[Cite as Centerville v. Nagle, 2020-Ohio-2849.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

                                                       :
 CITY OF CENTERVILLE, OHIO                             :
                                                       :   Appellate Case No. 28639
         Plaintiff-Appellee                            :
                                                       :   Trial Court Case No. 2019-TRD-6080
 v.                                                    :
                                                       :   (Criminal Appeal from
 DANIEL A. NAGLE                                       :    Municipal Court)
                                                       :
         Defendant-Appellant                           :


                                                  ...........

                                                  OPINION

                               Rendered on the 8th day of May, 2020.

                                                  ...........

JOHN D. EVERETT, Atty. Reg. No. 0069911, City of Kettering Prosecutor’s Office,
Appellate Division, 2325 Wilmington Pike, Kettering, Ohio 45420
      Attorney for Plaintiff-Appellee

DANIEL A. NAGLE, 1171 Snowbell Way, Centerville, Ohio 45458
     Defendant-Appellant, Pro Se

                                              .............

FROELICH, J.
                                                                                             -2-




       {¶ 1} Daniel A. Nagle pled no contest in the Kettering Municipal Court to violating

Centerville City Ordinance 432.12 (starting and backing vehicles), a minor misdemeanor.

The trial court found Nagle guilty, imposed a suspended $25 fine, and ordered him to pay

court costs. Nagle appeals from his conviction, claiming that the trial court erred in

finding him guilty. For the following reasons, the trial court’s judgment will be affirmed.

                             I. Facts and Procedural History

       {¶ 2} The traffic ticket and the attached Citation Statement of Fact by Centerville

Police Officer Scott Thomas provide the following facts.

       {¶ 3} At 2:54 p.m. on November 4, 2019, Nagle was stopped behind another

vehicle at the intersection of Loop Road and Far Hills Avenue in Centerville. The other

vehicle moved forward in anticipation of making a right turn onto Far Hills. However,

upon concluding that she could not turn safely, the driver (whom the parties identify as

Maria Burkett) stopped her vehicle. Nagle, who had also started to move forward, struck

the back of Burkett’s vehicle at a speed of approximately 10 mph. No one was injured.

       {¶ 4} Officer Thomas completed a Traffic Crash Report, which he referenced in his

Citation Statement of Fact. However, the Traffic Crash Report, which included witness

statements by Nagle and Burkett, was not filed in the trial court with the traffic ticket.

       {¶ 5} Officer Thomas charged Nagle with violating Centerville City Ordinance

432.12, which provides, in relevant part: “No person shall start a vehicle which is stopped,

standing, or parked until the movement can be made with reasonable safety.”

Centerville City Ordinance 432.12(a)(1).       In general, a violation of Centerville City

Ordinance 432.12(a)(1) is a minor misdemeanor. Centerville City Ordinance 432.12(b).
                                                                                          -3-


The ticket summoned Nagle to appear on November 12, 2019, at 9:00 a.m. before the

Kettering Municipal Court.

       {¶ 6} Nagle appeared for arraignment, as required. Prior to the hearing, he also

filed a document titled “Supplemental Traffic Affidavit and/ [sic] Motion for Court to Find

Defendant ‘Not Guilty’ under 2937.07 O.R.C. No Contest Plea,” which argued that the

circumstances of the collision required a not guilty finding. Nagle raised that (1) Burkett’s

action of starting to move forward before it was safe for her to turn caused the accident,

(2) the sudden emergency doctrine applied, and (3) photographs of the scene

demonstrate that had Burkett stopped a few more inches forward, no collision would have

occurred. Nagle attached copies of numerous photos to his motion.1

       {¶ 7} At the November 12 hearing, the trial court informed Nagle of the charge, the

maximum possible penalty ($150 fine), that he did not have a constitutional right to an

appointed attorney but he could obtain an attorney if he wished, and that the prosecutor

would be required to prove its case beyond a reasonable doubt. After noting that Nagle

had filed a motion, which the clerk had considered to be a not guilty plea, the court asked

Nagle to confirm that he was pleading not guilty; Nagle responded that he was pleading

no contest.


