[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Girard v. Giordano, Slip Opinion No. 2018-Ohio-5024.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2018-OHIO-5024
          THE CITY OF GIRARD, APPELLANT, v. GIORDANO, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as Girard v. Giordano, Slip Opinion No. 2018-Ohio-5024.]
R.C. 2937.07—Double-jeopardy principles not violated by a second attempt at
        conviction following a reversal of a conviction for a court’s failure to
        comply with R.C. 2937.07’s explanation-of-circumstances requirement.
   (No. 2017-1069—Submitted June 13, 2018—Decided December 18, 2018.)
              APPEAL from the Court of Appeals for Trumbull County,
                         No. 2016-T-0071, 2017-Ohio-5647.
                                  ________________
        DEWINE, J.
        {¶ 1} An Ohio statute provides that a no-contest plea to a misdemeanor
charge “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.” R.C. 2937.07.
John Giordano pleaded no contest to a charge of cruelty to animals for beating his
                              SUPREME COURT OF OHIO




dog. The trial court accepted the plea and found Giordano guilty but neglected to
ask for an explanation of the circumstances. Because there was no explanation of
the circumstances, the court of appeals reversed Giordano’s conviction and
discharged him from further prosecution. The question before us relates to the
discharge from prosecution: Does the Double Jeopardy Clause bar Giordano’s
retrial? We say no.
                                 I. Background
       {¶ 2} The basis of the charge against Giordano was a criminal complaint
sworn to by John Norman, a city of Girard police captain. It alleged as follows:


       [O]n or about February 16, 2016, one JOHN GIORDANO In the
       City of Girard, County of Trumbull, State of Ohio did: [recklessly]
       torture an animal, deprive one of necessary sustenance,
       unnecessarily or cruelly beat, needlessly mutilate or kill, or impound
       or confine an animal without supplying it during such confinement
       with a sufficient quantity of good wholesome food and water. TO
       WIT:
               Did knee his rottweiler to the ground then hit the dog with a
       closed fist 5 times.
               In violation of Section 959.13(A)(1) of the Ohio Revised
       Code.


(Brackets, capitalization, underlining, and boldface sic.) The state filed various
exhibits with the complaint, including a police report, a report by the Animal
Welfare League of Trumbull County, witness statements, photographs, and a video
showing Giordano hitting his rottweiler.
       {¶ 3} Giordano initially pleaded not guilty to the charge. But before trial,
he withdrew his not-guilty plea and entered a plea of no contest—a plea that




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                                January Term, 2018




constitutes “an admission of the truth of the facts alleged in the * * * complaint.”
Crim.R. 11(B)(2).     He signed a written plea agreement, “stipulating to the
underlying facts contained in [the] complaint.” In exchange, the state agreed to
stand silent at sentencing. The trial court accepted Giordano’s no-contest plea,
found him guilty, and referred the matter for a presentence investigation. At
sentencing, after conversing with Giordano about the incident, the trial court
imposed a suspended jail sentence and a fine and ordered that the dog be forfeited
to the Animal Welfare League.
       {¶ 4} Giordano appealed, arguing that the trial court erred by failing to
obtain an explanation of circumstances before finding him guilty. He relied on R.C.
2937.07, which 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.” The court of
appeals agreed and reversed his conviction. And reasoning that the reversal for
failure to obtain an explanation of circumstances was a reversal based on
insufficient evidence, the court concluded that jeopardy had attached and barred
further proceedings against Giordano. We accepted the state’s discretionary appeal
on the double-jeopardy issue.
                                    II. Analysis
       {¶ 5} The question before us boils down to this: Is the constitutional
guarantee that one not be placed twice in jeopardy violated by a second attempt at
conviction following a reversal of a conviction for a failure to comply with the
statutory explanation-of-circumstances requirement? To answer the question, we
must consider two things: the constitutional prohibition against double jeopardy
and the significance of a trial court’s failure to comply with the explanation-of-
circumstances requirement. We start with the protection against double jeopardy.




