[Cite as Toledo v. Williams, 2018-Ohio-1954.]




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


State of Ohio/City of Toledo                        Court of Appeals No. L-17-1120

        Appellee                                    Trial Court No. CRB-16-16810

v.

Brian Richard Williams                              DECISION AND JUDGMENT

        Appellant                                   Decided: May 18, 2018

                                                *****

        David Toska, City of Toledo Chief Prosecutor, and
        Henry Schaefer, Assistant Prosecutor, for appellee.

        Vijay K. Puligandla, for appellant.

                                                *****

        SINGER, J.

        {¶ 1} This case is before the court on the appeal of appellant, Brian Williams,

from the April 12, 2017 judgment of the Toledo Municipal Court. For the reasons that

follow, we reverse the judgment of the trial court and vacate appellant’s convictions.

        {¶ 2} Appellant sets forth three assignments of error:

                1. The trial court committed plain error at the initial appearance of

        the appellant by amending the charges of domestic violence to
      misdemeanors of the first degree from misdemeanors of the fourth degree,

      because the amendments changed the degree of the offenses and the penalty

      and therefore also changed the nature or identity of the charge.

             2. The trial court erred in the taking of the plea by finding appellant

      guilty beyond a reasonable doubt without having sufficient evidence to

      establish that the elements of the offenses were met, and without requiring

      an explanation of the circumstances from the appellee therefore violating

      appellant’s due process rights, requiring appellant’s conviction to be

      vacated.

             3. The trial court erred in imposing the maximum and consecutive

      sentences without taking into consideration the factors set out in R.C.

      2929.22(B)(1).

                                          Facts

      {¶ 3} On December 4, 2016, appellant was charged by complaint in Toledo

Municipal Court with two counts of domestic violence, fourth-degree misdemeanors.

Each count was charged in a separate complaint in case Nos. CRB-16-16810-0102 and

No. CRB-16-16810-0202.

      {¶ 4} On December 5, 2016, appellant appeared in court. Appellee, the city of

Toledo, requested that the second domestic violence charge be amended to an assault

charge, in violation of R.C. 2903.13(C)(1), and also requested that both charges be

amended from fourth-degree misdemeanors to first-degree misdemeanors. Appellant,




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who was represented by counsel, did not object. The trial court amended the charges as

requested. Appellant entered pleas of not guilty to the charges. In addition, appellant

consented to the issuance of a protection order.

       {¶ 5} On January 10, 2017, appellant was charged by complaint in case No.

CRB-17-00386-0101, in Toledo Municipal Court with violation of protection order,

pursuant to R.C. 2919.27(A)(1), a first-degree misdemeanor.

       {¶ 6} On February 1, 2017, the matter was called for trial, but appellant did not

appear. Bench warrants were issued.

       {¶ 7} Appellant was arrested on March 6, 2017, and appeared in court the next

day. Thereafter, case No. CRB-16-16810-0102 was consolidated with case Nos.

CRB-16-16810-0202 and CRB-17-00386-0101.

       {¶ 8} On March 22, 2017, the matter was again called for trial. Appellant entered

pleas of no contest to the domestic violence charge and the violation of protection order

charge. The trial court amended the domestic violence charge to an assault charge, in

violation of R.C. 2903.13, after finding a lack of the element of familial relationship. The

trial court then found appellant guilty of assault and guilty of violating the protection

order. The trial court dismissed the other assault charge.

       {¶ 9} Sentencing was held on April 12, 2017. Appellant spoke and expressed his

remorse. Appellant also stated he thought he had pled no contest to a first and fourth-

degree misdemeanor. The matter was discussed and appellant was informed by the court

that he pled to two first-degree misdemeanors. The trial court then noted appellant’s




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extensive criminal record as well as the heinous nature of the assault, and sentenced

appellant to 180 days of confinement on each charge, the maximum sentence, to be

served consecutively. Appellant appealed.

                               First Assignment of Error

       {¶ 10} Appellant contends the trial court committed plain error in permitting the

amendment of the complaint at appellant’s initial court appearance. Appellant argues

allowing the domestic violence charges to be amended from fourth-degree misdemeanors

to first-degree misdemeanors changed the degree of the offenses and the penalty, and

therefore changed the nature or identity of the charges. Appellant observes since his

defense counsel did not object to the request to amend the complaint, appellant waived all

but plain error.