1 Nagle’s motion also referenced the “affidavits” of Burkett and Nagle. The motion in the
record, however, includes only the copies of Nagle’s photographs as exhibits. The
Traffic Crash Report, including the witness statements of Nagle and Burkett, was attached
to Nagle’s Praecipe for Full Transcript and Record to Second District Court of Appeals,
which was filed on December 10, 2019, along with his notice of appeal. However, “[a]n
appellate court’s review in a direct appeal is limited to the materials in the record and the
facts and evidence presented to the trial court.” Yates v. Kanani, 2d Dist. Montgomery
No. 23492, 2010-Ohio-2631, ¶ 24. “A reviewing court cannot add matter to the record
before it, which was not a part of the trial court’s proceedings, and then decide the appeal
on the basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500
(1978), paragraph one of the syllabus.
                                                                                         -4-


       {¶ 8} The trial court explained the effect of a no contest plea. Nagle stated that

he understood and expressed that the facts “would not change one bit” if he went to trial.

The court told Nagle that it would not consider exhibits, such as his photographs, as part

of a no contest plea, and that he should plead not guilty if he wished to offer evidence.

When Nagle insisted that he wanted to continue with a no contest plea, the court briefly

recessed the hearing to allow a prosecutor to appear and present an explanation of

circumstances.

       {¶ 9} Upon recalling the case with the prosecutor present, the court again told

Nagle the charge and that he had the right to an attorney, to a trial, and to have his guilt

proven beyond a reasonable doubt. The court continued:

       * * * You have indicated to the Court that you wish to enter a no contest plea

       and as I have informed you, if you do enter a no contest plea you are telling

       the Court that you do not contest the truth of the facts alleged in the

       complaint. The Court is going to review the complaint. The Prosecutor

       will offer an explanation of the circumstances. If that information and that

       complaint is sufficient to establish the violation then the Court would be

       forced to enter a guilty finding. However that cannot be used against you

       in any ancillary proceeding arising out of this matter. Further on a no

       contest plea, the Court cannot take exhibits.      I understand that you’ve

       prepared a Motion but the issues, if there are any or the proof or the

       evidentiary value of those exhibits we would certainly consider at a trial but

       not here at a no contest plea when the Prosecutor does not and has not

       had an opportunity to talk to the witnesses on his side of the case. So we
                                                                                         -5-


       really have two choices. You may proceed if you like with the no contest

       plea or you may plead not guilty. We’ll set this case for a little bench trial.

       You’ll have an opportunity to present any photographs, any testimony that

       you would like the Court to consider. The Court then also [would] have the

       benefit of the testimony of the officer and any witnesses. I don’t know how

       it would come out. But I just, on a no contest plea today you’re basically

       conceding the facts alleged and I’m not going to get into taking evidence of,

       of any kind other than as the law requires taking an explanation of the

       circumstances from the Prosecutor. So how do you wish to proceed today

       sir?

Nagle responded that he wanted to plead no contest.

       {¶ 10} Nagle again asked the trial court to consider his brief. He argued that the

facts would not change at trial, that the court could make a finding of not guilty, and that

he wished to plead no contest to avoid the effect in any subsequent civil action of a guilty

finding at trial. In response, the prosecutor moved to strike Nagle’s brief, noting that the

trial court was not required to take an explanation of circumstances on a minor

misdemeanor charge and that the explanation of circumstances, when given, is provided

by the prosecutor.

       {¶ 11} The court told Nagle that, if he had a defense to the case, he would be best

served by proceeding to a trial. The court emphasized that, on a no contest plea, it would

look at the ticket and the facts it alleged. Nagle expressly stated that he did not want a

trial and that he was waiving the constitutional rights that he would have at a trial. When

asked if there was “anything that you want to say about the facts of the case,” Nagle
                                                                                         -6-


responded, “I think it’s already been said your Honor.”

       {¶ 12} The court asked the prosecutor to provide an explanation of circumstances.

