[Cite as State v. Rhoads, 2011-Ohio-4744.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. Sheila G. Farmer, P.J.
   Plaintiff - Appellee                          Hon. John W. Wise, J.
                                                 Hon. Julie A. Edwards, J.
-vs-

LESLIE RHOADS                                    Case No. 11CAC010005

   Defendant - Appellant                         OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Municipal Court, Case
                                              Nos. 07TRD11391, 03CRB00275,
                                              03TRC02726, and 03CRB00265


JUDGMENT:                                      Judgment Vacated in Part & Remanded




DATE OF JUDGMENT:                              September 15, 2011




APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

PETER B. RUFFING                              BRIAN G. JONES
70 North Union Street                         2211 U.S. Highway 23 North
Delaware, OH 43015                            Delaware, OH 43015
Delaware County, Case No. 11CAC010005                                                     2


Farmer, P.J.

       {¶1}    In the summer of 2007, appellant, Leslie Rhoads, was charged with one

count of obstructing official business in violation of R.C. 2921.31, one count of failure to

reinstate her license in violation of R.C. 4510.21, and two counts of driving under

suspension in violation of R.C. 4510.037 and 4510.16. At the time, appellant was on

probation for cases from 2003 therefore, she was also charged with violating community

control. On December 27, 2010, appellant pled guilty to the failure to reinstate her

license count, and admitted to violating community control. The remaining charges

were dismissed.     By judgment entries filed same date, the trial court sentenced

appellant to an aggregate term of seventy days in jail.

       {¶2}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶3}    "THE GUILTY PLEA IN THE INSTANT CASE WAS NOT ENTERED INTO

KNOWINGLY."

                                             II

       {¶4}    "THE ADMISSION TO THE VIOLATION WAS NOT ENTERED INTO

KNOWINGLY."

                                             III

       {¶5}    "THE DEFENDANT WAS NOT AFFORDED EFFECTIVE ASSISTANCE

OF COUNSEL."
Delaware County, Case No. 11CAC010005                                                     3


                                             I

       {¶6}    Appellant claims her guilty plea to failure to reinstate her license was not

voluntarily or knowingly entered into because the Uniform Traffic Citation was

inaccurate. We disagree.

       {¶7}    Crim.R. 11 requires guilty pleas to be made knowingly, intelligently, and

voluntarily.   Subsection (E), which governs misdemeanor cases involving petty

offenses, states, "[i]n 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." As

explained by our brethren from the Seventh District in State v. Bailes, Mahoning App.

No. 01-CA-224, 2002-Ohio-5217, ¶10:

       {¶8}    "Although rigid adherence to Crim.R. 11 is preferred, a court need only

substantially comply with its requirements as long as the record reflects that under the

totality of the circumstances, the defendant knowingly, intelligently, and voluntarily

entered his plea by subjectively understanding the effect of the plea and his rights

waived.***A meaningful dialogue between the court and a defendant is required in

misdemeanor cases with a possibility of imprisonment. State v. Richard (1996), 113

Ohio App.3d 141, 144, 680 N.E.2d 667." (Citation omitted).

       {¶9}    The following discussion was held during appellant's plea:

       {¶10} "THE COURT: And the other thing, Mr. Ruffing [prosecutor], I think it will

be clear maybe for the record, here's what the ticket actually says. The noncompliance

suspension is listed - - they made that the C charge but they have under the complaint

4510.11. The failure to reinstate is the A charge which is under 16. And I know what's
Delaware County, Case No. 11CAC010005                                                      4


going to happen is the clerk will look at this and say, well, the 16's an unclassified

misdemeanor, though I think the failure to reinstate takes precedent over the numerical

designation.

       {¶11} "So if we - - if we can by agreement or I can do it here on my record,

amend this to - -

       {¶12} "MR. RUFFING: 4511.21? Well, my copy looks like it already did that but,

yes.

       {¶13} "THE COURT: Maybe there's an amendment in here that I haven't seen.

       {¶14} "MR. RUFFING: No, I mean, it looks like somebody overwrote it on the

ticket itself. Has the Court seen the ticket itself? It looks like they actually overwrote an

11 with a 2.

       {¶15} "THE COURT: It may be, although where they wrote the 2 is next to the

noncompliance suspension, it doesn't match. And where they wrote the 16, that was

next to the failure to reinstate, so those are flipped.

       {¶16} "MR. RUFFING: Well, we would move to amend as necessary, Your

Honor.

       {¶17} "THE COURT: So basically means that the A charge would be the failure

to reinstate which is a straight M1.

       {¶18} "MR. BURCHINAL [DEFENSE COUNSEL]: Your Honor, I can't read the

copy I got, so. . . That was our intent.

       {¶19} "THE COURT: Okay. So, Ms. Rhoads, you are then entering a guilty plea

to this charge of driving under suspension, correct?

       {¶20} "THE DEFENDANT: Yes. Yes, Your Honor.
Delaware County, Case No. 11CAC010005                                                  5


       {¶21} "THE COURT: Now Ms. Rhoads, do you understand that by doing so, that

you're giving up your right to a trial?