       {¶ 11} Appellee countered, with respect to the first domestic violence charge, that

the complaint contained a “scrivener’s error” of classifying the offense as a fourth-degree

misdemeanor instead of a first-degree misdemeanor. Appellee asserted the amendment

of the complaint by the trial court changing the degree of the misdemeanor from a fourth

degree to a first-degree misdemeanor corrected an incorrect statement and did not change

the degree of the offense. Appellee insisted appellant was not prejudiced by the incorrect

statement, and appellant agreed to the amendment. With respect to the second domestic

violence charge, which was amended to an assault charge, appellee noted this charge was

dismissed in the plea deal.




4.
                                        Plain Error

       {¶ 12} Plain error is an obvious defect in the trial proceeding which affects

substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). With

a plain error analysis, the “appellate court must examine the error * * * in light of all the

evidence properly admitted at trial and determine whether the jury would have convicted

the defendant even if the error had not occurred.” State v. Slagle, 65 Ohio St.3d 597,

604, 605 N.E.2d 916 (1992).

                                         Crim.R. 3

       {¶ 13} Crim.R. 3 states:

              The complaint is a written statement of the essential facts

       constituting the offense charged. It shall also state the numerical

       designation of the applicable statute or ordinance. It shall be made upon

       oath before any person authorized by law to administer oaths.

                                         Crim.R. 7

       {¶ 14} Crim.R. 7(D) provides:

              The court may at any time before, during, or after a trial amend the

       indictment, information, complaint, or bill of particulars, in respect to any

       defect, imperfection, or omission in form or substance, or of any variance

       with the evidence, provided no change is made in the name or identity of

       the crime charged.




5.
       {¶ 15} “Crim.R. 7(D) does not permit the amendment of an indictment when the

amendment changes the penalty or degree of the charged offense; amending the

indictment to change the penalty or degree changes the identity of the offense.” State v.

Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus.

            First Domestic Violence Charge (Case No. CRB-16-16810-0102)

       {¶ 16} The record shows the original complaint charged appellant with domestic

violence, in violation of R.C. 2919.25, a fourth-degree misdemeanor. The complaint set

forth in relevant part that “the victim * * * stated the defendant attacked her, by hitting

her on her face, back and her head [and] he also hit her across her forehead with a belt

causing injuries to her forehead.”

       {¶ 17} R.C. 2919.25 states in relevant part:

              (A) No person shall knowingly cause or attempt to cause physical

       harm to a family or household member.

              (B) No person shall recklessly cause serious physical harm to a

       family or household member.

              (C) No person, by threat of force, shall knowingly cause a family or

       household member to believe that the offender will cause imminent

       physical harm to the family or household member.

              (D) (1) Whoever violates this section is guilty of domestic violence,

       and the court shall sentence the offender as provided in divisions (D)(2) to

       (6) of this section.




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              (2) Except as otherwise provided in divisions (D)(3) to (5) of this

       section, a violation of division (C) of this section is a misdemeanor of the

       fourth degree, and a violation of division (A) or (B) of this section is a

       misdemeanor of the first degree.

       {¶ 18} R.C. 2919.25 provides distinct offenses with different punishments. When

a statute sets forth varying offenses, Crim.R. 3 requires the complaint to set forth the

specific subsection under which the defendant is being charged. State v. Atwood, 61

Ohio App.3d 650, 654, 573 N.E.2d 739 (4th Dist.1990). See also State v. Newell, 6th

Dist. Erie No. E-08-064, 2009-Ohio-1816, ¶ 23.

       {¶ 19} Here, appellant was initially charged with a violation of R.C. 2919.25, a

fourth-degree misdemeanor, which was then amended to a first-degree misdemeanor

under the same statute. Although the amendment did not change the name of the offense,

the amendment did change the penalty or degree of the charged offense, and thus the

identity of the crime charged. Since Crim.R. 7(D) forbids such an amendment, we find

the trial court committed plain error in allowing the amendment.

           Second Domestic Violence Charge (Case No. CRB-16-16810-0202)

       {¶ 20} The record shows the original complaint charged appellant with domestic

violence, a fourth-degree misdemeanor. The charge was then amended to assault, in

violation of R.C. 2903.13, a first-degree misdemeanor. The amendment changed both the

name of the offense as well as identity of the crime charged; Crim.R. 7(D) forbids such




7.
an amendment. Thus, we find the trial court committed plain error in allowing the

amendment. However, the error is harmless since the charge was ultimately dismissed.

       {¶ 21} In light of the foregoing, appellant’s first assignment of error is well-taken.

