[Cite as State v. Robinson, 2018-Ohio-1427.]




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

STATE OF OHIO                                       :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 27280
                                                    :
 v.                                                 :   T.C. NO. 2016-TRC-2221-A
                                                    :
 DESTIN D. ROBINSON                                 :   (Criminal Appeal from
                                                    :   Municipal Court)
         Defendant-Appellant                        :
                                                ...........

                                               OPINION

                             Rendered on the 13th day of April, 2018.

                                                ...........

JOE CLOUD, Atty. Reg. No. 40301, 3973 Dayton-Xenia Road, Dayton, Ohio 45432-2632
     Attorney for Plaintiff-Appellee


JOHN PINARD, Atty. Reg. No. 85567, 120 W. Second Street, Suite 603, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} This matter is before the Court on the September 13, 2016 Notice of Appeal

of Destin D. Robinson. Robinson appeals from his conviction and sentence, following a

guilty plea, on an amended charge of having physical control of a vehicle while under the
                                                                                          -2-


influence (“physical control”), in violation of R.C. 4511.194(B)(1), a misdemeanor of the

first degree. Counsel for Robinson originally filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly

examining the record and the law, no meritorious issues existed for appeal. On August

8, 2017, this Court set aside counsel’s Anders brief and appointed new counsel to act as

Robinson’s advocate on appeal, and appointed counsel’s brief is now before us.

       {¶ 2} The events giving rise to this matter began on March 11, 2016, when

Robinson was stopped by the Ohio State Highway Patrol for an alleged traffic violation.

Robinson was subsequently arrested for operating a vehicle under the influence, in

violation of R.C. 4511.19(A)(1)(a). Robinson pled not guilty on March 18, 2016, and on

May 4, 2016, he filed a motion to suppress. A hearing on the motion was scheduled for

June 30, 2016.     The Transcript of Docket Entries reflects that on June 20, 2016,

Robinson withdrew his motion to suppress, although a written withdrawal is not in the

record. The Transcript of Docket Entries reflects that a “Disposition” was set for August

16, 2016. On that date, Robinson pled guilty to the amended charge of physical control.

       {¶ 3} The file before us contains correspondence, dated August 31, 2016,

addressed to “The Honorable Judge Cynthia M. Heck.” The correspondence bears a

time stamp of September 9, 2016, although it is not reflected in the Transcript of Docket

Entries. The correspondence provides as follows:

              Dear Judge Heck:

              I am writing to you to request a Motion to Withdrawal my plea in case

       # TRC160221A on 8/16/2016. Your Honor, I was totally confused and

       under complete duress. My attorney, Charles Rowland, was not up front
                                                                                      -3-


with me about several things prior to my plea before you: 1) when I met with

him in his office to view the trooper’s video, he told me that the video does

not uphold the trooper’s original report, and that I had done everything right

and the trooper did not have legal grounds to stop me. He told me that he

had never seen anything like this and not to worry that this was all about

how far you’re willing to take it, and that I would not owe him any additional

fee. 2) He was not forth coming as to what the plea would entail. He told

me that if I pled guilty, I would get my license back that same day with no

other penalties, but if I went to trial, I would get a trial tax if I lost the case

with additional jail time; and that I would lose my license for two years. He

told me I had to make a decision right then because if I wanted to go to trial,

the trial would be scheduled the following week. 3) He then asked me, are

you going to pay me (after previously telling me I would not owe him) if we

go to trial because nobody wants to work for free, and most attornies [sic]

will not take on a case after a second pre-trial.

       Your Honor, prior to the Hearing on August 16, 2016, I had a Motion

to Suppress Hearing that was originally scheduled for June 30th 2016 at

9:45 am in which I was never granted admission into your courtroom. Mr.