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                             SUPREME COURT OF OHIO




                    A. The Protection Against Double Jeopardy
          {¶ 6} Among the protections of the Fifth Amendment to the United States
Constitution is that no person “be subject for the same offence to be twice put in
jeopardy of life or limb.” The Ohio Constitution contains a similarly worded
guarantee: “No person shall be twice put in jeopardy for the same offense.” Ohio
Constitution, Article I, Section 10. In finding a double-jeopardy violation, the court
of appeals did not specify whether it was relying upon the double-jeopardy
provision of the Ohio or federal Constitution. Giordano has presented arguments
under only the federal constitution. In the past, we have held the two guarantees to
be “coextensive.” State v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435
(1996).     Because Giordano has not presented an argument under the Ohio
constitution, we have no opportunity to revisit that determination today.
          {¶ 7} Both provisions are rooted in protections afforded by English
common law. See Hurley v. State, 6 Ohio 399, 402 (1834); Sigler, A History of
Double Jeopardy, 7 Am.J.Legal Hist. 283 (1963). They are based upon “the three
common-law pleas of autrefois acquit, autrefois convict, and pardon,” which
“prevented the retrial of a person who had previously been acquitted, convicted, or
pardoned for the same offense.” (Italics deleted.) United States v. Scott, 437 U.S.
82, 87, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).
          {¶ 8} We have read the double-jeopardy provisions as protecting against
three distinct wrongs: “(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.” Gustafson at 432, citing United States v.
Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). The protection
at issue in this case is the first: the bar against a second prosecution for the same
offense following an acquittal.
          {¶ 9} Historically, the common-law protection against double jeopardy
applied only when a jury had rendered a verdict. See Smith v. Massachusetts, 543




                                          4
                                 January Term, 2018




U.S. 462, 466, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005). The protection has been
extended, however, well beyond its common-law origins. See id. at 467; Crist v.
Bretz, 437 U.S. 28, 34-35, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). The double-
jeopardy principle now covers not only acquittals by a jury but also acquittals by a
judge that are akin to a jury verdict. See Smith v. Massachusetts at 467. Thus, a
ruling by a trial judge that the evidence presented by the state is “insufficient to
establish criminal liability for an offense” amounts to an acquittal and bars retrial.
Evans v. Michigan, 568 U.S. 313, 318-319, 133 S.Ct. 1069, 185 L.Ed.2d 124
(2013).
          {¶ 10} The protection has been extended further to prevent retrial after an
appellate court determines that the evidence presented at trial was insufficient to
convict. The “ordinar[y]” rule is that the double-jeopardy guarantee “does not
prevent the government from retrying a defendant who succeeds in getting his first
conviction set aside, through direct appeal or collateral attack, because of some
error in the proceedings leading to conviction.” Lockhart v. Nelson, 488 U.S. 33,
38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988). But when an appellate court reverses
for insufficiency of the evidence, the Double Jeopardy Clause bars retrial. Id. at
39; State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 18.
The rationale is that “[b]ecause the Double Jeopardy Clause affords the defendant
who obtains a judgment of acquittal at the trial level absolute immunity from further
prosecution for the same offense, it ought to do the same for the defendant who
obtains an appellate determination that the trial court should have entered a
judgment of acquittal.” (Emphasis sic.) Lockhart at 39.
          {¶ 11} In contrast, when an appellate court’s reversal is based on “trial
error”—for example, an erroneous admission of evidence—the Double Jeopardy
Clause does not bar retrial. Lockhart at 40; Brewer at ¶ 18. This is because, unlike
a finding that the government failed to affirmatively prove its case, a reversal based
on trial error simply means that the defendant “has been convicted through a




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judicial process which is defective in some fundamental respect.” Brewer at ¶ 18,
quoting Lockhart at 40 (cleaned up).
       {¶ 12} Thus, the question for us is whether the Eleventh District’s reversal
of Giordano’s conviction constituted a reversal for insufficiency of the evidence or
whether it was more akin to a reversal for trial error. To answer that question, we
turn to the statutory requirement that a trial court obtain an explanation of
circumstances prior to making a guilty finding on a no-contest plea.
               B. The Explanation-of-Circumstances Requirement
       {¶ 13} R.C. 2937.07 sets forth the procedure for taking a no-contest plea in
a misdemeanor case: “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.” The statute further
provides that no explanation of circumstances is required for a plea of no contest to
a minor misdemeanor. Id. Crim.R. 11 reiterates that “[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.”
       {¶ 14} The statute invites an obvious question: If a no-contest plea
constitutes an admission to the facts alleged in the complaint, why must the court
consider an explanation of circumstances before finding a defendant guilty? If the
facts to which the defendant has admitted constitute sufficient evidence for a
finding of guilt, should not that be enough?
       {¶ 15} The answer is that the explanation-of-circumstances requirement
exists to provide an extra layer of procedural protection to the defendant. We
considered an earlier version of R.C. 2937.07 in Cuyahoga Falls v. Bowers, 9 Ohio
St.3d 148, 459 N.E.2d 532 (1984). The question in that case was whether Crim.R.
11 had superseded the statute. Id. at 149. At the time, R.C. 2937.07 provided: “ ‘If
the plea be “no contest” or words of similar import in pleading to a misdemeanor,