       {¶22} "THE DEFENDANT: Yes.

       {¶23} "THE COURT: This, I know this sounds like a little confusion here about

this driving under suspension charge. There are two of them. One's being dismissed

and one the plea is being entered into.

       {¶24} "But this is a violation of what's called 4510.21 which is a misdemeanor of

the first degree. It does carry up to 180 days in jail, up to a $1000 fine or both, and I

could suspend your license up to a year; so do you understand the penalty range?

       {¶25} "THE DEFENDANT: Yes, I do.

       {¶26} "THE COURT: The guilty plea that you're entering, that's a complete

admission of your guilt. If I accept the plea, I'm going to move forward with sentence

today; do you understand that?

       {¶27} "THE DEFENDANT: Yes." T. at 4-6.

       {¶28} As indicated, defense counsel indicated the intent was to plea to the "A"

charge which was failure to reinstate which was a straight M1. Appellant stated she

understood the nature of the charge and the consequences thereof. T. at 5-6. She

stated she was "ready to go on with my life." T. at 11.

       {¶29} Although there was confusion relative to the citation, it is clear from the

record that everyone understood that appellant was entering a guilty plea to the failure

to reinstate charge.

       {¶30} Upon review, we find appellant's plea was voluntarily and knowingly given.
Delaware County, Case No. 11CAC010005                                                    6


       {¶31} Assignment of Error I is denied.

                                            II

       {¶32} Appellant claims her admission to violating community control was not

knowingly entered into as the record is unclear as to the actual violations and that she

ever admitted to any violations. We agree in part.

       {¶33} Within the records of Case Nos. 03TRC02726, 03CRB00265, and

03CRB00275, is a "Notice of Probation Violation/Community Control" filed March 30,

2006. Warrants were issued for appellant and initial appearances were held as well as

pretrials on the violations.

       {¶34} During the guilty plea hearing, appellant's probation officer testified to

appellant being out of Ohio's jurisdiction without permission and failing to pay her public

defender fees, as well as the license issue discussed supra. T. at 16-17. It is clear

from the back and forth discussion between appellant and the trial court that appellant

understood the issue was failing to report to her probation officer. T. at 21-24. She

denied not reporting or being out-of-state.      T. at 21, 25.   The trial court imposed

probation violation sentences on appellant's failure to report and not her failure to pay

her public defender fees. T. at 25-26.

       {¶35} Upon review, we find appellant understood the nature of the probation

violations; however she never admitted to them, her trial counsel did:

       {¶36} "THE COURT: All right. We're here just going back and looking at the

original sentencing entries, we are here on final Community Control violation hearing

today, correct, Mr. Burchinal?

       {¶37} "MR. BURCHINAL: Correct, Your Honor.
Delaware County, Case No. 11CAC010005                                                      7


       {¶38} "THE COURT: And how does the Defendant wish to proceed?

       {¶39} "MR. BURCHINAL: Your Honor, at this time we would admit the violation

and just ask to be heard in mitigation.

       {¶40} "THE COURT: All right, very good." T. at 13-14.

       {¶41} We find defense counsel's admission to violating community control on

behalf of appellant was inadequate given appellant's denials to the alleged violations.

       {¶42} Assignment of Error II is granted in part.

                                              III

       {¶43} Appellant claims she was denied the effective assistance of trial counsel

as her counsel did not explain the amended traffic charge to her. We disagree.

       {¶44} The standard this issue must be measured against is set out in State v.

Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari

denied (1990), 497 U.S. 1011. Appellant must establish the following:

       {¶45} "2. Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of

reasonable    representation    and,   in   addition,   prejudice   arises   from   counsel's

performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;

Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,

followed.)

       {¶46} "3. To show that a defendant has been prejudiced by counsel's deficient

performance, the defendant must prove that there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different."
Delaware County, Case No. 11CAC010005                                              8


       {¶47} We find the record does not demonstrate that appellant misunderstood the

charge. See, Assignment of Error I. Further, there is no evidence in the record of

defense counsel's failure to inform appellant of the nature of the charges.

       {¶48} Assignment of Error III is denied.

       {¶49} The judgment of the Municipal Court of Delaware County, Ohio is hereby

vacated in part and the matter is remanded to said court for further proceedings

consistent with this opinion.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                             _s/ Sheila G. Farmer__________________



                                             _s/ John W. Wise_____________________



                                             __s/ Julie A. Edwards_________________

                                                            JUDGES


SGF/sg 824
[Cite as State v. Rhoads, 2011-Ohio-4744.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :
                                              :
        Plaintiff-Appellee                    :
                                              :
-vs-                                          :       JUDGMENT ENTRY
                                              :
LESLIE RHOADS                                 :
                                              :
        Defendant-Appellant                   :       CASE NO. 11CAC010005




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Delaware County, Ohio is vacated in part, and the

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to be divided equally between appellant and appellee.




                                              _s/ Sheila G. Farmer__________________



                                              _s/ John W. Wise_____________________



                                              __s/ Julie A. Edwards_________________

                                                          JUDGES