Rowland arrived roughly around 10 am. I was taken into room # 204 where

my attorney said he had a deal for me to plead to. Nothing was explained

other than “physical control.” Mr. Rowland told me that the guy overseeing

my case was a guy he used to work with who I now know to be Mr. David

Caldwell. Mr. Rowland said that Mr. Caldwell agreed with us that I should
                                                                                  -4-


not have been stopped; and that there was nothing there, but he had to

charge me with something because if not the officer would lose his arrest

and that could signal to law enforcement that you’re not willing to work with

them; and that he counts on them to send him cases; I have been there as

a prosecutor and it can be an uncomfortable position to be in. I told my

attorney that I didn’t agree with that and he said that’s just the way it is. I

asked Mr. Rowland how long I have to decide. He stated as long as you

like.

        Around July 6[,] 2016, I met & spoke with Mr. Rowland for the last

time before the hearing on August 16, 2016. I asked Mr. Rowland how

come I didn’t have a standard Motion to Suppress like his office and website

had described. Mr. Rowland responded saying why show them what we’re

up to before trial. I ask[ed] him if he could just talk to the judge about the

case and what really happened. Mr. Rowland said she’s not going to care

what you have to say; the judge is not on your side.

        Approximately a week later, I received a letter stating a Disposition

Hearing was scheduled for August 16th, 2016. I mistakenly thought this

“Disposition Hearing” was a Deposition Hearing. Upon arrival I was taken

into room #204 where I felt railroaded, distraught, and even angered for

reasons mentioned above and I was told that I had to make a decision at

that moment. I never knew the extent of what I pled to until I got home and

made an internet search.       I later returned to the clerk’s desk to ask

questions about my records. That’s when I was told that my original Motion
                                                                                      -5-


       to Suppress Hearing had been withdrawn on June 30th 2016 which was

       news to me. Attorney Rowland never mentioned to me that he withdrew

       the original Motion to Suppress, and I never gave him permission to do so.

              In summation Your Honor, I am humbly asking you to accept my

       Motion to Withdraw my Plea due to inadequate representation and the

       pressure I was experiencing to make a decision based on the information

       given to me. Additionally, I never gave permission to withdraw the original

       Motion to Suppress; and I was not admitted entry inside your courtroom on

       June 30, 2016.

       {¶ 4} On August 16, 2016, the trial court journalized Robinson’s guilty plea and

sentenced him to one year of probation, 180 days in jail (177 days suspended), and a six

month license suspension. The Court ordered Robinson to pay $225.00 in court costs

and a fine of $250.00 (with $50.00 suspended). Robinson’s notice of appeal provides

the following probable issues for review: “Motion to suppress hearing never granted,

ineffective assistant to counsel [sic].   Motion to suppress hearing withdrawn without

knowledge or permission.”

       {¶ 5} Robinson asserts three assignments of error herein. His first assignment of

error is as follows:

              THE TRIAL COURT FAILED TO PROPERLY INFORM APPELLANT

       OF THE EFFECT OF HIS GUILTY PLEA IN COMPLIANCE WITH OHIO

       CRIMINAL RULE 11.

       {¶ 6} Robinson argues as follows:

              * * * At no point in the record does the Judge indicate to Appellant
                                                                                             -6-


       his plea of guilty is a complete admission of guilt. In fact, Appellant never

       formally states he is guilty, though it can be inferred that was his intent. As

       the trial court has failed to comply with Ohio Criminal Rule 11, this case

       involves an invalid plea. As such, the plea should be ordered withdrawn

       and the case reversed and remanded to the trial court.

       {¶ 7} The State responds that the Ohio Traffic Rules, and not Crim.R. 11, apply

herein. The State asserts that Robinson’s claim that he “never entered a guilty plea is

also erroneous.” The State asserts as follows:

              * * * The Trial Court informed the Defendant of the effect of his guilty

       plea by: insuring his right to a jury trial * * *; the nature of the charge and the

       maximum penalty * * *; that the plea was being made knowingly and

       voluntarily * * *; that he was assured of the advice of legal counsel * * *; and

       finally, that he would have the opportunity to personally address the Court

       in mitigation * * *.