                                         6
                                    January Term, 2018




it shall constitute a stipulation that the judge * * * may make a finding of guilty or
not guilty from the explanation of circumstances * * *.’ ” Bowers at 150, quoting
former R.C. 2937.07, Am.Sub.S.B. No. 73, 128 Ohio Laws 97, 104-105. Crim.R.
11(B)(2) provided (and still provides): “The 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 * * *.” Concluding that “R.C. 2937.07
confers a substantive right,” the court determined that the statute was not
superseded by Crim.R. 11 and therefore held that “a no contest plea may not be the
basis for a finding of guilty without an explanation of circumstances.” Bowers at
150. Turning to the facts of the case, which involved a charge of driving while
intoxicated, the court considered whether the requirement of an explanation of
circumstances was satisfied by the documentary evidence in the record—a
chemical-breath-test report, the arresting officer’s report, and the accident report.
Id. Because there was no indication that the trial court had considered those
documents or that an explanation of circumstances had been provided, we
concluded that the guilty finding had to be vacated. Id. at 151.
        {¶ 16} We said nothing in Bowers about whether double-jeopardy
protections would bar retrial of the defendant. Rather, we remanded the case to the
trial court with no indication that the defendant should be discharged from
prosecution. Id. And nothing in Bowers speaks to the question whether a reversal
for failure to obtain an explanation of circumstances is equivalent to a reversal for
insufficiency of evidence. Subsequent to Bowers, however, a number of appellate
districts have concluded that a reversal of a conviction for failure to comply with
R.C. 2937.07 causes jeopardy to attach and precludes the state from retrying the
matter.1 In doing so, these courts, like the court of appeals in this case, have


1
 See State v. Stewart, 2d Dist. Montgomery No. 19971, 2004-Ohio-3103; State v. Smyers, 5th Dist.
Muskingum No. CT 2004-0039, 2005-Ohio-2912; State v. Fordenwalt, 9th Dist. Wayne No.
09CA0021, 2010-Ohio-2810; State v. Horvath, 2015-Ohio-4729, 49 N.E.3d 847 (3d Dist.); State v.




                                               7
                               SUPREME COURT OF OHIO




assumed that a reversal for failure to comply with the explanation-of-circumstances
requirement is equivalent to an acquittal based on insufficiency of the evidence.
We disagree.
        {¶ 17} The courts that have found a double-jeopardy bar have focused on
the explanation-of-circumstances requirement and have ignored the importance of
the fact that the defendant pleaded no contest. But as both Crim.R. 11 and the
current version of R.C. 2937.07 make clear, a plea of no contest is an admission by
the defendant to the facts alleged in the complaint. In the ordinary case—that is,
when the complaint properly alleges the elements of a crime—such an admission
provides sufficient evidence for a conviction. After all, when a defendant has
admitted all the facts that constitute a crime, there necessarily is sufficient evidence
for a conviction.
        {¶ 18} The explanation-of-circumstances requirement does, however,
provide a degree of protection for the defendant. In essence, it allows a judge to
find a defendant not guilty or refuse to accept his plea when the uncontested facts
do not rise to the level of a criminal violation. Bailey v. Broadview Hts., 721
F.Supp.2d 653, 658 (N.D.Ohio 2010), aff’d 674 F.3d 499 (6th Cir.2012), citing
Micale v. Boston Hts., 113 F.3d 1235 (6th Cir.1997). The case of Springdale v.
Hubbard, 52 Ohio App.2d 255, 369 N.E.2d 808 (1st Dist.1977), provides an
example of the manner in which the explanation-of-circumstances requirement may
protect a defendant even though he has admitted the allegations of the complaint.
There, the complaint provided that the defendant “ ‘did recklessly cause annoyance
to another by making an offensively course [sic] utterance contrary to and in
violation of Section 648.04(A) of the Springdale Codified Ordinances.’ ” Id. at
256. In order to ensure compliance with the First Amendment, the court of appeals
construed the ordinance to prescribe only speech that constituted fighting words.

Lloyd, 2016-Ohio-331, 58 N.E.3d 520 (6th Dist.); Berea v. Moorer, 2016-Ohio-3452, 55 N.E.3d
1186 (8th Dist.).




