[Cite as State v. Taylor, 2012-Ohio-5130.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 13-12-25

        v.

SUSAN M. TAYLOR,                                        OPINION

        DEFENDANT-APPELLANT.




                          Appeal from Fostoria Municipal Court
                              Trial Court No. TRD1101708

                       Judgment Reversed and Cause Remanded

                           Date of Decision: November 5, 2012




APPEARANCES:

        Beryl W. Stewart for Appellant

        Timothy J. Hoover for Appellee
Case No. 13-12-25


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Susan M. Taylor (“Taylor”), appeals the

judgment of the Fostoria Municipal Court finding her guilty of wrongful

entrustment after she entered a plea of no contest. On appeal, Taylor contends that

the trial court erred in not permitting her to withdraw her no contest plea because

she claims that the trial court failed to properly inform her of her rights pursuant to

Crim.R. 11.    For the reasons set forth below, the judgment is reversed and

remanded.

       {¶2} Taylor was issued a uniform traffic citation for the wrongful

entrustment of a motor vehicle in violation of R.C. 4511.203, a misdemeanor of

the first degree. The charge stems from an accident that occurred on September 1,

2011, when Taylor’s fifteen-year-old son, who was not a licensed driver, was

driving three friends in the back of Taylor’s pick-up truck. The truck was struck

by a train, causing the death of one of the passengers, and injuring the other two.

       {¶3} Taylor originally entered a plea of not guilty, and the case was set for

a bench trial on March 28, 2012. Prior to beginning the proceedings, there was a

discussion between the trial court, Taylor’s attorney, and the prosecutor about

what version of the statute and penalty was applicable. (3/28/2011 Tr. 4-7). The

offense had been committed on September 1, 2011, and R.C. 4511.203 had been

amended effective September 23, 2011. Under the former version of the statute,


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effective September 30, 2008, the offense was a first-degree misdemeanor,

punishable by up to six months in jail and a fine of up to $1,000. Under the

amended statute, the offense is an unclassified misdemeanor, and the offender is to

be sentenced pursuant to R.C. 2929.21 to 2929.28, “except that the offender shall

not be sentenced to a jail term * * *.” R.C. 4511.203(C)(1). A recess was taken

while a discussion was held off the record in chambers. (3/28/2011 Tr. 7)

        {¶4} Upon the continuation of the proceedings, Taylor’s attorney requested

a short recess to discuss possible settlement with the prosecutor. Thereafter, the

trial court was informed that Taylor wished to change her plea to “no contest.”

(Id.)

        {¶5} Prior to accepting the change of plea, the trial court inquired to

ascertain whether Taylor understood that the offense was a misdemeanor of the

first degree, as specified by the statute that was in effect on September 1st.

(3/28/12 Tr. 8-9) The trial court confirmed that Taylor understood that by entering

a plea of no contest, she could be found guilty of the offense and sentenced to up

to six months in jail and/or a fine of up to $1,000. (Id.) The trial court also

confirmed that Taylor’s prior request for a jury had been withdrawn. (Id.)

        {¶6} Taylor’s attorney then entered a plea of no contest on her behalf and

the trial court made a finding of guilty. The trial court ordered a presentence

report and scheduled the sentencing hearing for May 8, 2012.


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       {¶7} On April 27, 2012, Taylor filed a presentence motion to withdraw her

no contest plea pursuant to Crim.R. 32.1, and also submitted a trial brief. The

motion stated that Taylor was distraught when she learned that “the charge now is

a 1st [degree] misdemeanor” and subject to a possible six months in jail. (Doc. 25,

¶ 4) Taylor was concerned as to who would take care of her children if she was

sentenced to jail, and decided to enter a plea of no contest, hoping that the trial

court would not sentence her to jail. After having more time to think about the

matter and discuss it further with her attorney, she now believed that the facts and

the law would result in a finding of not guilty if a trial was held.

       {¶8} On the date of the previously scheduled sentencing hearing, the trial

court held a hearing on the motion to withdraw the plea. Taylor stated that she

wished to withdraw her plea because, at the time of the hearing, she was stressed

and worried about her children and was not thinking clearly. (5/8/2012 Tr. 2-3)

Her attorney also argued that new facts and research had also led him to believe

that she would be found innocent of the offense because her son’s actions had

exceeded the scope of the permission that Taylor had given him, specifically, to

drive only on their property. The State opposed the motion to withdraw and

argued that a change of heart or a mistaken belief about a guilty plea did not

constitute a basis for the withdrawal of a plea.




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           {¶9} The trial court denied Taylor’s motion to withdraw her plea, finding

that her reason was a “mere change of heart,” which was insufficient grounds to

warrant a vacation of her plea. (May 8, 2012 J.E.) The trial court determined that

Taylor was satisfied with the representation of her defense counsel; that she had

been thoroughly informed as to the possible penalties associated with her plea;

and, that she had knowingly, intelligently, and voluntarily understood her plea and

the consequences of the plea. (Id.)

           {¶10} On May 15, 2012 a sentencing hearing was held, and “[b]ased upon

the nature of the case, defendant’s history and the circumstances,” the trial court

sentenced Taylor to serve 180 days, with 90 days to be served at the Seneca

County jail; 60 days through Electronic Home Monitoring (if eligible); and 30

days suspended on the condition that Taylor complete an alcohol assessment and

treatment program, that she complete a parenting program, and that she submit to

random alcohol/drug screens as ordered by probation.                (May 15, 2012 J.E.)1

Taylor was placed on three years’ probation and ordered to pay all costs, but no

fine was imposed.

           {¶11} Taylor filed a motion to stay sentence pending appeal, which was

granted by the trial court.                Taylor now appeals her conviction, raising the

following assignment of error for our review.