       {¶ 8} “ ‘Traffic case’ means any proceeding, other than a proceeding resulting from

a felony indictment, that involves one or more violations of a law, ordinance, or regulation

governing the operation and use of vehicles * * *.” Traf. R. 2(A). Traffic cases are

governed by the Ohio Traffic Rules.           Crim.R. 1(C); Traf.R. 1(A).      A conviction for

physical control in violation of R.C. 4511.194 carries a criminal penalty of six months or

less in jail. R.C. 2929.24(A)(1). Under Traf.R. 2(D), a “petty offense” is defined as “an

offense for which the penalty prescribed by law includes confinement for six months or

less.” Physical control is a petty offense.

       {¶ 9} The trial court’s acceptance of Robinson’s guilty plea was governed by
                                                                                         -7-


Traf.R. 10, which provides in relevant part:

              ***

              (B) Effect of Guilty or No Contest Pleas. With reference to the offense

       or offenses to which the plea is entered:

              (1) The plea of guilty is a complete admission of the defendant's guilt.

              ***

              (D) Misdemeanor Cases Involving Petty Offenses. 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 * * *. This information may be presented by general

       orientation or pronouncement.

       {¶ 10} As this Court has previously noted (footnote omitted):

              In State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d

       635, the Ohio Supreme Court clarified that in order to meet Traf.R. 10(D)'s

       requirement of “informing the defendant of the effect of the plea,” the trial

       court need only inform the defendant of the information contained in Traf.R.

       10(B). Watkins, supra; see State v. Darden, 2d Dist. Greene No. 2005 CA

       109, 2006-Ohio-2908, ¶ 16. The Supreme Court stated that “[a] judge's duty

       to a defendant before accepting his guilty or no contest plea is graduated

       according to the seriousness of the crime with which the defendant is

       charged.” Watkins at ¶ 25. It held that, “in all cases, the judge must inform

       the defendant of the effect of his plea.” Id. at ¶ 26. The Supreme Court
                                                                                        -8-


       observed that trial courts have additional requirements under Crim.R. 11 for

       felony cases and misdemeanor cases involving serious offenses. However,

       the Watkins court noted that there are no “constitutionally mandated

       informational requirements for defendants charged with misdemeanors,”

       and thus “the protections that the Criminal Rules provide to felony

       defendants should not be read into the Ohio Traffic Rules, which deal only

       with misdemeanor offenses.” Id. at ¶ 28. The Supreme Court held that

       “where a defendant charged with a petty misdemeanor traffic offense pleads

       guilty or no contest, the trial court complies with Traf.R. 10(D) by informing

       the defendant of the information contained in Traf.R. 10(B).” Id.

State v. Mullett, 2013-Ohio-3041, 995 N.E.2d 924, ¶ 13 (2d Dist.).

       {¶ 11} In State v. Craaybeek, 2d Dist. Greene No. 2004-CA-39, 2005-Ohio-437,

Lisa Craaybeck argued that her suspension for driving while under suspension “should

be set aside because the trial court failed to tell her that her guilty plea was a complete

admission of her guilt as required by Traf.R. 10(D).” Id., ¶ 2. This Court determined as

follows:

              Recently the Ohio Supreme Court held that a defendant who has

       entered a guilty plea without asserting actual innocence is presumed to

       understand that he has completely admitted his guilt.                In such

       circumstances, a court’s failure to inform the defendant of the effect of his

       guilty plea as required by Crim.R. 11 is presumed not to be prejudicial.

       State v. Griggs, 103 Ohio St.3d 85, 87, 814 N.E.2d 51, 2004-Ohio-4415.

       Justice O’Connor wrote as follows:
                                                                                       -9-


                “The right to be informed that a guilty plea is a complete admission

       of guilt is nonconstitutional and therefore is subject to review under a

       standard of substantial compliance. State v. Nero, 56 Ohio St.3d at 107,

       564 N.E.2d 474. Though failure to adequately inform a defendant of his

       constitutional rights would invalidate a guilty plea under a presumption that

       it was entered involuntarily and unknowingly, failure to comply with

       nonconstitutional rights will not invalidate a plea unless the defendant

       thereby suffered prejudice. [Id.] at 108, 564 N.E.2d 474. The test for

       prejudice is ‘whether the plea would have otherwise been made.’ [Id.]