The prosecutor stated:

       Your Honor, if this case had gone to trial the City of Centerville would have

       proved beyond a reasonable doubt that on November 4, 2019 at about 2:54

       p.m. at Loop Road and Far Hills in the City of Centerville, Montgomery

       County, State of Ohio that the Defendant in this case did, uh, start forward

       movement of his car from a stopped position and run into the back of

       another car; thus the State would prove beyond a reasonable doubt that he

       did start his car without safety and run into the back of the car. Thank you.

When asked if he had anything further, Nagle said that he did not, and he asserted that

the facts read by the prosecutor warranted a not guilty finding.

       {¶ 13} Based on “the no contest plea [and] the explanation of circumstances before

the Court,” the trial court found Nagle guilty. The court sentenced Nagle to a $25 fine,

which it suspended, and ordered him to pay court costs.            Nagle appeals from his

conviction.

                 II. Appeal from Minor Misdemeanor No Contest Plea

       {¶ 14} Nagle raises five assignments of error, which we will address together.

They state:

              The Trial Court, errored [sic] in finding the Defendant Guilty, under a

       No Contest Plea, by accepting the Prosecutor’s improper description of the

       FUTURE [capitalization sic] explanation of the circumstances of the case,

       as when it would be tried, if at all, in the future. This is not an explanation
                                                                                         -7-


      of the circumstances required to be before the Court, at 9:00 AM on

      November 12th Hearing.

             The Trial Court errored [sic] in finding the Defendant Guilty, under a

      No Contest Plea, in improperly accepting the Prosecutor’s explanation of

      the circumstances in this case utilizing merely statutory language, without a

      proper explanation of the factual circumstances mandated by the Statute.

             The Trial Court errored [sic] in finding the Defendant Guilty under a

      No Contest Plea by failing to hear, entertain or consider, in its determination,

      an explanation of factual circumstances as to Mrs. Burkett’s statement

      regarding her forward movement and her critical reason as to why she

      should abruptly stop her vehicle.

             The Trial Court errored [sic] in its determination of whether the

      Defendant is Guilty or not Guilty of the alleged offense in failing to hear,

      entertain, consider and not applying the Sudden Emergency Doctrine in

      view of Mrs. Burkett’s statement.

             The Trial Court errored [sic] in its determination of whether the

      Defendant is Guilty or Not Guilty under a No Contest Plea, by failing to

      consider the import of Officer Thomas[’s] very important explanation of

      circumstances,    regarding    the   Defendant’s     inability,   and,   sudden

      impossibility of stopping his car immediately prior to impact.

      {¶ 15} “A judge’s duty to a defendant before accepting his [or her] guilty or no

contest plea is graduated according to the seriousness of the crime with which the

defendant is charged.” State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d
                                                                                              -8-


635, ¶ 25.     Nagle pled no contest to violating Centerville’s starting and backing

ordinance, a minor misdemeanor. Nagle faced a maximum possible sentence of $150

and no jail time.    See R.C. 2929.28(A)(2)(a)(v).       Nagle’s offense thus was a “petty

offense,” which means “an offense for which the penalty prescribed by law includes

confinement for six months or less.” Traf.R. 2(D).

       {¶ 16} When a defendant enters a guilty or no contest plea to a traffic

misdemeanor case involving a petty offense, the plea is governed by Traf.R. 10(D), which

provides:

              In misdemeanor cases involving petty offenses, except those

       processed in a traffic violations bureau, 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.

              The counsel provisions of Criminal Rule 44(B), (C) and (D) apply to

       this subdivision.

Accord Crim.R. 11(E) (“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.”).

       {¶ 17} Traf.R. 10(B), which defines “the effect of guilty or no contest pleas,” states

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 complaint and such plea or admission shall not be

used against the defendant in any subsequent civil or criminal proceeding.” Traf.R.
                                                                                          -9-


10(B)(2); see also Crim.R. 11(B)(2), which is identical to Traf.R. 10(B)(2). The record

reflects that the trial court informed Nagle of the effect of a no contest plea.