                               Second Assignment of Error

       {¶ 22} Appellant argues his due process rights were violated when the trial court

accepted his no contest plea and found him guilty beyond a reasonable doubt as there was

no proof of the elements of the offenses. Appellant contends after entering his plea,

defense counsel waived the reading and call for an explanation of circumstances.

Appellant asserts that during the plea colloquy, the prosecutor did not make any

statement as to what the evidence would have shown if the case proceeded to trial, and

the complaint was not supplemented with additional information from the arresting

officer, who did not testify at the plea or sentencing hearing. Appellant cites to State v.

Arnold, 6th Dist. Lucas No. L-15-1292, 2017-Ohio-5674, in support of his position.

       {¶ 23} Appellee acknowledged the Arnold case, but suggested that counseled

pleas with language such as, “no contest, Your Honor, consent to finding, waive reading

of facts or explanation of circumstances” sufficiently waive the statutory rights conferred

by R.C. 2937.07.

       {¶ 24} Our resolution of the first assignment of error renders this assignment of

error moot as to the assault conviction. Thus, we will only address appellant’s conviction

for violating the protection order.




8.
       {¶ 25} R.C. 2937.07 provides in pertinent part:

              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.

       {¶ 26} In Arnold, the appellant was issued a traffic citation for speeding, two

counts of operating a vehicle under the influence (“OVI”), and a seat belt offense. Id. at

¶ 2. The appellant refused to submit to a breathalyzer test. Id. The complaint which

charged the appellant with the offenses did not contain any additional comments on the

back of the ticket and was marked as a refusal. Id. at ¶ 3. “There was no notation made

by the arresting officer to support his determination that appellant was operating a vehicle

under the influence.” Id.

       {¶ 27} The appellant ultimately entered a no contest plea to the first OVI charge

and “[d]efense counsel consented to a finding and waived the reading and call for an

explanation of circumstances.” Id. at ¶ 4. During the plea colloquy, the prosecutor did

not make a statement as to what the evidence would have shown if the case had




9.
proceeded to trial, nor did the prosecutor supplement the complaint with information

from the arresting officer. Id. The officer did not testify at the plea or sentencing

hearing. Id. The plea was accepted and the appellant was sentenced. Id.

       {¶ 28} The appellant appealed, contending, inter alia, that “the trial court limited

its determination of his guilt or innocence to a review of the complaint which contained

no information to assist in determining whether appellant operated a vehicle on the date

in question while under the influence of alcohol.” Id. at ¶ 8. We found:

              The record in this case is silent as to any proof of the elements of

       [OVI]. Further, the state does not dispute appellant’s assertions that the

       complaint contained no additional comments regarding appellant’s claimed

       violation of [OVI], that the arresting officer did not testify at either the plea

       or sentencing hearing, and that the trial court simply accepted the waiver of

       a reading of an explanation of circumstances.

              Based on the foregoing, this court finds that the trial court lacked

       sufficient evidence to find appellant guilty of the offense of [OVI]. Id. at

       ¶ 9-10.


       {¶ 29} Here, upon review, the complaint charging appellant with violating the

protection order contained a statement from the victim where she swore that appellant:

called her numerous times; was at her residence and left her a note; went to the victim’s

grandmother’s house when the victim was there; and, pulled up next to her vehicle and

stared at her. However, like in Arnold, the record is silent as to any proof of the elements



10.
of the charge. Moreover, there is nothing in the record which indicates that the trial court

reviewed or relied upon the complaint in finding appellant guilty of violating the

protection order. We therefore find the trial court lacked sufficient evidence to find

appellant guilty of violating the protection order, in violation of R.C. 2919.27(A)(1).

Accordingly, appellant’s second assignment of error is well-taken.

                               Third Assignment of Error

       {¶ 30} Appellant argues the trial court erred in imposing maximum and

consecutive sentences without taking into consideration the factors set out in R.C.

2929.22(B)(1). Our determination as to appellant’s first and second assignments of error

renders any arguments as to the correctness of maximum, consecutive sentences moot.

                                        Conclusion

       {¶ 31} The April 12, 2017 judgment of the Toledo Municipal Court is reversed

and appellant’s convictions for assault and violation of a protection order are vacated.

Pursuant to App.R. 12(B), we enter final judgment acquitting appellant of the offenses of

assault and violation of a protection order. Costs of this appeal are assessed to appellee

pursuant to App.R. 24.


                                                           Judgment reversed and vacated.




11.
                                                                      Toledo v. Williams
                                                                      C.A. No. L-17-1120




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, P.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.supremecourt.ohio.gov/ROD/docs/.




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