       Under the substantial-compliance standard, we review the totality of

       circumstances surrounding Griggs’ plea and determine whether he

       subjectively understood that a guilty plea is a complete admission of guilt.”

Id., ¶ 14-15.

       {¶ 12} Robinson’s reliance upon Crim.R. 11 is misplaced, and having reviewed

the record, we conclude that there was substantial compliance with Traf.R. 10(D) herein

as well. The record reflects that the following exchange occurred at Robinson’s plea

hearing:

                JUDGE: Good morning. Alright, how are you going to proceed

       with Mr. Robinson?

                MR. ROWLAND: Your Honor, at this time we’d respectfully request

       leave of the court to withdraw our previously entered plea of Not Guilty and

       enter a plea to the amended charge of 4511.194, that being Physical

       Control. I have advised my client of the rights he’s giving up by going
                                                                                  -10-


forward. He knows that there will be no Jury Trial in this matter and he

does waive his right to a Jury Trial. At this time we respectfully enter a plea

of Guilty to the charge.

       JUDGE: Is there a Jury Demand on this case?

       MR. ROWLAND: There was a Jury Demand, yes. Let me just . . .

       JUDGE: Because we need that waived in writing as well.

       MR. ROWLAND: What, what’s going to happen is because you

have a right to a Jury Trial it’s so important you have to waive it in writing,

that’s what this document is going to say, okay? If I may approach, Your

Honor.

       JUDGE: Actually, we, we don’t have a request for Jury Trial, but I

still want him to waive it in writing, because I’m not going through the entire

file to make sure someone simply forgot to put in on the back.

       MR. ROWLAND: Your Honor, if I may approach, please let the

record reflect that the Jury Waiver has been executed in open Court.

       ***

       JUDGE: * * * Alright, Mr. Robinson, let’s talk about your plea for just

a moment. A Physical Control is still a first degree misdemeanor, that

means that it can carry as much as $1,000.00 fine and six months in jail,

and knowing [what] the maximum charge carries did you still want to enter

a Guilty plea and accept the plea offer?

       MR. ROWLAND: You’re not going to get that, but she has to inform

you of the maximums, so she has to . . .
                                                                                 -11-


       JUDGE: Did you hear me okay, do you know what I said?

       MR. ROBINSON: Yes.

       JUDGE: * * * Is that your understanding, you’re accepting the offer

of Physical Control?

       MR. ROBINSON: Yes.

       JUDGE: Okay, and did you want to then give up your right to have

a Trial, either a Bench Trial to the Court or Jury Trial of your peers, either

one? Are you okay?

       MR. ROBINSON: Yes.

       JUDGE: Alright, what’s going on?

       MR. ROBINSON: I’m alright.

       JUDGE: What?

       MR. ROBINSON: I’m alright.

       JUDGE: Okay.

       MR. ROBINSON: May I have one, one second?

       JUDGE: You want a second?

       MR. ROBINSON: Yes.

       MR. ROWLAND: Yeah, so what, I, I work for you buddy, you tell me

what you want, I’ll do it. Now this would be before her, it’s what we talked

about before, it’s what we talked about many times. This is what you want

to do? This is literally your last chance to tell me this is not what you want

to do and, if we can go forward that’s what everybody’s here to do today, is

to go forward and get this over with.
                                                                                -12-


        JUDGE: Did you understand that when you told me you wanted to

accept the offer of Physical Control, we’re not going to set the case for a

Trial, right, because you’ve accepted the plea offer. I just want to make

sure that it’s [a] knowing, voluntary plea. That’s my job to make sure that

this is what you want to do. And once you tell me that you want to accept

the plea off . . . offer then I’m going to give you a chance to speak in your

own behalf, anything in mitigation of your sentence, anything you want to

tell me about the matter. That’s how this works.      I’m not trying to scare

you right now. I’m making sure it’s a knowing voluntary plea, nobody’s

twisted your arm, this is something that you want to do. Are you thinking,

worried about the sentence, is that what’s bothering you?

