

drugs, so he asked him to step outside so he could administer field sobriety tests. He
Delaware County, Case No. 18 CAC 05 0036                                            3


asked appellant if he had taken any medication and appellant admitted taking Suboxone

for pain medication addiction. He denied any medical problems, but contended he had a

balance problem. The vertical gaze nystagmus test did not provide any clues to

intoxication, but horizontal gaze nystagmus, lack of convergence, walk and turn, and one

leg stand tests all were positive for clues indicating appellant was under the influence of

some substance. The deputy administered a Modified Romberg test to gauge appellant’s

reaction time because he feared that appellant was under the influence of drugs. The

deputy noted appellant’s reaction time was slow.        He asked appellant to recite the

alphabet from “d” to “w” but he could not do so. Appellant was able to count backward

from 62 to 47 without difficulty.

       {¶5}   Appellant’s collision with the concrete median, his behavior and

performance during the field sobriety test led the deputy to conclude that probable cause

existed to arrest appellant for a violation of R.C. 4511.19(A)(1)(a).

       {¶6}   Appellant filed a motion to suppress the evidence that was developed

through his contact with Deputy Lee. The motion was heard on November 1, 2017 and

the appellant limited his argument to asserting that Deputy Lee lacked (1) any reason to

approach him and (2) any reasonable suspicion to ask him to perform field-sobriety tests.

Appellant conceded that the field sobriety tests were properly administered and that the

Deputy had probable cause to arrest appellant. The trial court issued an entry denying

the motion with a thorough review of the facts.

       {¶7}   The trial court found that Deputy Lee’s initial contact with appellant was

consensual and that he was acting in his community caretaking role in speaking with

appellant to the extent that the appellant’s Fourth Amendment rights were involved. The
Delaware County, Case No. 18 CAC 05 0036                                             4


trial court also concluded the Deputy had reasonable suspicion of a violation of R.C.

4511.19(A)(1)(a) sufficient to support the performance of field sobriety tests. The trial

court denied the appellant’s motion to suppress evidence and, on the date of trial,

appellant changed his plea to no contest to the OVI charge. The failure to control citation

was dismissed.

       {¶8}   After appellant confirmed his plea of no contest, the prosecutor offered the

following:

       Thank you, Your Honor. On April 20th of 2017, Deputy Lee responded to

       the report of a reckless driver complaint involving a Mercedes that had ran

       over a curb. Upon arrival to this address in Powell, Delaware County, Ohio,

       he found the Defendant ultimately after someone pointed him out and he

       noticed immediately that the Defendant was unsteady on his feet, he had

       glassy eyes, immense body tremors and eye lid tremors. While speaking to

       him, Deputy Lee noted that he did not smell the odor of alcoholic beverage.

       He noted — he asked the Defendant to perform field sobriety tests including

       the HGN where two out of six clues were observed, the walk and turn, also

       lack of convergence and modified Romberg. He ultimately placed him under

       arrest for this OVI. He did lo-cate(sic) a green pill with a half Alprazolam in

       it. He did submit to a, urn...

       Mr. Marrocco: Urine.

       Prosecutor: A urine sample, correct?

       Mr. Marrocco: Yes.
Delaware County, Case No. 18 CAC 05 0036                                                  5


       Prosecutor: Sorry. And there was no detectable over the limit amount;

       however, there were, Alprazolam was present, alpha hydroxyl present, and

       Buprenorphine. The State did enlist the help of the DRE in the prosecution

       of this matter.

(Transcript, Change of Plea and Sentencing, p. 8, lines 2-25; p. 9, lines 1-2).

       {¶9}    The trial court found the appellant guilty and imposed a sentence. The trial

court later commented that she “remembered the suppression hearing” specifically in

reference to her perception of appellant’s mental state. The appellant filed a timely appeal

on March 21, 2018 and submitted one assignment of error:

       {¶10} “I. THE TRIAL COURT ERRED IN FINDING SUFFICIENT EVIDENCE TO

CONVICT APPELLANT ON HIS NO-CONTEST PLEA.”

       {¶11} In R.C. 2937.07 the meaning and legal import of a “no contest” plea is

established:

               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.

                                           ***

               If a finding of guilty is made, the judge or magistrate shall impose the

       sentence or continue the case for sentencing accordingly. A plea of “no

       contest” or words of similar import shall not be construed as an admission

       of any fact at issue in the criminal charge in any subsequent civil or criminal

       action or proceeding.
Delaware County, Case No. 18 CAC 05 0036                                                  6


        {¶12} Appellant contends that the explanation of circumstances provided by the

state at the sentencing hearing was insufficient as it allegedly failed to provide facts in

support of all elements of the offense of a violation of R.C. 4511.19(A)(1)(a). Appellee

contends that the explanation was sufficient and that the trial court’s findings in the

suppression hearing provided an explanation of circumstances sufficient to satisfy the

statute, citing our decision in State v. Wendell, 5th Dist. Stark No. CA-8179, 1991 WL

6288.

        {¶13} The seminal pronouncement of the Ohio Supreme Court on the impact of

R.C. 2937.07 is City of Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 459 N.E.2d 532

(1984). The court concluded that this statute establishes a substantive right and held:

“Therefore, a no contest plea may not be the basis for a finding of guilty without an

explanation of circumstances.” Bowers, at 535.