1
    No transcript of the sentencing hearing was provided.

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Case No. 13-12-25


                                Assignment of Error

       The trial court erred in failing to advise [Taylor] of any of her
       rights, i.e., the right to see the witnesses against her, her right to
       have the witnesses cross-examined at trial, that she also had the
       right not to be required to testify at trial unless she desired to do
       so, and that the State cannot comment on her failure to testify as
       required by Ohio Crim.R. 11(E).

       {¶12} In her sole assignment of error, Taylor submits that the trial court

erred in denying her motion to withdraw her plea of no contest. Taylor asserts that

the trial court failed to conduct a proper Crim.R. 11 colloquy to inform her of her

rights prior to accepting her plea.

       {¶13} Crim.R. 32.1 states that: “A motion to withdraw a plea of guilty or

no contest may be made only before sentence is imposed; but to correct manifest

injustice the court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.” Although the rule does not

articulate a standard to be used when considering a presentence motion, as the

motion in this case was, it has long been held that a presentence motion to

withdraw a guilty plea “should be freely and liberally granted.” State v. Xie, 62

Ohio St.3d 521 (1992). However, this does not mean that a motion to withdraw a

guilty plea will be granted automatically. State v. Drake, 73 Ohio App.3d 640, 645

(8th Dist.1991). Appellate review of a trial court’s denial of a motion to withdraw

guilty pleas pursuant to Crim.R. 32.1 is for an abuse of discretion. State v.

Nathan, 99 Ohio App.3d 722, 725 (3d Dist.1995).

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       {¶14} On appeal, Taylor complains that she should be allowed to withdraw

her no contest plea because the trial court failed to inform her of her constitutional

rights during the plea colloquy.      Crim.R. 11 distinguishes between what is

required before accepting a plea of guilty and no contest in felony cases as

compared to misdemeanor cases, such as Taylor’s. See State v. Jones, 116 Ohio

St.3d 211, 2007-Ohio-6093; compare Crim.R. 11(C) with Crim.R. 11(D) and (E).

While the elements that must be included in a plea colloquy for a misdemeanor are

less than what is required for a felony, the trial court must still inform the

defendant of the effect of the specific plea being entered and it must inform the

defendant of the appropriate language under Crim.R. 11(B). Jones at paragraphs

one and two of the syllabus. A failure to comply with providing information

concerning non-constitutional rights, such as the information required in Crim.R.

11(B), will not invalidate a plea unless the defendant suffered prejudice. Jones at

¶ 52, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12.

       {¶15} Our review of the record demonstrates that the trial court failed to

properly advise Taylor of the effects of her plea, although not for the reasons

discussed by either Taylor or the State. The trial court was mistaken when it

informed Taylor that she should be sentenced under the prior version of the statute

that provided for up to a six-month jail sentence.        Taylor should have been

permitted to withdraw her plea, because she was given the wrong information


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concerning her sentence. Furthermore, the sentence must be vacated because it is

contrary to law. See R.C. 2953.08(A)(4).

        {¶16} Generally, the amendment or enactment of a statute will apply

prospectively, and will not affect the prior operation of the statute or “[a]ffect any

violation thereof or penalty, forfeiture, or punishment incurred in respect thereto,

prior to the amendment or repeal.” R.C. 1.58(A); State v. Riegel, 3d Dist. Nos. 14-

11-27, 14-11-28, 2012-Ohio-4517, ¶ 16. However, there is an exception to this

proposition stated in R.C. 1.58(A) when the provision set forth in Section (B) is

applicable. R.C. 1.58(B) states:

        If the penalty, forfeiture, or punishment for any offense is reduced
        by a reenactment or amendment of a statute, the penalty, forfeiture,
        or punishment, if not already imposed, shall be imposed according to
        the statute as amended.

        {¶17} In this case, the offense in the statute remains the same. However,

the amendment reduces the potential punishment by stating that a violation is now

an unclassified misdemeanor, not a misdemeanor of the first degree,2 and that the

offender is not subject to a jail sentence.

        (C) Whoever violates this section is guilty of wrongful entrustment
        of a motor vehicle and shall be punished as provided in divisions (C)
        to (H) of this section.

        (1) Except as provided in division (C)(2) of this section, whoever
        violates division (A)(1), (2), or (3) of this section is guilty of an

2
  R.C. 4511.203(C)(2) does specify certain circumstances, such as multiple repeat offenses, wherein the
offense remains a first degree misdemeanor. However, the record does not indicate that Taylor was subject
to any of those provisions.

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Case No. 13-12-25


       unclassified misdemeanor. When the offense is an unclassified
       misdemeanor, the offender shall be sentenced pursuant to sections
       2929.21 to 2929.28 of the Revised Code, except that the offender
       shall not be sentenced to a jail term; the offender shall not be
       sentenced to a community residential sanction pursuant to section
       2929.26 of the Revised Code; notwithstanding division (A)(2)(a) of
       section 2929.28 of the Revised Code, the offender may be fined up
       to one thousand dollars; * * *.

(Emphasis added.) R.C. 4511.203.

       {¶18} Because the earlier version of the statute provided for the imposition

of up to a six-month jail sentence, the punishment was reduced by the amendment

of the statute. Both the acceptance of her plea and the sentencing occurred after

the effective date of the amendment.          Therefore, Taylor should have been

sentenced subject to the lesser sentence imposed by the amended statute, pursuant

to the requirements of R.C. 1.58(B). Appellant’s assignment of error is sustained.

       {¶19} Having found error prejudicial to the Appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

SHAW, P.J. and PRESTON, J., concur.

/jlr




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