        MR. ROBINSON: I’m thinking a few different things.

        JUDGE: A few different things?

        MR. ROBINSON: Yes.

        JUDGE: I’ve pretty much explained to your lawyer it’d be a three

day program, a fine, a license suspension, which you would have gotten

anyway because you refused. That’s . . .

        MR. ROBINSON: I still get a license suspension?

        MR. ROWLAND: Yes, you do.

        JUDGE:    When you refuse the test.         You’d have a refusal

suspension anyway. You were told that when you signed the, the form with

the . . .

        MR. ROWLAND: Your Honor, at this time we would ask that it be
                                                                                   -13-


set for Trial before the, do you want a Jury Trial or do you want a Trial before

the Court?

        MR. ROBINSON: That has to be done today?

        MR. ROWLAND: You have to decide right now what you want.

        JUDGE: Well, you’ve got to remember then you’re talking about it’s

back to an OVI and then that’s a whole different set of penalties, alright, if

you do that. I’m just trying to make you think about it. Do you want a

chance to speak with your client?

        MR. ROWLAND: I, I would, Your Honor. I, and I, I think that we’ve

talked about this before, but I’ll have the, a chance, if you don’t mind, while

the other . . .

        JUDGE: Yes.

        MR. ROWLAND: . . . case is going on?

        JUDGE: He needs to understand that by operation of law when he

refused the test regardless.

        MR. ROWLAND: We under . . . we’ve gone over that but we’ll go

over it again.

        JUDGE: Okay.

        MR. ROWLAND: Mr. Robinson, come out with me.

                     (OFF RECORD)

        BAILIFF: Your Honor, we’re back on record now on State versus

Robinson, Mr. Rowland’s representing.

        JUDGE: Okay, where are we now, Mr. Robinson?
                                                                                       -14-


              MR. ROBINSON: Physical control.

              JUDGE: Your lawyer’s done a really good job for you. I’m not quite

       sure what this is all about, but we’re going to move forward and that’s what

       you want to do, you want to accept the plea bargain?

              MR. ROBINSON: Yes.

              JUDGE: I’m going to find that you’ve knowingly waived your rights,

       make a finding of guilt and accept your Guilty plea. * * *

       {¶ 13} It is clear that Robinson executed a jury waiver in open court.          He

ultimately indicated that he wanted to accept the plea bargain, namely to enter a plea of

guilty to physical control in exchange for the dismissal of the O.V.I. charge. The court

addressed the amended charge and its penalties, and Robinson was afforded additional

time to confer with counsel. The court advised him that in the event he chose to plead not

guilty, he would proceed to trial on the O.V.I. offense. We conclude that prejudice is not

shown due the court’s failure to advise Robinson that his guilty plea is a complete

admission of guilt, and Robinson’s first assignment of error is overruled.

       {¶ 14} Robinson’s second assignment of error is as follows:

              THE TRIAL COURT FAILED TO INQUIRE WHETHER AN

       APPELLANT PROCLAIMING HIS INNOCENCE WAS MAKING A

       RATIONAL DECISION TO ENTER A GUILTY PLEA.

       {¶ 15} Robinson directs our attention to State v. Dunnier, 2d Dist. Montgomery No.

21762, 2007-Ohio-4891, which noted that in “the case of North Carolina v. Alford (1970),

400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, the United States Supreme Court held that a

plea of guilty may be accepted by a trial court despite a defendant’s protestations of
                                                                                         -15-

innocence.” Id., ¶ 23. This Court further noted in Dunnier as follows:

              In the case where a defendant protests innocence but nevertheless

       is willing to plead guilty, the trial court “must determine that the defendant

       has made a rational calculation to plead guilty notwithstanding his belief that

       he is innocent.” State v. Padgett (1990), 67 Ohio App.3d 332, 338, 586

       N.E.2d 1194. The accomplishment of this task requires a trial court at a

       minimum, to make an “inquiry of the defendant concerning his reasons for

       deciding to plead guilty notwithstanding his protestations of innocence; it

       may require, in addition, inquiry concerning the state’s evidence in order to

       determine that the likelihood of the defendant’s being convicted of offenses

       of equal or greater magnitude than the offenses to which he is pleading

       guilty is great enough to warrant an intelligent decision to plead guilty.” Id.

       at 338-39.

