[Cite as Hollingsworth v. Timmerman-Cooper, 133 Ohio St.3d 253, 2012-Ohio-3907.]




              HOLLINGSWORTH v. TIMMERMAN-COOPER, WARDEN.
                  [Cite as Hollingsworth v. Timmerman-Cooper,
                        133 Ohio St.3d 253, 2012-Ohio-3907.]
Criminal law—Crim.R. 11(B)(2) and Evid.R. 410(A)(2)—Admissibility of no-
        contest plea in subsequent proceeding—No-contest plea is admissible in
        habeas corpus action in which petitioner collaterally attacks the criminal
        conviction that resulted from his no-contest plea.
    (No. 2011-1095—Submitted April 3, 2012—Decided September 4, 2012.)
   ON ORDER from the United States District Court, Southern District of Ohio,
   Western Division, Certifying a Question of State Law, No. 1:08-CV-00745.
                                __________________
                              SYLLABUS OF THE COURT
Neither Crim.R. 11(B)(2) nor Evid.R. 410(A)(2) prohibits the use of a defendant’s
        no-contest plea in a subsequent proceeding in which the defendant
        collaterally attacks the criminal conviction that resulted from the no-
        contest plea.
                                __________________
        PFEIFER, J.
        {¶ 1} Petitioner, Ernest Hollingsworth, filed a habeas corpus action in
federal district court, asserting that he had received ineffective assistance of
counsel at his criminal trial. Respondent, Deb Timmerman-Cooper, warden of the
London Correctional Institution, countered that Hollingsworth’s plea of no contest
in the underlying criminal case constituted a waiver of his right to the effective
assistance of counsel. Hollingsworth objected, arguing that under Ohio law, the
state may not use his no-contest plea and resulting conviction against him,
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including using the plea as evidence that he waived his right to effective
assistance.
        {¶ 2} Finding that there was no controlling precedent on the
admissibility of a no-contest plea in a habeas proceeding, the federal district court
certified the following question for our resolution:


                  Do Ohio R. Crim. P. 11(B)(2) and Ohio R. Evid.
        410(A)(2), which prohibit the use of a defendant’s no contest plea
        against the defendant “in any subsequent civil * * * proceeding”
        apply to prohibit the use of such a plea in a subsequent civil
        proceeding which is a collateral attack on the criminal judgment
        which results from the no contest plea, such as a petition for post-
        conviction relief under Ohio Revised Code § 2953.21, or a federal
        habeas corpus action under 28 U.S.C. § 2254?


(Ellipsis sic.)
        {¶ 3} Today we answer the question in the negative.
                                     Analysis
                      Crim.R. 11(B)(2) and Evid.R. 410(A)(2)
        {¶ 4} Crim.R. 11(B)(2) states, “The 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.”
        {¶ 5} Evid.R. 410(A)(2) states that evidence of a plea of no contest “is
not admissible in any civil or criminal proceeding against the defendant who
made the plea.”
        {¶ 6} In Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125
Ohio St.3d 362, 2010-Ohio-1043, 928 N.E.2d 685, at ¶ 14, we stated:




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               The purpose behind the inadmissibility of no-contest pleas
       in subsequent proceedings is to encourage plea bargaining as a
       means of resolving criminal cases by removing any civil
       consequences of the plea. [State v.] Mapes, 19 Ohio St.3d [108] at
       111, 19 OBR 318, 484 N.E.2d 140 [1985]; Rose v. Uniroyal
       Goodrich Tire Co. (C.A.10, 2000), 219 F.3d 1216, 1220. The rule
       also protects the traditional characteristic of the no-contest plea,
       which is to avoid the admission of guilt. Id. The prohibition
       against admitting evidence of no-contest pleas was intended
       generally to apply to a civil suit by the victim of the crime against
       the defendant for injuries resulting from the criminal acts
       underlying the plea. Allstate Ins. Co. v. Simansky (1998), 45
       Conn.Supp. 623, 628, 738 A.2d 231.


       {¶ 7} The purposes served by these two rules are of limited applicability
in the present case. The present case involves a habeas action, not a civil suit by a
victim. In postconviction proceedings, there is no risk of subsequent civil liability
or even of enhanced criminal liability. The worst-case scenario for a defendant in
a postconviction proceeding is the status quo.
         Application of Crim.R. 11(B)(2) and Evid.R. 410 in Other Cases
       {¶ 8} In State v. Mapes, 19 Ohio St.3d 108, 484 N.E.2d 140 (1985), the
defendant, on trial for an Ohio murder, had pled “non vult,” the equivalent of no
contest, to an earlier murder charge in New Jersey. Id. at 111. In the Ohio
proceeding, the trial court allowed police officers from New Jersey to testify that
the defendant had been convicted of a murder in that state. Id. This evidence was
introduced to establish a death specification pursuant to R.C. 2929.04(A)(5). Id.
This court stated:



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                Crim.R. 11(B)(2) and Evid.R. 410 prohibit only the
        admission of a no contest plea. These rules do not prohibit the
        admission of a conviction entered upon that plea when such
        conviction is made relevant by statute. The trial court was correct
        in admitting the evidence of the prior conviction as it was not
        equivalent to the admission of the no contest plea and it was not
        introduced by the prosecution for any purpose other than
        establishing the specification.


