[Cite as Cleveland v. Bardwell, 2017-Ohio-7072.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105099



                                CITY OF CLEVELAND
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                   BRIAN BARDWELL
                                                         DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Criminal Appeal from the
                                      Cleveland Municipal Court
                                      Case No. 2016 TRD 029459

        BEFORE: Boyle, J., Keough, A.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: August 3, 2017
FOR APPELLANT

Brian Bardwell, pro se
2119 Belle Avenue
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law
BY: Gina Villa
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} This appeal is before the court on the accelerated calendar pursuant to App.R.

11.1 and Loc. App.R. 11.1.

       {¶2} Defendant-appellant, Brian Bardwell, appeals from a judgment of the

Cleveland Municipal Court, convicting him of speeding in violation of R.C.

4511.21(D)(4), a minor misdemeanor. Bardwell raises the following two assignments of

error for our review:

       1. The trial court erred by finding sufficient evidence that the defendant
       exceeded the rural speed limit, R.C. 4511.21(D)(4) while driving in an
       urban area.

       2. The trial court erred by failing to protect the defendant’s procedural due
       process rights as required under Traf.R. 8 and Traf.R. 10.

       {¶3} We find merit to Bardwell’s second assignment of error, reverse the

judgment, and remand to the trial court.

I. Procedural History and Factual Background

       {¶4} On September 4, 2016, Bardwell was driving westbound on Interstate 90

(“I-90”) when Jovito Cirilo, a trooper with the Ohio State Highway Patrol, stopped him

for speeding. Trooper Cirilo issued Bardwell a traffic citation, and in doing so, noted on

the Uniform Traffic Ticket that he had used his speed gun to clock Bardwell going 79

m.p.h. in a 60-m.p.h. zone, in violation of R.C. 4511.21(D)(5).
       {¶5} On September 21, 2016, Bardwell appeared in Cleveland Municipal Court for

his arraignment on the citation. Bardwell pleaded not guilty to the offense, and the

cause was set for trial five days later.

       {¶6} On the day of trial, the Cleveland Municipal Court judge assigned to

Bardwell’s case asked Bardwell several questions, including whether he intended to

represent himself, and whether he had spoken to the city prosecutor.     Bardwell answered

both questions in the affirmative, and the judge stated that the case would proceed to trial.

       {¶7} Upon calling Bardwell’s case, Bardwell asked the judge for a continuance

due to certain alleged procedural errors in his arraignment.          Specifically, Bardwell

argued that the arraigning judge never advised him of the charges against him or gave

him a copy of the complaint. Bardwell cited to Ohio traffic rules in support of the fact

that his arraignment was procedurally defective.     The trial court denied his request for a

continuance and proceeded with the trial (explained more fully in the analysis section).

       {¶8} At trial, Trooper Cirilo testified that on September 4, 2016, he was stationed

in a marked Ohio State Highway Patrol car at a Cleveland post on I-90 just west of

downtown, when he observed a car traveling in the westbound lanes at what appeared to

be approximately 81 m.p.h. in a 60-m.p.h. zone. Trooper Cirilo used his speed gun to

clock Bardwell travelling at a rate of 79 m.p.h.      According to his testimony, Trooper

Cirilo identified Bardwell as the driver of the vehicle and further explained that he issued

Bardwell a citation for driving at a rate of speed in excess of the posted and clearly visible

speed limit signs.
         {¶9} Bardwell offered a limited cross-examination of the trooper’s testimony,

focusing a majority of his questions on attempting to discredit the trooper’s knowledge of,

and expertise in, using his speed gun. When Bardwell finished the cross-examination,

the city rested its case and Bardwell moved for a Crim.R. 29 acquittal.    The court denied

the motion.     The defense rested without calling a single witness, and Bardwell renewed

his motion for acquittal. Again, the court denied the motion.

         {¶10} Following trial, the court found Bardwell guilty of speeding and sentenced

him to pay all fines, fees, and costs associated with the citation, but stayed the sentence

pending further appeal. Curiously, however, both the journal entry noting the court’s

finding of guilt and the journal entry containing the sentencing order states that Bardwell

was found guilty of speeding in violation of R.C. 4511.21(D)(4), instead of speeding in

violation of R.C. 4511.21(D)(5), as listed on the traffic citation. It is from this judgment

that Bardwell appeals.

