[Cite as State v. Wright, 2019-Ohio-374.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2018CA00158
NATHAN WRIGHT                                  :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Canton Municipal
                                                   Court, Case No. 2018TRC05890

JUDGMENT:                                          Affirmed


DATE OF JUDGMENT ENTRY:                            February 4, 2019



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KRISTEN BATES AYLWARD                              CANDACE KIM KNOX
Canton Law Director                                333 S. Main Street
JASON P. REESE                                     Ste. 200
Canton City Prosecutor                             Akron, OH 44308
KATIE ERCHICK GILBERT
Deputy Chief Counsel
218 Cleveland Ave. S.W.
Canton, OH 44701-4218
[Cite as State v. Wright, 2019-Ohio-374.]


Gwin, P.J.

        {¶1}     Defendant-appellant Nathan Wright [“Wright”] appeals his conviction and

sentence after a no contest plea in the Canton Municipal Court.

                                            Facts and Procedural History

        {¶2}     On July 18, 2018, Wright was cited with OVI in violation of R.C. 4511.19

(A)(1) (a) “under the influence” and “prohibited level” under R.C. 4511.19 (A)(1)(d).

        {¶3}     On September 28, 2018, the trial court consolidated both counts of OVI into

one count, and Wright entered a no contest plea to the charge and stipulated to a finding

of guilt. The trial court ordered Wright to pay a $625 fine and court costs. Wright was

further ordered to serve a term of 180 days in the Stark County Jail with all but three of

those days suspended. Wright was advised that he could complete his three days in the

driver's intervention program. Upon completion of this program, the trial court instructed

Wright that he would receive a $250.00 credit toward his fine. Wright was also ordered

to complete 50 hours of community service and his license was suspended for a period

of one year, which was effective from the date of the offense, July 18, 2018.

                                               Assignments of Error

        {¶4}     Wright assigns two potential errors,

        {¶5}     “I. THE APPELLANT'S PLEA MUST BE DECLARED NULL AND VOID

BECAUSE HE WAS NEVER INFORMED BY THE TRIAL COURT OF THE

CONSTITUTIONAL RIGHTS, HE WOULD BE WAIVING BY CHANGING HIS PLEA TO

NO CONTEST, NOR WAS THE APPELLANT INFORMED OF THE POTENTIAL

CONSEQUENCES OF HIS NO CONTEST PLEA; THEREBY, RENDERING HIS PLEA
Stark County, Case No. 2018CA00158                                                        3


UNKNOWINGLY, UNINTELLIGENTLY, AND INVOLUNTARILY MADE AND IN

VIOLATION OF OHIO CRIM.R.11.

       {¶6}   “II. THE APPELLANT'S PLEA OF NO CONTEST IS VOID DUE TO THE

TRIAL COURT'S FAILURE TO COMPLY WITH R.C. 2937.07 WHICH REQUIRES A

TRIAL COURT TO "MAKE A FINDING OF GUILTY OR NOT GUILTY FROM THE

EXPLANATION OF THE CIRCUMSTANCES OF THE OFFENSE.” SEE R.C. 2937.07.”

       REFERENCE TO MATTERS NOT CONTAINED IN THE TRIAL COURT

RECORD.

       {¶7}   Both parties refer this Court to matters without citation to the transcript or

trial court record where the information is to be found.

       {¶8}   In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),

the Supreme Court noted, “a reviewing court cannot add matter to the record before it

that was not a part of the trial court's proceedings, and then decide the appeal on the

basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”

It is also a longstanding rule "that the record cannot be enlarged by factual assertions in

the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),

citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d

227(1963). New material and factual assertions contained in any brief in this court may

not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858

N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843

N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in both party’s

brief that are outside of the record.
Stark County, Case No. 2018CA00158                                                          4


                                               I & II.

       {¶9}   In his two Assignments of Error, Wright argues that the trial court’s failure

to properly inform him of the potential penalties of his plea and of the constitutional rights

he would be waiving by entering a no contest plea render his plea void. Wright further

contends that his plea is void because the trial court failed to comply with R.C. 2937.07.

       STANDARD OF APPELLATE REVIEW.