                                            8
                                 January Term, 2018




Id. at 260. The court reviewed the statements made by the defendant as recounted
in the explanation of circumstances and concluded that the defendant’s statement
did amount to fighting words, and thus upheld the conviction. Id. Presumably, had
the explanation of circumstances revealed that the defendant did not use fighting
words, the court would have reversed the conviction and discharged him from
further prosecution due to insufficiency of the evidence.
         {¶ 19} That the explanation-of-circumstances requirement is a procedural
protection, rather than a part of the prosecution’s burden of proof, is also evidenced
by the fact that no such requirement exists in felony cases. In a felony case in which
the “indictment, information, or complaint contains sufficient allegations to state a
felony offense and the defendant pleads no contest, the court must find the
defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d 582, 692
N.E.2d 1013 (1998), syllabus. If an explanation of circumstances were necessary
to establish the elements of the crime, the need for such a requirement would be
even greater in felony cases—where the stakes are higher—than in misdemeanor
cases.
         {¶ 20} Thus, the explanation-of-circumstances requirement is best
understood as providing a level of procedural protection to the defendant. It allows
the court to find a defendant not guilty when the facts of the case do not rise to the
level of a criminal violation.
         C. Application of Double-Jeopardy Protections to the Present Case
         {¶ 21} We return to the question with which we started: Would retrial of
Giordano violate principles of double jeopardy? To answer the question, we must
determine whether the reversal of Giordano’s conviction is tantamount to a reversal
based upon insufficiency of evidence. The obvious answer is no. Go back to the
complaint.     When Giordano entered his no-contest plea, he admitted to the
complaint’s allegation that he had “unnecessarily or cruelly beat” his animal by
“knee[ing] his rottweiler to the ground then hit[ting] the dog with a closed fist 5




                                          9
                             SUPREME COURT OF OHIO




times.” In entering his plea, he admitted in open court to committing the essential
elements of the crime for which he was charged. By neglecting to ask for an
explanation of circumstances, the trial court failed to provide the defendant the
procedural protection accorded by statute. But the trial court’s error does not equate
to a finding that there was insufficient evidence to convict.
        {¶ 22} As further illustration of why the trial court’s failure to call for an
explanation-of-circumstances does not create a sufficiency problem, imagine for a
second that the trial judge in this case had called for an explanation of
circumstances. The requirement could have been met by Captain John Norman,
the police officer who swore out the complaint, simply reciting the allegations of
the complaint—the exact facts that Giordano had already admitted to in pleading
no contest. Or the prosecutor could have read the complaint word for word.
(Indeed, the error that occurred in this case can easily be avoided if the prosecution
ensures an explanation is provided even if the court neglects to call for one.) Had
either occurred, the explanation-of-circumstances requirement would have been
satisfied. Yet the evidence against him would have been exactly the same as it was
here.
        {¶ 23} Our conclusion that there is no double-jeopardy problem here is
consistent with the principle that has allowed the double-jeopardy protection to be
extended from its original conception as applying only to an acquittal by a jury to
applying to certain reversals by the courts of appeals. That is, a defendant who
obtains a reversal based upon an appellate determination that the evidence is
insufficient to convict ought to receive the same protection as a defendant who
receives the same determination at the trial-court level. Lockhart, 488 U.S. at 39,
109 S.Ct. 285, 102 L.Ed.2d 265. The court of appeals’ determination here was not
that there was insufficient evidence of Giordano’s crime but that the trial court erred
in accepting Giordano’s plea without affording him the protection of the
explanation-of-circumstances requirement.         In other words, Giordano was




                                          10
                                  January Term, 2018




“convicted through a judicial process which [was] defective in some fundamental
respect.” Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, at ¶ 18
(cleaned up). Because the error related to a defect in procedure, rather than the
sufficiency of the evidence, the Double Jeopardy Clause does not bar Giordano’s
retrial.
                                    III. Conclusion
           {¶ 24} The Double Jeopardy Clause applies to bar retrial when an appellate
court reverses a conviction based on insufficiency of the evidence. The reversal of
Giordano’s conviction was not based on insufficiency of the evidence but rather on
a procedural error. Thus, the double-jeopardy protection does not bar his retrial.
The decision of the court of appeals to discharge Giordano from further prosecution
is reversed, and this case is remanded to the trial court for further proceedings
consistent with this opinion.
                                                                  Judgment reversed
                                                                and cause remanded.
           O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, FISCHER, and
DEGENARO, JJ., concur.
                                 _________________
           Michael E. Bloom, for appellant.
           Michael A. Partlow, for appellee.
           Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Public Defender, urging affirmance for amicus curiae, Ohio Public
Defender.
                                 _________________




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