II. Sufficiency of the Evidence

         {¶11} In his first assignment of error, Bardwell argues that the city failed to

establish that he was guilty of speeding under R.C. 4511.21(D)(4) beyond a reasonable

doubt.

         {¶12} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black’s Law Dictionary 1433 (6th
Ed.1990). When an appellate court reviews a record upon a sufficiency challenge, “the

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶13} Bardwell argues that this court must overturn his conviction because

Trooper Cirilo failed to offer any testimony that could support a finding that Bardwell

was speeding on a “rural” highway, pursuant to R.C. 4511.21(D)(4), which requires

evidence of such a fact.      See id.    Although creative, Bardwell’s challenge to the

sufficiency of the evidence stems from the court’s apparent mistake in listing R.C.

4511.21(D)(4) on the judgment and sentencing journal entries, instead of the actual

offense charged, which was R.C. 4511.21(D)(5).        As explained below, the statements

and evidence contained in the record convinces us that this was a simple ministerial error

and not an intentional modification of the charge by the court or prosecution.

       {¶14} Speeding in violation of R.C. 4511.21(D)(5) requires a showing that a

person operated a vehicle upon a street or highway at a speed exceeding the posted speed

limit. See id. The record reflects that this was the offense charged on the Uniform

Traffic Citation issued by Trooper Cirilo, and is the offense that the prosecution, defense,

trooper, and judge all understood to be at issue during the trial.               Indeed, the

prosecution’s opening statement outlined the elements of R.C. 4511.21(D)(5) as things

Trooper Cirilo would testify to, and Trooper Cirilo did testify to those things later in the
trial. Moreover, in his Crim.R. 29 motions for acquittal, Bardwell argued that the city

failed to present evidence going to every element of speeding in violation of R.C.

4511.21(D)(5). At no point did Bardwell mention the city’s failure of proof under R.C.

4511.21(D)(4) as a reason for acquittal.     And on appeal, Bardwell altogether abandons

his sufficiency argument under R.C. 4511.21(D)(5), which was the subject of his Crim.R.

29 motions.

       {¶15} Where a trial court, such as here, makes a ministerial or technical error in

transcription of the offense, it is the practice of appellate courts to remand to the matter to

the trial court to enter a nunc pro tunc journal entry that correctly reflects what is already

obvious from the record.     See, e.g., State v. McElroy, 8th Dist. Cuyahoga Nos. 104639,

104640, and 104641, 2017-Ohio-1049, ¶ 48; State v. Valdez, 5th Dist. Licking No.

05-CA-00094, 2006-Ohio-3298, ¶ 90; State v. Williams, 6th Dist. Lucas No. L-02-1394,

2004-Ohio-466, ¶ 7-8.        Because the record shows that Bardwell was charged and

convicted of speeding in violation of R.C. 4511.21(D)(5), we cannot say there was

insufficient evidence to support his conviction. Accordingly, we overrule Bardwell’s

first assignment of error.

III. Failure to Comply with Traf.R. 8 and 10

       {¶16} In his second assignment of error, Bardwell argues that he was deprived of

certain procedural rights when the court failed to comply with the requirements of Traf.R.

8 and 10.   We agree.
       {¶17} The Ohio Supreme Court promulgated the Ohio Traffic Rules to provide

procedures to be followed in all traffic cases that come before any court in the state.

Traf.R. 1(A).   Traf.R. 8 provides the procedure for arraignment.      It states in relevant

part at sections (B) and (D):

       (B) Arraignment procedure. Arraignment shall be conducted in open court
       and shall consist of reading the complaint to the defendant, or stating to him
       the substance of the charge, and calling on him to plead thereto. The
       defendant shall be given a copy of the complaint, or shall acknowledge
       receipt thereof, before being called upon to plead and may in open court
       waive the reading of the complaint.

