         [Cite as State v. Beasley, 2016-Ohio-1603.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NO. C-150431
                                                       TRIAL NO. B-1405968
        Plaintiff-Appellee,                        :
                                                           O P I N I O N.
  vs.                                              :

ANDREA BEASLEY,                                    :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 20, 2016




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                       OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Judge.

        {¶1}    Defendant-appellant Andrea Beasley appeals from a conviction for

possession of cocaine under R.C. 2925.11(A). While we find some merit in her sole

assignment of error, we ultimately affirm her conviction.

        {¶2}    The record shows that police officers stopped Beasley’s vehicle because

she was driving under suspension. The officers searched her vehicle and discovered

cocaine. Following her indictment, Beasley filed a motion to suppress in which she

alleged that the stop and search of her vehicle violated her rights under the Fourth

Amendment. Following a hearing, the trial court overruled the motion and set the

matter for a jury trial.

        {¶3}    At the next hearing, Beasley’s counsel indicated that she wished to enter a

plea, but that counsel had “a few things” he needed to put on the record. He stated:

                 Judge, we had a conversation in chambers. My client wishes to

        plead no contest. But as this Court explained, the Court has a blanket

        policy [of] not accepting no contest pleas, and the Court will only accept a

        guilty or not guilty [plea].

                 The State has agreed to allow her to plead no contest, and we

        discussed the fact that my client wants to plead no contest to preserve her

        right to appeal the motion to suppress that was denied. But the court

        reiterated that it has a policy of not accepting no contest pleas under any

        circumstances.

                 She does not dispute the facts of the case. But in light of her

        options she wants to enter the plea.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    The trial court responded, “I see what you are saying. Okay. All right.

Anything from the State regarding that?” The state replied, “No, Judge.” After a

recitation of the facts, Beasley then entered a guilty plea. The trial court sentenced her to

community control, and this appeal followed.

       {¶5}    In her sole assignment of error, Beasley contends that the trial court erred

in implementing a blanket policy of refusing to accept no-contest pleas. She argues that

she was prejudiced because she could not appeal the court’s ruling on her motion to

suppress. Though we agree that it is error for a trial court to have a blanket policy of not

accepting no-contest pleas, we find that on the record before us, the error was not

preserved for appeal and, therefore, this assignment of error is not well taken.

       {¶6}    A no-contest plea is not an admission of guilt, but an admission of the

facts as alleged in the indictment.      It cannot be used against a defendant in any

subsequent civil or criminal proceeding. Crim.R. 11(B)(2); State v. Anderson, 1st Dist.

Hamilton No. C-070098, 2007-Ohio-6218, ¶ 11.

       {¶7}    A guilty plea, on the other hand, is a complete admission of guilt. Crim.R.

11(B)(1); State v. Morgan, 181 Ohio App.3d 747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶ 23

(1st Dist.). It renders irrelevant those constitutional violations not logically inconsistent

with factual guilt. A defendant who enters a guilty plea waives the right to appeal the

denial of most pretrial motions, including motions to suppress. Morgan at ¶ 25-26;

State v. Chichester, 1st Dist. Hamilton No. C-050381, 2006-Ohio-4030, ¶ 11.

       {¶8}    A trial court has broad discretion to accept or reject a no-contest plea.

State v. Carter, 124 Ohio App.3d 423, 428, 706 N.E.2d 409 (2d Dist.1997); State v.

Rader, 55 Ohio App.3d 102, 104-105, 563 N.E.2d 304 (1st Dist.1988). Numerous courts,

including this one, have held that the trial court errs when it fails to exercise its

discretion according to the facts and circumstances of the individual case. See State v.



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Jones, 2013-Ohio-3559, 996 N.E.2d 569, ¶ 10-20 (6th Dist.); State v. Allen, 8th Dist.

Cuyahoga No. 98394, 2013-Ohio-1656, ¶ 9-13; Bauer v. Heaton, 68 Ohio App. 181, 183-

184, 38 N.E.2d 413 (1st Dist.1941).

       {¶9}    Further, other appellate districts have specifically held that the trial court

errs in following a blanket policy of refusing to accept no-contest pleas. In Carter, the

Second Appellate District held that the trial court’s policy of not accepting no-contest

pleas was an abuse of discretion because the trial court arbitrarily refused to consider

the facts and circumstances of the case. Carter at 428. The court found that the

defendant was prejudiced because the trial court denied the defendant the right to

appeal a pretrial motion. Id. at 429. It further stated that “we cannot say that [the

defendant’s] guilty plea and consequent waiver of his right to appeal the denial of his

speedy trial motion was independent of, and untainted by, the trial court’s refusal to

accept his no-contest plea.” Id.

       {¶10} In State v. Graves, 10th Dist. Franklin No. 98AP-282, 1998 Ohio App.

LEXIS 5608, *8-11 (Nov. 19, 1998), the Tenth Appellate District stated that the trial

court had given no reason for refusing to accept a no-contest plea other than a blanket

policy of not accepting such pleas, and that it had abused its discretion by refusing to

accept the defendant’s plea. Id. at *10. Further, the court found that the defendant was

prejudiced because he had wanted to use the no-contest plea to preserve his rights in an

underlying insurance dispute. Id. at *11.

