[Cite as Cleveland v. Mayfield, 2014-Ohio-3712.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100494



                                CITY OF CLEVELAND
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                              TYRONE M. MAYFIELD
                                                         DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2013 CRB 026149

        BEFORE: Boyle, A.J., Rocco, J., and McCormack, J.

        RELEASED AND JOURNALIZED: August 28, 2014
ATTORNEY FOR APPELLANT

Gregory T. Stralka
6509 Brecksville Road
P.O. Box 31776
Independence, Ohio 44131


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Aric Kinast
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} Defendant-appellant, Tyrone Mayfield, appeals his conviction for attempted

assault, a second-degree misdemeanor, arguing that his conviction is void because he

never actually entered a plea to support the conviction.        He further argues, in the

alternative, that the trial court abused its discretion in denying his presentence motion to

vacate his plea. Finding merit to the appeal, we reverse Mayfield’s conviction, vacate

his plea, and remand for further proceedings.

                               Procedural History and Facts

       {¶2} In August 2013, Mayfield was charged with assault, a violation of

Cleveland Codified Ordinance (“C.C.O.”) 621.03, and menacing, a violation of C.C.O.

621.07. On September 16, 2013, the trial court held a change of plea hearing, where

Mayfield allegedly entered a no contest plea to an amended charge of attempted assault.

The trial court sentenced Mayfield to 90 days in jail (with 77 days suspended and 13 days

credited for time already served), three years probation, and a $750 fine (with $500

suspended). The court further ordered Mayfield to have no contact with the victim.

       {¶3} Mayfield appeals, raising the following two assignments of error:

       I. Appellant’s conviction is void as he never entered a change of plea to
       the amended charge.

       II. Appellant was deprived of his right to a trial when the trial court
       refused to allow him to withdraw his plea prior to sentencing.

                                     No Contest Plea
       {¶4} In his first assignment of error, Mayfield argues that his conviction is void

because he never actually entered a change of plea, namely, a “no contest” plea. He

further contends that, even if this court found that he entered a plea of “no contest,” such

plea is fatally flawed because the trial court never advised him of the effect of his plea.

       {¶5} Initially, we note that the offense at issue in this case — attempted assault —

is a misdemeanor of the second degree as provided within C.C.O. 601.08 and 621.03.

Under Crim.R. 2(D), the offense constitutes a petty offense, as opposed to a serious

offense, because it carries only the possibility of 90 days in jail. See R.C. 2929.24(A)(2).



       {¶6} A trial court’s obligations in accepting a plea depends on the level of the

offense to which the defendant is pleading.          State v. Watkins, 99 Ohio St.3d 12,

2003-Ohio-2419, 788 N.E.2d 635, ¶ 25. With respect to pleas for petty offenses, a trial

court is required only to advise the defendant, either orally or in writing, of the effect of

the specific plea being entered. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093,

877 N.E.2d 677, paragraph one of the syllabus and ¶ 23; see also Crim.R. 11(E) (rule

instructs the court that it “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”).

       {¶7} Crim.R. 11(B)(2) contains the specific instruction that a court must provide a

defendant when informing the defendant of the effect of a no contest plea. Cleveland v.

Brown, 8th Dist. Cuyahoga No. 97878, 2012-Ohio-4722, ¶ 9. The rule 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 indictment, information, or complaint, and the plea or

admission shall not be used against the defendant in any subsequent civil or criminal

proceeding.” Thus, the trial court in this case was required to advise Mayfield, either

orally or in writing, and prior to accepting his no contest plea, of the language contained

in Crim.R. 11(B)(2). Id., citing Solon v. Bollin-Booth, 8th Dist. Cuyahoga No. 97099,

2012-Ohio-815, ¶ 17.

       {¶8} Here, the record reveals that the trial court never informed Mayfield, either

orally or in writing, of the effect of a no contest plea. The city concedes this point but

argues that Mayfield has failed to demonstrate prejudice.        This court, however, has

consistently recognized that when the record is devoid of any explanation of the no

contest plea, there is a complete failure to comply with Crim.R. 11(E) and therefore, no

prejudice analysis is necessary. E.g., Brown at ¶ 15; E. Cleveland v. Zapo, 8th Dist.

Cuyahoga No. 96718, 2011-Ohio-6757; Parma v. Pratts, 8th Dist. Cuyahoga No. 94990,

2011-Ohio-708; Parma v. Buckwald, 8th Dist. Cuyahoga Nos. 92354 and 92356,

2009-Ohio-4032. We have further recognized “that such failure amounts to reversible

error and requires the defendant’s plea to be vacated.” Brown at ¶ 15; Zapo at ¶ 10;

Pratts at ¶ 34. Thus, even if we accepted that the colloquy between the trial court and

Mayfield sufficiently evidenced that Mayfield entered a no contest plea to the amended

charge, we find that his plea must still be vacated because of the trial court’s failure to

inform him of the effect of his plea.
       {¶9} The first assignment of error is sustained.

                                 Motion to Withdraw Plea

       {¶10} In his second assignment of error, Mayfield argues that the trial court abused

its discretion in denying his presentence motion to withdraw his plea without first hearing

the basis of his motion. The city counters that Mayfield never filed any motion and

seemed to have abandoned his desire for a trial after “discussion and disposition of the

sentence.”

       {¶11} In this case, it is undisputed that Mayfield moved to withdraw his guilty plea

prior to the trial court imposing any sentence.           Mayfield’s motion therefore is a

presentence motion to withdraw his guilty plea.