Id., ¶ 26.

       {¶ 16} Robinson argues as follows:

              Appellant specifically indicates he was not drinking on the night in

       question. Thus, he denies an essential element of the charge. No inquiry

       was made into his reasoning for entering a guilty plea notwithstanding his

       protestations of innocence. Furthermore, no inquiry was made into the

       state’s evidence to determine the likelihood of his conviction as required by

       Dunnier and Padgett. As such, the plea should be ordered withdrawn and

       the case remanded to the trial court.

       {¶ 17} The record reflects that after the court accepted Robinson’s guilty plea as
                                                                                            -16-


set forth above, the following exchange occurred:

               ***

               JUDGE: * * * And do you think there’s a drinking problem that needs

      addressed?

               MR. ROBINSON: Absolutely not.

               JUDGE: Okay, any kind of drug problem?

               MR. ROBINSON: No, no ma’am.

               ***

               JUDGE:     Anything else you want to tell me about this night in

      question, where had you been or you don’t have to tell me anything if you

      don’t want to.

               MR. ROBINSON: The night in question?

               JUDGE: This night here, on March 11. Only tell me the truth or

      just . . .

               MR. ROWLAND: This is the colloquial, she’s trying to get an idea

      of who you are so she can fashion a remedy. You tell her the truth. This

      is, this is what we do now, yes. You, if you want to talk to her . . .

               JUDGE: I always call it, I’ve already said it once, this is reality court.

               MR. ROWLAND: Yes.

               JUDGE: People make mistakes. This does not mean that you’re

      a bad person that you’re in front of me. I don’t make that kind of judgment

      at all. Very good people make mistakes in judgment every day.

               MR. ROBINSON: I was coming from getting something to eat, on
                                                                                  -17-


my way home and he pulled me over.

        JUDGE: Okay. Okay, it’s going to be a $200.00 fine, Court costs,

one (1) year probation, a hundred and eighty days (180) days, suspending

all but three (3) and I’m going to give you option of three (3) days jail or an

alcohol education program, a hundred and seventy-seven (177) days

suspended on the condition no drug or alcohol related offenses for the next

year.   Six-month license suspension backdated to March 11 of 2016.

Looks like you’re otherwise valid except for the suspension, this ALS

suspension, correct? I’ll go ahead and terminate that ALS suspension, six

(6) months, you’ve got a little bit left on your suspension. You need to drive

where, work?

        MR. ROBINSON: And school.

        ***

        JUDGE: Where do you go to school, you didn’t tell me about that.

        MR. ROBINSON: Downtown, Sinclair.

        JUDGE: What are you taking there?

        MR. ROBINSON: Information Systems.

        JUDGE:    Information Systems, okay.      Do you think you have a

drinking problem that needs addressed? I saw the break you got three (3)

years ago, as well as the Diversion Program.

        MR. ROBINSON: Ma’am, truthfully I didn’t drink that night.

        JUDGE: He smelled an odor of alcohol strong on your breath.

        MR. ROBINSON: Ma’am, I did not drink that night. Video doesn’t
                                                                                        -18-


       match the Statement of the Facts. I’ll go to my grave with that.

              JUDGE: What?

              MR. ROBINSON: I will go to my grave with that.

              JUDGE: Okay, that’s all, thank you.

       {¶ 18} We conclude that Robinson’s reliance on Dunnier is misplaced.           The

defendant in Dunnier advised the court that he intended to enter an Alford plea to the

indicted charges, and he pled guilty to four counts of gross sexual imposition in exchange

for the State not going forward with securing a new indictment for rape, pursuant to which

he would face life in prison. Id., ¶ 2. Robinson protested his consumption of alcohol

after the court accepted his guilty plea and after the court imposed sentence. The Traffic

Rules require no pre-plea factual inquiry by the court, and as the State asserts, “the case

law cited by Appellant under the Second Assignment of Error can be distinguished since

they apply to felony cases and Ohio Crim.R. 11 instead of traffic cases.” Accordingly,

Robinson’s second assignment of error is overruled.