       {¶ 18} Misdemeanor pleas are also governed by R.C. 2937.07.2 With respect to

no contest pleas, that statute reads:

       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 the offense to

       which the accused is entering a plea of “no contest” is a minor

       misdemeanor, the judge or magistrate is not required to call for an

       explanation of the circumstances of the offense, and the judge or magistrate

       may base a finding on the facts alleged in the complaint. 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.

(Emphasis added.)

       {¶ 19} In State v. Waddell, 71 Ohio St.3d 630, 646 N.E.2d 821 (1995), the Ohio

Supreme Court addressed whether, pursuant to R.C. 2937.07, a trial court was required


2 The Supreme Court of Ohio has held that “the provision in R.C. 2937.07 requiring an
explanation of circumstances following a plea of no contest [in a misdemeanor case] has
not been superseded by the enactment of Crim.R. 11 because the statutory provision
confers a substantive right.” Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151, 459
N.E.2d 532 (1984).
                                                                                       -10-


to consider a defendant’s statement before accepting a no contest plea to a misdemeanor

offense. The supreme court concluded that “R.C. 2937.07 requires that a court need

only consider the explanation of circumstances by the state before it passes judgment.

While a court may certainly consider a statement from the accused, it is not required to

do so.”   Id. at 631.   The court held that the trial court is required to consider the

defendant’s statement only where the plea is guilty. Id. at syllabus.

      {¶ 20} Here, R.C. 2937.07 did not require an explanation of circumstances for

Nagle’s minor misdemeanor traffic offense. Nevertheless, at the request of the court,

the prosecutor presented a brief explanation of the circumstances underlying the charge.

There was nothing improper in the prosecutor’s phrasing the explanation of

circumstances in terms of what the State would prove if the matter went to trial. The

prosecutor was simply stating what the traffic ticket and accompanying Citation Statement

of Fact alleged had happened and that the State would have proven those facts at trial.

      {¶ 21} The prosecutor’s explanation of circumstances also did not merely recite

the statutory language. The prosecutor’s statement provided the date, time and location

of the incident and indicated that Nagle moved his car forward from a stopped position

and ran into the back of another vehicle. The trial court was able to determine from those

facts whether Nagle had started his vehicle from a stopped position before he could do

so “with reasonable safety.”

      {¶ 22} Three of Nagle’s assignments of error focus on the trial court’s failure to

consider additional witness statements and whether Nagle’s action fell within the sudden

emergency doctrine.

      {¶ 23} “[U]nder Ohio law, a driver may, under circumstances, avoid a violation of
                                                                                          -11-


a traffic statute that regulates the operation of motor vehicles if the motorist can show that

something over which she had no control, or an emergency not of [his or] her own making,

made it impossible to comply with the statute’s requirements.” State v. Davis, 4th Dist.

Pickaway No. 04CA1, 2004-Ohio-5680, ¶ 15; see also, e.g., State v. Houston, 2018-Ohio-

2788, 114 N.E.3d 1236, ¶ 31 (7th Dist.); Oechsle v. Hart, 12 Ohio St.2d 29, 34, 231 N.E.2d

306 (1967). The claim of a sudden emergency is an affirmative defense. E.g., State v.

Heater, 9th Dist. Wayne No. 17AP0035, 2018-Ohio-4250, ¶ 8, citing Zehe v. Falkner, 26

Ohio St.2d 258, 271 N.E.2d 276 (1971), paragraph two of the syllabus.

       {¶ 24} “ ‘The essence of the “no contest” plea, is that the accused cannot be heard

in defense. Thus any statement by him must be considered as in mitigation of penalty.’ ”

(Citations omitted.) State ex rel. Stern v. Mascio, 75 Ohio St.3d 422, 424, 662 N.E.2d

370 (1996). As a result, while “the trial court retains discretion to consider a defendant’s

contention that the admitted facts do not constitute the charged offense, the defendant

who pleads no contest waives the right to present additional affirmative factual allegations

to prove that he is not guilty of the charged offense. * * * By pleading no contest, the

defendant waives his right to present an affirmative defense.” (Citations omitted.) Id.;

see also State v. Shutway, 2d Dist. Champaign No. 2014-CA-33, 2016-Ohio-431, ¶ 26.