       {¶10} A guilty plea is a complete admission of guilt. Crim.R. 11(B)(1). In contrast,

a plea of no contest is not an admission of guilt but “an admission of the truth of the facts

alleged in the indictment, information, or complaint.” Crim.R.11(B)(2). A trial court has

discretion to accept or reject a no-contest plea. See Crim.R. 11(A) (defendant may plead

no contest with the consent of the court). The court’s decision will not be reversed absent

an abuse of discretion. See State v. Jenkins, 15 Ohio St.3d 164, 223, 473 N.E.2d 264

(1984).

       {¶11} An abuse of discretion exists where the reasons given by the court for its

action are clearly untenable, legally incorrect, or amount to a denial of justice, or where

the judgment reaches an end or purpose not justified by reason and the evidence.

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship

of S .H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No.2006–CA–41, 2006–Ohio–5823, ¶54.

       ISSUE FOR APPEAL.

       A. Whether the trial court was required to inform Wright of the constitutional

rights that he was waiving before accepting his no contest plea.
Stark County, Case No. 2018CA00158                                                             5


       {¶12} Pursuant to Crim.R. 2, Wright’s offense is considered a “petty offense.” A

“petty offense,” is “a misdemeanor other than a serious offense,” punishable by

incarceration of up to 180 days. Crim.R. 2(D). For this reason Crim.R. 11(D) is not

applicable to plea requirements in the case at bar. “Petty offenses” are governed by

Crim.R. 11(E). Thus, prior to accepting a plea of no contest to a petty offense, the trial

court shall “first [inform] the defendant * * * of the effect of the pleas of guilty, no contest,

and not guilty” in addition to informing unrepresented defendants of their right to counsel

under Crim.R. 44(B) and (C). Crim.R. 2(D).

       {¶13} The Ohio Supreme Court specifically considered the information the trial

court is required to communicate to a defendant entering a guilty or no contest plea to a

first degree misdemeanor in State v. Jones, 116 Ohio St.3d 211, 2007–Ohio–6093, 877

N.E.2d 677. The Court concluded, “In accepting a plea to a misdemeanor involving a

petty offense, a trial court is required to inform the defendant only of the effect of the

specific plea being entered.” Id. at ¶ 20. The Court then defined the “[e]ffect of a plea for

purposes of Crim.R. 11” for a no contest plea as “not an admission of guilt but is an

admission of the truth of the facts alleged in the complaint, and that the plea or admission

shall not be used against the defendant in any subsequent civil or criminal proceeding.”

Id. at ¶ 23, citing Crim.R. 11(B)(2). Unlike the provisions of Crim.R. 11, which govern the

acceptance of felony pleas, or pleas to misdemeanors that are “serious offenses,” Crim.R.

11(E) does not require the court to determine whether a defendant is entering into the

plea voluntarily. Crim.R. 11(D), which does require such an inquiry, pertains only to

offenses punishable by incarceration for more than six months and clearly does not apply

to this case. The Supreme Court noted in Jones that it had already rejected the idea that
Stark County, Case No. 2018CA00158                                                          6


a trial court was required to engage a defendant who proposed to plead no contest to a

petty offense in a full Crim.R. 11(C) colloquy about the effect of his plea, in State v.

Watkins, 99 Ohio St.3d 12, 2003–Ohio–2419, 788 N.E.2d 635. Jones at ¶ 23.

        B. Whether the failure to advise Watkins of the effect of the no contest plea

or the court’s failure to request a recitation of facts render Wright’s no contest plea

void.

        {¶14} Crim.R. 11(E) 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.” Thus, for a no contest plea to a

petty misdemeanor offense, “a defendant must be informed that the plea of no contest is

not an admission of guilt but is an admission of the truth of the facts alleged in the

complaint, and that the plea or admission shall not be used against the defendant in any

subsequent civil or criminal proceeding.” State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-

6093, 877 N.E.2d 677, ¶ 23.

        {¶15} R.C. 2937.07 sets forth the procedure for taking a no-contest plea in a

misdemeanor case: “A plea to a misdemeanor offense of ‘no contest’ or words of similar

import shall constitute an admission of the truth of the facts alleged in the complaint and

that the judge or magistrate may make a finding of guilty or not guilty from the explanation

of the circumstances of the offense.” The statute further provides that no explanation of

circumstances is required for a plea of no contest to a minor misdemeanor. Id. Crim.R.