       {¶12} Generally, a motion to withdraw a guilty plea made before sentencing

should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d

715 (1992). A defendant does not, however, have an absolute right to withdraw his plea

before sentencing. Id. at paragraph one of the syllabus. The trial court is required to

“conduct a hearing to determine whether there is a reasonable and legitimate basis for the

withdrawal of the plea.” Id. Following the hearing, the trial court’s decision to grant or

deny a motion to withdraw a plea will be upheld absent an abuse of discretion. Id. at

527.

       {¶13} No abuse of discretion is demonstrated where: (1) the accused is represented

by highly competent counsel, (2) the accused was afforded a full hearing, pursuant to

Crim.R. 11, before entering the plea, (3) after the motion to withdraw is filed the accused
is given a complete and impartial hearing on the motion, and (4) the record reveals that

the trial court gave full and fair consideration to the plea withdrawal request. State v.

Tull, 168 Ohio App.3d 54, 2006-Ohio-3365, 858 N.E.2d 828, ¶ 8 (2d Dist.), citing State v.

Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).

         {¶14} The record reveals that, immediately after accepting Mayfield’s no contest

plea, the trial court discussed Mayfield’s current probation status, including the fact that

the underlying case violates the terms of his current probation. At that point, Mayfield

requested to be heard by the court, and his trial counsel addressed the court, indicating

that Mayfield wanted a trial in this case. Specifically, the following exchange took

place:

         DEFENSE COUNSEL: He just told me he wants a trial, judge.

         THE COURT: What?

         PROSECUTOR: He’s already been convicted.

         DEFENSE COUNSEL: He just told me he wants a trial so I’ll let you
         know what he said.

         THE COURT: Didn’t you just enter a plea on his behalf?

         DEFENSE COUNSEL: Yeah. Now he just whispers to me he wants a
         trial. I just want to let you know what he did. But he said —

         PROSECUTOR: We’re past that, Your Honor, we’re already at the
         sentencing phase. He’s already been convicted. The fact that he wants to
         — that he sees he violated probation he wants a [sic] have a trial. Too
         late for that. He’s already been convicted. You accepted this plea.

         THE COURT: Anything you want to say [defense counsel]?

         DEFENSE COUNSEL:          Well I think we probably should’ve told him
       ahead of time before he pled that it might be a violation of his probation,

       judge, now that I think about it.

       {¶15} The trial court, however, never heard from Mayfield as to the basis for his

desire to withdraw his plea prior to proceeding to sentencing. Nor did the trial court

specifically inquire of defense counsel as to the grounds for such a motion. And while

no written motion was filed, Mayfield’s oral motion was sufficient to raise the issue with

the court. The need for a hearing on such a motion is most compelling in a case like this

where the plea colloquy was lacking and the defendant moved to withdraw his plea

almost immediately after entering it. Aside from not hearing from Mayfield regarding

his desire to go to trial, we cannot say that the trial court gave “full and fair consideration

to the plea withdrawal request” when it did not even expressly rule on the motion. See

Tull at ¶ 8.

       {¶16} Based on this record, the trial court therefore abused its discretion in

denying Mayfield’s presentence motion to vacate his plea. We cannot presume that

Mayfield abandoned his motion simply because he did not raise the motion a second time

after the trial court proceeded to sentencing.        The second assignment of error is

sustained.

       {¶17} But having already found that Mayfield’s plea was invalid, the trial court no

longer needs to consider Mayfield’s motion to withdraw his plea because this court has

ordered that the plea must be vacated.
       {¶18} Judgment reversed, plea vacated, and case remanded for further proceedings

consistent with this opinion.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the   Cleveland

Municipal Court to carry this judgment into execution

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

TIM McCORMACK, J., CONCURS;
KENNETH A. ROCCO, J., CONCURS (WITH SEPARATE OPINION)
KENNETH A. ROCCO, J., CONCURRING:

       {¶19} I concur with the majority’s well-reasoned opinion, and write separately to

raise two additional concerns about what took place at the change of plea hearing.      First,

I question whether Mayfield even entered a plea in the first place because he never

uttered the words, “no contest” during the hearing. Instead, the following discussion

took place at the hearing:

       THE COURT: Mr. Mayfield, you’re withdrawing your previous plea of
       not guilty entering a plea of no contest to the assault as amended * * *
       making it a misdemeanor of the second degree. And in consideration of
       that plea, the city is dismissing the remaining offense, menacing. Is that
       your understanding of your plea today?

       MAYFIELD: Yes, ma’am.
Mayfield argued that because he did not affirmatively state that he was pleading no

contest, he never actually entered a plea at the hearing.   I would tend to agree.

       {¶20} Second, I take issue with remarks made by the prosecutor at the hearing.

The majority opinion points to an exchange made between defense counsel, the court, and

the prosecutor.   When defense counsel told the court that Mayfield wanted a trial, the

prosecutor stated, “We’re past that, Your Honor, we’re already at the sentencing phase.

He’s already been convicted.      The fact that he wants to — that he sees he violated

probation he wants a [sic] have a trial.   Too late for that.     He’s already been convicted.

You accepted his plea.”    Maj. Op. at ¶ 14, quoting hearing transcript.        The prosecutor

misstated the law because the general rule is that a motion to withdraw a guilty plea made

before sentencing should be freely and liberally granted.       Maj. Op. at ¶ 12, citing State v.

Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). The record indicates that the trial

court had not yet sentenced Mayfield, and so it was not “too late” for Mayfield to request

a trial. And although the trial court did not respond to the prosecutor’s remarks, the trial

court went on to sentence Mayfield without even considering Mayfield’s request, leading

one to wonder whether the prosecutor’s misstatement of the law impacted on the trial

court’s decision to move forward with sentencing.