       {¶ 25} Nagle argued in the trial court that his alleged violation of the ordinance

occurred because of Burkett’s driving. Specifically, he claimed that Burkett’s decision

that she could not turn safely, and thus her starting and stopping rather than completing

her turn, caused him to hit the rear of her vehicle. Nagle’s no contest plea waived this

argument. However, even if the argument were not waived by his no contest plea, we

found a similar argument unavailing in Riverside v. Kline, 2d Dist. Montgomery No. 15543,
                                                                                         -12-


1996 WL 303582 (June 7, 1996).

       {¶ 26} In that case, Kline was driving westbound in the left lane of State Route 35

approximately three vehicles behind Rosengarten, who was driving a large pickup truck.

After Rosengarten missed his exit, he turned on his left turn signal and slowed his truck

to turn into the median to turn around. When Rosengarten turned on his turn signal, the

two cars behind him, and in front of Kline, moved into the right lane. Rosengarten turned

into an unpaved, unmarked turnaround and stopped, waiting to turn onto eastbound

Route 35. Kline testified at his trial that Rosengarten stopped his truck “very abruptly

and apparently without cause” and that he did not see the truck’s brake lights or left turn

signal because the rear of the truck was covered with dirt. Unable to move into the right

lane because of other traffic, Kline decided to pass “the entire event” by driving in the

median. Kline collided with Rosengarten’s truck while Rosengarten was turning left.

Kline was found guilty after a trial of failure to maintain an assured clear distance ahead.

       {¶ 27} On appeal, Kline contended, in part, that Rosengarten’s driving created an

emergency situation and that he was authorized to occupy the median area to effect an

emergency stop. We rejected the argument, reasoning:

       A driver is under a duty to operate his vehicle so that he can bring it to a

       stop if the car immediately in front of him comes to a sudden stop. Cox v.

       Polster (1963), 174 Ohio St. 224, 226.       The only circumstances under

       which a driver’s compliance with the assured clear distance ahead statute

       may be excused are those which arise out of sudden emergencies which

       change the situation in which the driver finds himself, “but which do not arise

       by reason of his own failure or neglect to comply with the rule.” (Emphasis
                                                                                         -13-


       added.) Smiley v. Arrow Spring Bed Co. (1941), 138 Ohio St. 81, 88.

       Again, by Kline’s own testimony, the “emergency” which forced him to drive

       into the median was occasioned by his failure to comply with the ordinance.

       Thus, Rosengarten’s slowing, abruptly or not, did not create a sudden

       emergency that relieved Kline from complying with the ordinance.

Kline at * 4. We further emphasized that “principles of comparative negligence usually

play no role in the determination, in a criminal prosecution, of whether there has been an

assured clear distance ahead violation.” Id.

       {¶ 28} We recognize that Nagle was found guilty of violating a starting and backing

ordinance, not an assured clear distance ordinance. Nevertheless, under the ordinance

at issue, Nagle was under a duty to remain in a stopped position until he could move with

reasonable safety, which included the obligation that he have sufficient time to stop if the

vehicle ahead of him stopped. Even accepting the facts as Nagle presents them, the

only “emergency” which caused Nagle to rear-end Burkett’s vehicle was Burkett’s

decision to stop rather than complete a turn. Similar to Rosengarten’s driving in Kline,

Burkett’s stopping of her vehicle did not create a sudden emergency that relieved Nagle

from complying with the starting and backing ordinance.

       {¶ 29} Nagle’s assignments of error are overruled.

                                      III. Conclusion

       {¶ 30} The trial court’s judgment will be affirmed.

                                     .............



DONOVAN, J. and WELBAUM, J., concur.
                            -14-




Copies sent to:

John D. Everett
Daniel A. Nagle
Hon. Frederick W. Dressel