11 reiterates 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.”
Stark County, Case No. 2018CA00158                                                            7


       {¶16} The right to be informed a no contest plea is not an admission of guilt, but

is an admission of the truth of the facts alleged in the indictment is non-constitutional;

therefore, the trial court’s failure to inform a defendant of the effect of a no contest plea is

subject to review under a standard of substantial compliance. See, State v. Nero, 56

Ohio St.3d 106, 108, 564 N.E.2d 474. The failure to substantially comply with non-

constitutional rights will not invalidate a plea unless the defendant thereby suffered

prejudice. See, Id. The test for prejudice is “whether the plea would have otherwise been

made.” Id.

       {¶17} In the case at bar, the trial court did not explain the effect of the no contest

plea before accepting Wright’s plea.

       {¶18} R.C. 2937.07, which governs the taking of misdemeanor pleas, provides

that in pleading no contest to a misdemeanor, “it shall constitute a stipulation that the

judge * * * may make a finding of guilty or not guilty from the explanation of circumstances

[.]” See State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821(1995). A no contest

plea may not be the basis for a finding of guilt without an explanation of circumstances

that includes a statement of the facts that support all of the essential elements of the

offenses. Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 151, 459 N.E.2d 532(1984).The

right to an explanation of circumstances is not abrogated by Crim.R. 11. Cuyahoga Falls

v. Bowers 9 Ohio St.3d 148, 150, 459 N.E.2d 532(1984).

       {¶19} Recently, the Ohio Supreme Court reiterated that for a plea of no contest,

substantial compliance is not the standard in determining compliance with the recitation

of facts requirement,
Stark County, Case No. 2018CA00158                                                     8

               We considered an earlier version of R.C. 2937.07 in Cuyahoga Falls

     v. Bowers, 9 Ohio St.3d 148, 459 N.E.2d 532 (1984). The question in that

     case was whether Crim.R. 11 had superseded the statute. Id. at 149, 459

     N.E.2d 532. At the time, R.C. 2937.07 provided: “ ‘If the plea be “no contest”

     or words of similar import in pleading to a misdemeanor, it shall constitute

     a stipulation that the judge * * * may make a finding of guilty or not guilty

     from the explanation of circumstances * * *.’” Bowers at 150, 459 N.E.2d

     532, quoting former R.C. 2937.07, Am.Sub.S.B. No. 73, 128 Ohio Laws 97,

     104-105. Crim.R. 11(B)(2) provided (and still provides): “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 * * *.”

     Concluding that “R.C. 2937.07 confers a substantive right,” the court

     determined that the statute was not superseded by Crim.R. 11 and therefore

     held that “a no contest plea may not be the basis for a finding of guilty

     without an explanation of circumstances.” Bowers at 150, 459 N.E.2d 532.

     Turning to the facts of the case, which involved a charge of driving while

     intoxicated, the court considered whether the requirement of an explanation

     of circumstances was satisfied by the documentary evidence in the record—

     a chemical-breath-test report, the arresting officer’s report, and the accident

     report.     Id.   Because there was no indication that the trial court had

     considered those documents or that an explanation of circumstances had

     been provided, we concluded that the guilty finding had to be vacated. Id.

     at 151, 459 N.E.2d 532.
Stark County, Case No. 2018CA00158                                                        9

Girard v. Giordano, ___Ohio St.3d___, 2018-Ohio-5024(Dec. 18, 2018), ¶15 (emphasis

added). The Court concluded,

             That the explanation-of-circumstances requirement is a procedural

      protection, rather than a part of the prosecution’s burden of proof, is also

      evidenced by the fact that no such requirement exists in felony cases. In a

      felony case in which the “indictment, information, or complaint contains

      sufficient allegations to state a felony offense and the defendant pleads no

      contest, the court must find the defendant guilty of the charged offense.”

      State v. Bird, 81 Ohio St.3d 582, 692 N.E.2d 1013 (1998), syllabus. If an

      explanation of circumstances were necessary to establish the elements of

      the crime, the need for such a requirement would be even greater in felony

      cases—where the stakes are higher—than in misdemeanor cases.

             Thus,    the   explanation-of-circumstances    requirement     is   best

      understood as providing a level of procedural protection to the defendant.

      It allows the court to find a defendant not guilty when the facts of the case

      do not rise to the level of a criminal violation.

Giordano, ___Ohio St.3d___, 2018-Ohio-5024(Dec. 18, 2018) at ¶¶ 19-20.

      {¶20} In the case at bar, the trial court did not request a recitation of facts before

accepting Wright’s no contest plea.