        {¶14} In Bowers the trial court considered a computer print-out of Bowers' driving

record before issuing a finding of guilty of violating local ordinances prohibiting operation

of a vehicle under the influence of alcohol or a drug of abuse and failure to control. Mr.

Bowers appeared before the trial court only hours after his arrest, without counsel and

entered a no contest plea. There was no record demonstration that other evidence in the

file was submitted to the trial court. Because of this silent record the court reversed and

remanded. Justice Holmes dissented, in effect applying the presumption of regularity and

assuming that the trial court did read the numerous exhibits in the file.

        {¶15} When faced with this issue previously, this court noted that:

               The statute does not prescribe a time or sequence within which the

        ‘explanation of circumstances' must take place. It is clear here that the trial
Delaware County, Case No. 18 CAC 05 0036                                               7


       judge and the defendant both had heard ‘explanation of circumstances' as

       to some of the charges at the time of the lengthy suppression hearing. We

       will not assume that either forgot them at the time of the judgment on

       suppression or at the time of accepting the plea, ***. It is in this regard that

       we distinguish the holding in Bowers, supra.

State v. Wendell (Jan. 14, 1991), Stark App. No. CA–8179, 1991 WL 6288, as cited in

State v. Nichols, 5th Dist. Coshocton No. 01CA016, 2002-Ohio-4048, ¶ 35.

       {¶16} As we noted in Nichols, supra “The “evil” the Ohio Supreme Court

proscribed in Cuyahoga Falls v. Bowers was a trial court making a finding of guilty in a

“perfunctory fashion.” The Supreme Court reversed Bowers' conviction when the record

reflected that the trial court considered nothing but a computer printout of the defendant's

driving record to convict the defendant of DUI. Nichols, at ¶ 15. The state has the burden

to insure that the record contains an explanation of facts that, if the court were to accept

them as true, would permit the court to enter a guilty plea. State v. Osterfeld, 2nd Dist.

Montgomery No. 20677, 2005-Ohio-3180, ¶ 6; State v. Jenkins, 3rd Dist. Hancock No. 5-

15-21, 2016-Ohio-1428, ¶ 7; State v. Murphy, 116 Ohio App.3d 41, 45, 686 N.E.2d 553,

555–56 (9th Dist.1996). We have found that the explanation may be provided by a

suppression hearing or an ALS appeal hearing. Wendell, supra; Nichols, supra at ¶36.

The focus of our analysis is whether, when the record is reviewed in toto, we can conclude

that the trial court’s finding was not a perfunctory finding of guilty and that the trial court

considered a sufficient set of circumstances to support appellant's conviction. Nichols,

supra. In the case at bar, the explanation of fact provided by the assistant prosecutor at

the sentencing hearing and the information contained within the record as a result of the
Delaware County, Case No. 18 CAC 05 0036                                               8


suppression hearing lead us to conclude that the record contains a sufficient explanation

of facts to support the finding of guilt and that, therefor, the trial court’s action cannot be

described as a perfunctory finding of guilt.

       {¶17} Appellant does not mention our decisions in Wendell and Nichols,

presumably concluding they are inapplicable. Instead appellant relies upon cases which

make clear that R.C. 2907.37 requires that the record contains an explanation of

circumstances sufficient to support a conviction. The cases cited by appellant, save one,

do not involve cases in which an evidentiary hearing such as a motion to suppress are

part of the record. The sole exception is City of Columbus v. Gullett, 10th Dist. Franklin

No. 90AP-2, 1990 WL 98391, *3 in which the trial court relied upon the evidence provided

at a suppression hearing as part of its explanation of circumstances sufficient to find

defendant guilty.

       {¶18} None of the precedent cited by appellant stands for the proposition the trial

court is prohibited from relying upon findings it made at an evidentiary hearing and our

holdings in Wendell, supra and Nichols, supra support the contrary position. The findings

from that hearing, being part of the record, may be relied upon to find a defendant guilty

after entering a no contest plea. Such a process avoids a perfunctory finding of guilt, the

evil that the Supreme Court prohibited in Bowers, supra.

       {¶19} In the case at bar, the record contains clear evidence that appellant was

driving on the day of the offense. An eyewitness identified him to Deputy Lee as the driver

of vehicle that struck a concrete structure in the parking lot. Appellant’s speech,

movements and condition reflected indicia of intoxication and he performed poorly on his

field sobriety tests. He admitted to using the drug Suboxone.                Alprazolam and
Delaware County, Case No. 18 CAC 05 0036                                                9


Buprenorphine were detected in his urine. The facts provided at the suppression hearing

in combination with the facts provided by the prosecutor at the sentencing hearing are

sufficient to support a finding of guilt under the circumstances. The trial court did not arrive

at this finding perfunctorily. Consequently, the requirements of R.C. 2937.07 were met,

and the trial court did not err in finding appellant guilty following his no-contest plea. State

v. Kiefer, 1st Dist. Hamilton No. C-030205, 2004-Ohio-5054.

       {¶20} Appellant’s assignment of error is overruled and the decision of the

Delaware Municipal Court is affirmed.


By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