Id.
        {¶ 9} In Elevators Mut. Ins. Co., a business was damaged by fire. 125
Ohio St.3d 362, 2010-Ohio-1043, 928 N.E.2d 685, ¶ 3. One of the owners pled
no contest to arson and insurance fraud and was convicted. Id. at ¶ 5. The insurer
brought an action seeking a declaration of no coverage and recovery of $30,000
advanced on the owners’ claim. Id. at ¶ 4. The trial court refused to allow the
insurer to use the owner’s plea of no contest against him on the basis that doing so
would contradict the goal of Evid.R. 410. But the court held that the convictions
based on the no-contest plea were admissible to prove that the owner had
intentionally set the fire.
        {¶ 10} The court of appeals reversed and remanded, rejecting the trial
court’s distinction between a no-contest plea and a conviction based on that plea.
The court further held that the limited exception to inadmissibility in Mapes did
not apply. The plea was inadmissible. This court affirmed.
        {¶ 11} Elevators Mut. illustrates perfectly the intended application of
Crim.R. 11(B)(2) and Evid.R. 410(A)(2). The result is in keeping with the goal of
removing the civil consequences of a no-contest plea, thereby encouraging plea
bargaining as a means of resolving criminal cases. It also preserves the traditional




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characteristic of the plea, which is to avoid an admission of guilt. Admission of
the no-contest plea against the defendant in that case would have thwarted both
goals.
           Application of Crim.R. 11(B)(2) and Evid.R. 410 to This Case
         {¶ 12} We turn now to a consideration of the applicability of the general
rule barring the use of no-contest pleas in habeas corpus proceedings.
         {¶ 13} Respondent argues that a no-contest plea is admissible in the
context of habeas corpus. She contends that a habeas action is not a “subsequent
civil or criminal proceeding” within the meaning of Crim.R. 11(B)(2). Nor is it a
proceeding distinct from the proceeding at which the petitioner pled no contest.
Citing State v. Lloyd, 8 Ohio App.2d 155, 156, 220 N.E.2d 840 (4th Dist.1966),
respondent asserts that a habeas action is instead a collateral proceeding, a
“continuation of the criminal action itself.”
         {¶ 14} Hollingsworth argues that the rules are unambiguous and therefore
not susceptible of interpretation. Sears v. Weimer, 143 Ohio St. 312, 55 N.E.2d
413 (1944), paragraph five of the syllabus (“An unambiguous statute is to be
applied, not interpreted”).    He asserts that the language of the two rules is
sweeping and absolute and that Elevators Mut. controls the issue before us. Thus,
neither the plea nor the resulting conviction is admissible in habeas as evidence of
waiver of the right to effective assistance of counsel.
         {¶ 15} At its core, a habeas action is a collateral attack on the underlying
conviction. Wall v. Kholi, ___ U.S. ___, ___, 131 S.Ct. 1278, 1284, 179 L.Ed.2d
252 (2011). In the instant case, the conviction was the result of a no-contest plea.
To prohibit the state from using the no-contest plea to defend the validity of the
conviction that resulted from the plea would render the state mute. The state has
no defense if the no-contest plea is not in play. As noted earlier, the clear
purposes of Crim.R. 11(B)(2) and Evid.R. 410(A)(2) are to encourage the use of
plea bargaining by removing the civil consequences of the plea and to avoid an



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admission of guilt. Prohibiting the state from introducing evidence of a no-
contest plea in a habeas action to show that the petitioner has waived his claim of
ineffective counsel does nothing to advance those purposes, and permitting use of
the plea does not frustrate them. The plea is not being used to impose liability on
the petitioner or to prove his guilt. There is no risk of subsequent civil liability or
even of enhanced criminal liability. The worst-case scenario for a defendant in a
postconviction proceeding such as habeas corpus is the status quo. As we stated
in Mapes, the purposes of the two rules “are not disserved” here. 19 Ohio St.3d at
111, 484 N.E.2d 140.
                                     Conclusion
       {¶ 16} We conclude that neither Crim.R. 11(B)(2) nor Evid.R. 410(A)(2)
prohibits the use of a defendant’s no-contest plea in a subsequent proceeding in
which the defendant collaterally attacks the criminal conviction that resulted from
the no-contest plea.     Accordingly, we answer the certified question in the
negative.
                                                                        So answered.
       O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,
CUPP, and MCGEE BROWN, JJ., concur.
                               __________________
       Repper, Pagan, Cook, Ltd., and Christopher J. Pagan, for petitioner.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, David M. Lieberman, Deputy Solicitor, and M. Scott Criss, Assistant
Attorney General; and Lauren S. Kuley, for respondent.
                             ______________________




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