      C. Whether Wright waived or invited the errors that he now raises.

      {¶21} However, the fact that a right may be a “substantive” right does not prevent

its waiver. Constitutional rights, as any other rights, may be waived. As was said in

Yakus v. United States, 321 U.S. 414, at 444, 64 S.Ct. 660, at 677, 88 L.Ed. 834, “No
Stark County, Case No. 2018CA00158                                                          10


procedural principle is more familiar to this Court than that a constitutional right may be

forfeited in criminal as well as civil cases by the failure to make timely assertion of the

right before a tribunal having jurisdiction to determine it. * * * ”

         {¶22} Further, under the doctrine of “invited error,” it is well settled that “a party

will not be permitted to take advantage of an error which he himself invited or induced the

trial court to make.” State ex rel. Smith v. O'Connor, 71 Ohio St.3d 660, 663, 646 N.E.2d

1115(1995), citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 626 N.E.2d

950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145(1943), paragraph

one of the syllabus. As the Ohio Supreme Court has stated,

                The law imposes upon every litigant the duty of vigilance in the trial

         of a case, and even where the trial court commits an error to his prejudice,

         he is required then and there to challenge the attention of the court to that

         error, by excepting thereto, and upon failure of the court to correct the same

         to cause his exceptions to be noted. It follows, therefore, that, for much

         graver reasons, a litigant cannot be permitted, either intentionally or

         unintentionally, to induce or mislead a court into the commission of an error

         and then procure a reversal of the judgment for an error for which he was

         actively responsible.

Lester at 92-93, 50 N.E.2d 145, quoting State v. Kollar (1915), 142 Ohio St. 89, 91, 49

N.E.2d 952(1915); Walker v. State, 5th Dist. Stark No.2007CA00037, 2007-Ohio-5262, ¶

48-52.

         {¶23} In addition, while the law mandates the explanation of circumstances the

court in State v. Arnold, recognized “the many other Ohio courts that have held that the
Stark County, Case No. 2018CA00158                                                         11

explanation-of-circumstances requirement of R.C. 2937.07 is waivable.” State v. Arnold,

3rd Dist., Seneca No. 13-16-13, 2017-Ohio-326, 72 N.E.3d 715, ¶ 10, citing State v. Kern,

6th Dist. Lucas No. L-14-1173, 2015-Ohio-1988, ¶ 12, citing City of Broadview Hts. v.

Burrows, 8th Dist. Cuyahoga No. 79161, 2001 WL 1174264, 2 (Oct. 4, 2001), State v.

Smyers, 5th Dist. Muskingum No. CT03-0039, 2004-Ohio-851, ¶ 12, State v. Ritch, 4th

Dist. Scioto No. 97CA2491, 1998 WL 282970 (May 11, 1998), City of North Ridgeville v.

Roth, 9th Dist. Lorain No. 03CA008396, 2004-Ohio-4447, ¶ 12. Accord, State v. Erdman,

12th Dist. Butler No. CA2016-07-126, 2017-Ohio-1092, ¶13, citing North Ridgeville v.

Roth, 9th Dist. Loraine No. 03CA008396, 2004-Ohio-4447; State v. Howell, 7th Dist.

Mahoning No. 04 MA 31, 2005-Ohio-2927, ¶20.

       {¶24} In the case at bar, Wright was represented by counsel. Wright pled no

contest thereby admitting the facts in the complaint. In addition, Wright did not simply

stipulate to the facts – he stipulated to “a finding of guilt.” T. at 4 (emphasis added). In

other words, Wright agreed that the trial court would find him guilty based upon the facts

contained in the complaint. Wright cites to no facts in the trial court record that during the

plea hearing he did not understand the proceedings, the charges, or the significance of

the plea that he was entering. Wright never questioned on the record his attorney, the

judge or otherwise indicted his confusion. Wright has not elucidated with any specificity

any information the judge could have provided to him that would have altered his decision

to enter a no contest plea with the advice of counsel. See, State v. Guerriero, 7th Dist.

Mahoning No. 12 MA 48, 2012-Ohio-5990, ¶13. At no time during the proceedings did

Wright claim that he was innocent. The facts of the Complaint allege that Wright operated

a motor vehicle while under the influence of alcohol and with a blood alcohol content of
Stark County, Case No. 2018CA00158                                                            12


.128, which is over the legal limit. Accordingly, this is not a case where a reading of the

facts would have permitted the trial judge to find insufficient evidence to convict Wright of

the charged offenses.