       {¶ 19} Robinson’s third assignment of error is as follows:

              THE TRIAL COURT MUST MAKE A RULING ON A MOTION TO

       WITHDRAW A GUILTY PLEA PRIOR TO AN ENTRY CERTIFYING THE

       SENTENCE.

       {¶ 20} Robinson asserts that this “assignment of error is moot as the plea was

invalid and needs to be withdrawn. However, the Court needed to make a ruling on the

motion to withdraw the plea prior to certifying the sentence.”

       {¶ 21} The State responds that Robinson’s “third assignment of error must fail

because no Motion to Withdraw was ever received or filed with the Trial Court.
                                                                                      -19-


Therefore, no ruling was required.” According to the State, Robinson’s correspondence

bearing a time stamp of September 9, 2016 “is simply a letter dated August 31, 2016

addressed to the Honorable Judge Cynthia M. Heck stating, ‘I am writing you to request

a Motion to Withdrawal my plea’ * * *.” The State asserts that “[t]his statement requests

that the Court file a Motion to Withdraw on the Defendant’s behalf.         It has been

mischaracterized as a Motion to Withdraw a Plea.” The State argues that Robinson was

represented by Attorney Rowland, “and for obvious reasons the Court could not file a

Motion on the Defendant’s behalf.” The State asserts as follows:

             This document was submitted post sentencing, does not conform to

      any recognizable pleading form, was personally addressed to Judge Heck,

      contained no Certificate of Service to the Prosecutor’s Office, reflects no

      evidentially sound manifest miscarriage of justice, and was followed three

      days later with a hand written request for a Notice of Appeal. In addition,

      the last paragraph of this document states, “In summation Your Honor, I am

      humbly asking you to accept my Motion to Withdraw my Plea due to

      inadequate representation and the pressure I was experiencing to make a

      decision based on the information given to me.”

             Again, this sentence permits a reasonable interpretation that a

      Motion to Withdraw was to be attached, or included with the

      correspondence. It was not. And, the trial court was in no position to

      provide legal advice to the Defendant. It can be reasonably concluded that

      the Defendant decided not to file a Motion to Withdraw, and instead filed a

      Notice of Appeal three days later. Should this Honorable Court construe
                                                                                          -20-


       this letter to be a Motion to Withdraw a plea, neither the Prosecutor’s Office,

       nor the Trial Court were provided adequate time to respond. The letter was

       filed on September 9, 2016 which was a Friday. The letter was then

       supplanted by a Notice of Appeal filed September 13, 2016, which was the

       following Tuesday. That timeline makes no accounting for any notice and

       response time for the State of Ohio Prosecutor. A fair and just conclusion

       can be made for a tacit withdrawal of the letter’s disguised request.

       {¶ 22} The Traffic Rules do not include a rule governing the service of motions.

Traf.R. 20 provides that if “no procedure is specifically prescribed by these rules, the

Rules of Criminal Procedure and the applicable law apply.” Crim.R. 49(A) provides that

“* * * written motions other than those heard ex parte * * * shall be served upon each of

the parties.”   Crim.R. 49(C) provides that “[p]apers filed with the court shall not be

considered until proof of service is endorsed thereon or separately filed. The proof of

service shall state the date and the manner of service and shall be signed and filed in the

manner provided in Civil Rule 5(D).” Robinson failed to properly serve his “motion to

withdraw his plea,” thus the jurisdiction of the trial court was not properly invoked, and the

court was precluded from ruling upon the motion. In other words, the motion was a

nullity. Accordingly, Robinson’s third assignment of error is overruled.

       {¶ 23} Having overruled Robinson’s three assignments of error, the judgment of

the trial court is affirmed.

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


WELBAUM, P.J. and TUCKER, J., concur.
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Copies mailed to:

Joe Cloud
John Pinard
Hon. Cynthia M. Heck