       ***

       (D) Explanation of rights. Before calling upon a defendant to plead at
       arraignment the judge shall cause him to be informed and shall determine
       that defendant knows and understands:

       (1) That he has a right to counsel and the right to a reasonable continuance
       in the proceedings to secure counsel, and, pursuant to Criminal Rule 44, the
       right to have counsel assigned without cost to himself if he is unable to
       employ counsel;

       (2) That he has a right to bail as provided in Rule 4;

       (3) That he need make no statement at any point in the proceeding; but any
       statement made may be used against him;

       (4) That he has, where such right exists, a right to jury trial and that he
       must, in petty offense cases, make a demand for a jury pursuant to Criminal
       Rule 23;

       (5) That if he is convicted a record of the conviction will be sent to the
       Bureau of Motor Vehicles and become a part of his driving record.

       {¶18} Traf.R. 10 provides for the rights of a defendant upon entering a plea and

specifically states at subsection (F) that a court may proceed to trial immediately
following the acceptance of a plea at arraignment with the written consent of the

defendant and the prosecution.        This section further provides that a court shall not

proceed to trial immediately following arraignment where the defendant seeks a

continuance.      In such a case, the court shall set the trial for a different date.    Traf.R.

10(F).

          {¶19} The transcript of Bardwell’s initial arraignment held on September 21, 2016,

does not reflect that the court followed any of the procedural requirements of Traf.R. 8(B)

or (D). Indeed, the transcript of proceedings, which is only six lines long, contains a

general greeting between Bardwell and the judge, and Bardwell’s immediate plea of not

guilty.    Rather than backtracking to ensure that Bardwell was made aware of his rights,

the arraigning judge ended the arraignment by telling Bardwell “good luck” and asking

him to step aside, so the court could proceed to the next defendant.

          {¶20} When Bardwell appeared in court on September 26, 2016, Bardwell told the

judge that he still wished to plead not guilty and that he intended to go to trial. As the

court began the trial proceedings, Bardwell asked, “Your honor, are we starting the trial

right now?”       The judge replied that the trial was starting.       Bardwell stated, “My

understanding I was here for an arraignment, which I have not gotten yet.”       At that point,

the judge explained to Bardwell that when he previously appeared, it was for his

arraignment and that his rights were explained to him then “by way of video.”           Bardwell

told that judge, “I was not present for any video presentation.”        The court then stated
because Bardwell “missed the video,” it was required to explain Bardwell’s rights to him,

which it did at that point.

       {¶21} After reading Bardwell’s rights to him, the trial court asked Bardwell if he

still wished to proceed to trial. Bardwell said that he did but that he was still waiting for

a “reading and copy of the complaint.”     The judge asked Bardwell if he received a traffic

citation at the time of the stop. Bardwell waffled on the question, first stating that he

“could not remember” and then stating he would “not answer * * * any questions about

the time of the incident in question.” When asked why, Bardwell replied that it was his

Fifth Amendment right not to answer. The judge then had his bailiff give Bardwell a

copy of the complaint.

       {¶22} At that point, the judge told Bardwell that he was proceeding with trial.

Bardwell objected, citing to the Ohio Traffic Rules, and saying that “this hearing” was his

arraignment and that he was entitled to a continuance.     The trial court replied, “you can

take that up with the court of appeals.”

       {¶23} Although the trial judge attempted to make up for the procedural

deficiencies in Bardwell’s arraignment by advising Bardwell of his rights immediately

prior to trial, retaking his plea, and giving him a copy of the complaint, the trial judge

violated Traf.R. 10(F) by denying his request for a continuance and immediately

proceeding to trial.   Given the defective nature of the prior hearing, the trial judge’s

advisement effectively served as Bardwell’s first arraignment.     Accordingly, pursuant to

Traf.R. 10(F), the court was obliged to continue the trial to a later date to give Bardwell
time to prepare his defense, obtain counsel if needed, and generally consider any possible

alternatives to trial the prosecution might offer. See State v. Hamilton, 3d Dist. Union

No. 14-86-27, 1987 Ohio App. LEXIS 9472, *3 (Nov. 4, 1987) (a violation of Traf.R.

10(F), alone, is sufficient to overturn a conviction).

       {¶24} For this reason, we vacate Bardwell’s conviction and remand to the

Cleveland Municipal Court.

       {¶25} Judgment reversed and remanded.

       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, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