       {¶25} In the case at bar, we find Wright or his attorney could have, but did not,

object to the trial court’s failure to ask for a recitation of facts. We further find that Wright

or his attorney could have, but did not, ask the trial to explain the effect of his no contest

plea. Therefore, we find that Wright waived and invited the errors that he now raises on

appeal. Further, we find that Wright has failed to demonstrate prejudice from the trial

court’s failure to explain the effect of a no contest plea and the trial court’s failure to ask

for a recitation of the underlying facts.

       {¶26} Wright’s First and Second Assignments of Error are overruled.

       {¶27} The judgment of the Canton Municipal Court is affirmed.


By Gwin, P.J., and

Wise, Earle, J, concur;

Hoffman, J., concurs in part;

dissents in part
Stark County, Case No. 2018CA00158                                                          13

Hoffman, J., concurring in part and dissenting in part


       {¶28} I respectfully dissent from the majority opinion.

       {¶29} My first disagreement is with the standard of appellate review the majority

applies. While I fully agree the trial court has discretion to accept or reject a no contest

plea, that is not the issue presented in this case. The issue herein is whether the trial

court complied with the requirements of Crim.R. 11(E) and/or R.C. 2937.07 before it

decided to accept Appellant’s plea of no contest. Crim. Rule 11(E) clearly specifies the

trial court “may” refuse to accept the plea, but “shall” not accept the plea without informing

the defendant of the effect of the plea. I find the issue of compliance with the criminal

rule and/or statute raised in this case is a legal requirement – not a discretionary one.

       {¶30} I do agree with the majority’s analysis and conclusion with respect to

Appellant’s second assignment of error asserting his plea was void because of the trial

court’s failure to comply with R.C. 2937.07. By his stipulation to a finding of guilty, I agree

Appellant waived and invited the error he now raises in his second assignment of error.

       {¶31} The majority elects to discuss both assignments of error collectively and

concludes, “Wright waived and invited the errors that he now raises on appeal.” (Majority

Op. at ¶25, emphasis added).

       {¶32} I do not believe Appellant waived or invited the error regarding the failure of

the trial court to comply with Crim.R. 11(E) as a result of his stipulation to a finding of

guilty. Nor do I find waiver of invited error because neither he nor his attorney informed

the trial court Appellant did not understand the significance of the plea he was entering

or otherwise indicated his confusion. (Maj. Op. at ¶24).
Stark County, Case No. 2018CA00158                                                           14

       {¶33} The case cited in the majority opinion, State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, clearly states the trial court is required to inform the defendant of the

effect of the specific plea being entered. The Ohio Supreme Court therein specifically

defined “effect” to mean informing the defendant a no contest plea is not an admission of

guilt, but an admission of the truth of the facts alleged in the complaint, and the plea or

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

proceeding. The majority specifically finds the trial court did not explain the effect of the

no contest plea before accepting Wright’s plea.          (Maj. Op. at ¶17).      I submit this

contravenes the direct mandate of Crim.R. 11(E) and Jones, supra.

       {¶34} The majority bases its decision to overrule this argument on the fact “Wright

has failed to demonstrate prejudice from the trial court’s failure to explain the effect of the

no contest plea.” (Maj. Op. at ¶25). I submit a showing of prejudice is only required when

there has been “substantial compliance” with Crim.R. 11(E) as to a non-constitutional

right, not where there has been a complete failure of compliance.

       {¶35} To such extent, I agree with the decision reached by the Sixth District Court

of Appeals in State v. Whitfield, Lucas County No L-17-1083, 2018-Ohio-667.                  In

Whitfield, the Sixth District was presented with the exact same issue raised herein:

whether the trial court erred in failing to inform the appellant of the effect of his no-contest

plea according to Crim.R. 11(E). The Whitfield Court held, “…if a trial court completely

fails to comply with Crim.R. 11 in any regard, whether constitutional or non-constitutional

rights are involved, there is no need to demonstrate prejudice because it can be presumed

that a knowing, intelligent, and voluntary plea could not have been made and the plea

must be vacated. Clark; Venery at ¶32.” Id. at ¶9.
Stark County, Case No. 2018CA00158                                                                          15


        {¶36} I would sustain Appellant’s first assignment of error1, order the plea vacated

and remand the matter to the trial court for further proceedings.




1I disagree with Appellant’s assertion the claimed error renders his plea null and void. I find it renders it
voidable.