       {¶11} This court has not specifically addressed this issue. But in State v.

Harper, 47 Ohio App.3d 109, 111-112, 547 N.E.2d 395 (1st Dist.1988), we held that the

trial court’s failure to accept a no-contest plea was an abuse of discretion because the

colloquy indicated that the court had participated in plea bargaining. We also stated

that the colloquy showed that the trial court had not wished to accept a no-contest plea



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to prevent the defendant from exercising his right to appeal and that the trial court had

abused its discretion by basing its decision whether to accept a no-contest plea “upon

such inappropriate considerations.” Id. at 112. We further stated that “we find that by

repeatedly advising the defendant that any plea agreement must be based on a guilty

plea, the court adversely affected the voluntariness of defendant’s eventual decision to

plead guilty.” Id.

       {¶12} Thus, there is little doubt that a trial court’s blanket policy to refuse to

accept no-contest pleas is error. The question in this case is whether that error was

preserved for appeal. Beasley’s counsel stated that she would have entered a no-contest

plea, but for the trial court’s blanket policy against accepting such pleas. He referred to a

conference in chambers that is not part of the record on appeal, and there is no other

indication in the record of what occurred. This court cannot add matter to the record

that was not part of the trial court’s proceedings and decide the appeal on the basis of

the new matter. State v. Hamilton, 1st Dist. Hamilton No. C-140290, 2015-Ohio-334, ¶

15, citing State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978).

       {¶13} Further, despite Beasley’s statement for the record, Beasley never

attempted to plead no-contest. We believe it is incumbent on the defendant to enter the

no-contest plea and have the trial court refuse to accept the plea on the record.

Immediately after the recitation of facts, Beasley entered a guilty plea. Under the

circumstances, Beasley forfeited her right to raise the issue on appeal. See State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. Consequently, we

overrule Beasley’s sole assignment of error and affirm the trial court’s judgment.

                                                                       Judgment affirmed.

S TAUTBERG , J., concurs.
F ISCHER , P.J., dissents.




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                       OHIO FIRST DISTRICT COURT OF APPEALS


F ISCHER , P.J., dissenting.
       {¶14} I respectfully dissent. I agree with the majority that a trial court’s

implementaton of a blanket policy of refusing to accept no-contest pleas is improper.

But I disgree with the conclusion that Beasley failed to preserve the error for appeal.

       {¶15} Beasley’s counsel noted twice on the record that she wished to plead

no contest to preserve her right to appeal the trial court’s denial of her motion to

suppress, but that in chambers the court had stated it had a blanket policy against

accepting no-contest pleas.       The trial court not only did not contradict that

statement, it concurred: “I see what you are saying. Okay. All right. Anything from

the State regarding that?” If counsel’s assertion was incorrect, the trial court would

have so stated.

       {¶16} Further, the state then did not contradict Beasley’s statement. Her

counsel specifically stated that the state had agreed to let her plead no contest and

that the court had a blanket policy against accepting such pleas. When given the

opportunity, the state did not indicate that counsel’s statement was incorrect in any

way.

       {¶17}      Both defense counsel and the assistant prosecuting attorney are well-

qualified and excellent lawyers, who are known to follow the rules of court. The

Comments to Prof.Cond.R. 3.3, entitled “Candor to the Tribunal,” specifically state:

       [T]the lawyer must not allow the tribunal to be misled by false

       statements of law or fact or evidence that the lawyer knows to be false.

       * * * [A]n assertion purporting to be on the lawyer’s own knowledge,

       as in an affidavit by the lawyer or a statement in open court, may

       properly be made only when the lawyer knows the assertion is true or

       believes it to be true on the basis of a reasonably diligent inquiry.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



(Emphasis added.) Prof.Cond.R. 3.3, Comments 2 and 3.

        {¶18} So I presume that both lawyers, as part of regular procedure, followed

these exhortations, and properly and correctly reported what had occurred in

chambers. If the information was untrue, good lawyers like these would not have

placed it in or agreed to it on the record. Therefore, I am required, as a matter of

ethics, to accept their statements as accurate representations and, effectively, an

undisputed stipulation as to the events in chambers.

        {¶19} Thus, I see no valid reason to require Beasley to enter a no-contest

plea on the record when it is clear that doing so would have been futile. The law does

not require a vain or useless act. Scanlon v. Scanlon, 8th Dist. Cuyahoga Nos. 99028

and 99052, 2013-Ohio-2694, ¶ 17; Showe Mgmt. Corp. v. Moore, 5th Dist. Licking

No. 08 CA 10, 2009-Ohio-2312, ¶ 42.

        {¶20} I would hold that the trial court abused its discretion in refusing to

accept Beasley’s no-contest plea based on a blanket policy, a policy stated and then

reiterated on the record without any objection or contradiction by the trial court or

two officers of the court, and that therefore, Beasley was prejudiced as she was

denied the right to appeal the denial of her motion to suppress. (I take no position as

to the merits of that motion.)       Consequently, I would reverse the trial court’s

judgment and remand the matter to the trial court to allow Beasley to enter a new

plea, or go to trial.



Please note:
        The court has recorded its own entry this date.




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