[Cite as State v. Leffler, 2019-Ohio-3964.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                 COLUMBIANA COUNTY

                                              STATE OF OHIO,

                                              Plaintiff-Appellee,

                                                      v.

                                          JOAH L. LEFFLER,

                                         Defendant-Appellant.


                         OPINION AND JUDGMENT ENTRY
                                          Case No. 18 CO 0032


                                      Criminal Appeal from the
                            Municipal Court of Columbiana County, Ohio
                                     Case No. 2017 TRC 6890

                                         BEFORE:
                 Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges.


                                                 JUDGMENT:
                                                   Affirmed.


 Atty. Robert L. Herron, Prosecuting Attorney, Atty. Alec A. Beech, Assistant Prosecuting
 Attorney, Columbiana County Prosecutors Office, 105 South Market Street, Lisbon,
 Ohio 44432, for Plaintiff-Appellee and
 Atty. Dominic A. Frank, Betras, Kopp & Harshman, LLC, 1717 Lisbon Street, East
 Liverpool, Ohio 43920, for Defendant-Appellant.
                                                                                      –2–


                              Dated: September 24, 2019


 Robb, J.

       {¶1}   Defendant-Appellant Joah Leffler appeals the decision of the Columbiana
County Municipal Court denying his motion to suppress and his convictions. The issues
in this appeal are whether there was a reasonable articulable suspicion for the stop,
whether there was probable cause for the arrest, whether his statement to the trooper
during the stop had to be suppressed, and whether there was evidence he operated the
vehicle without wearing a seatbelt. For the reasons expressed below, none of these
issues have merit. The convictions and trial court’s denial of the motion to suppress are
affirmed.
                                 Statement of Facts and Case
       {¶2}   On September 16, 2017 at 2:34 a.m., Appellant was stopped by Trooper
English on State Route 7 in Yellow Creek Township, Columbiana County, Ohio driving a
2010 Hyundai. Appellant was cited for driving under the influence with priors and with
refusal to submit to testing in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2),
driving with a suspended license in violation of R.C. 4510.04, failure to wear a seat belt
in violation of R.C. 4513.263(B), and failure to have the rear license plate illuminated in
violation of R.C. 4513.05.
       {¶3}   Following his not guilty plea and motions for discovery, Appellant filed a
motion to suppress. 5/8/18 Motion to Suppress. He asserted there was no reasonable
articulable suspicion to stop his vehicle, there was no probable cause for his arrest, and
any statements made to the trooper were in violation of his Fifth and Sixth Amendment
rights. 5/8/18 Motion to Suppress.
       {¶4}   A hearing was held and Trooper English testified about why he stopped the
vehicle driven by Appellant, and about what transpired during the stop. 5/31/18 Hearing.
       {¶5}   The trial court denied the motion to suppress. 6/21/18 J.E. The court found
there was a reasonable articulable suspicion to make the stop because the officer testified
the license plate light failed to provide illumination so that the plate is legible from a
distance of fifty feet. 6/21/18 J.E. The court also found that there was probable cause
for the arrest based on the officer observing Appellant’s slurred speech, failure to make


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eye contact, glassy and bloodshot eyes, odor of alcohol from the vehicle and from
Appellant, admission to having consumed three or four beers, and refusal of field sobriety
tests. 6/21/18 J.E. As to the statements, concerning the consumption of beers, the trial
court found no merit with the assertion that the statements were made during a custodial
interrogation. 6/21/18 J.E.
       {¶6}   Following plea negotiations, Appellant entered a no contest plea preserving
his right to appeal the suppression ruling. 9/18/18 J.E. The state dismissed the license
plate illumination, R.C. 4513.05, charge. 9/18/18 J.E. Appellant was found guilty of the
remaining offenses. 9/18/18 J.E. He was sentenced to 180 days for driving while
impaired with prior refusal and 180 days for driving under suspension. 9/18/18 J.E. Part
of this sentence was suspended and he was sentenced to two years of probation. 9/18/18
J.E. The sentences were ordered to run concurrent. 9/18/18 J.E. He was fined an
aggregate amount of $1,130.00 - $850.00 for the OVI, $250.00 for the driving under
suspension, and $30.00 for the seat belt violation. 9/18/18 J.E. Additionally, his driver’s
license was suspended for two years. 9/18/18 J.E.
       {¶7}   Appellant timely appealed the conviction and suppression ruling. The trial
court stayed the sentence pending appeal. 10/18/18 J.E.
                                 Suppression Standard of Review
                              for the First Three Assignments of Error

       {¶8}   The first three assignments of error address the trial court’s denial of the
motion to suppress. Appellate review of a ruling on a motion to suppress involves mixed
questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797
N.E.2d 71, ¶ 8. As the trial court is best suited to evaluate witness credibility, an appellate
court must uphold the findings of fact if they are supported by competent, credible
evidence. Id. However, an appellate court must independently determine as a matter of
law whether the trial court met the applicable legal standard. Id. With that standard in
mind we review the first three assignments of error.
                                     First Assignment of Error
       “The trial court erred to the prejudice of the Appellant when it overruled his motion
to suppress and found the Trooper had reasonable articulable suspicion to initiate a traffic
stop of the Appellant’s vehicle.”


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      {¶9}     An officer's decision to stop a motorist is constitutionally valid if the officer
has a reasonable and articulable suspicion that the motorist has committed or is about to
commit a crime:

      The Fourth Amendment to the United States Constitution and Section 14,
      Article I of the Ohio Constitution guarantee the right to be free from
      unreasonable searches and seizures. State v. Orr (2001), 91 Ohio St.3d
      389, 391, 745 N.E.2d 1036. The United States Supreme Court has stated
      that a traffic stop is constitutionally valid if an officer has a reasonable and
      articulable suspicion that a motorist has committed, is committing, or is
      about to commit a crime. Delaware v. Prouse (1979), 440 U.S. 648, 663, 99
      S.Ct. 1391, 59 L.Ed.2d 660; Berkemer v. McCarty (1984), 468 U.S. 420,
      439, 104 S.Ct. 3138, 82 L.Ed.2d 317, quoting United States v. Brignoni–
      Ponce (1975), 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607. Further,
      “[t]he propriety of an investigative stop by a police officer must be viewed in
      light of the totality of the surrounding circumstances.” State v. Freeman
      (1980), 64 Ohio St.2d 291, 18 O.O.3d 472, 414 N.E.2d 1044, at paragraph
      one of the syllabus.

      Therefore, if an officer's decision to stop a motorist for a criminal violation,
      including a traffic violation, is prompted by a reasonable and articulable
      suspicion considering all the circumstances, then the stop is constitutionally
      valid.
State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7-8.
      {¶10} Even a minor traffic violation constitutes reasonable articulable suspicion.
State v. Levine, 4th Dist. Washington No. 18CA19, 2019-Ohio-265, ¶ 12; State v. Hoover,
5th Dist. Licking No. 18 CA 39, 2018-Ohio-4736, ¶ 16; State v. Fickert, 2d Dist. Clark No.
2018-CA-15, 2018-Ohio-4349, ¶ 13; State v. Dotson, 2018-Ohio-2481, 114 N.E.3d 390,
¶ 25 (7th Dist.); State v. Slaughter, 1st Dist. Hamilton Nos. C-170110, C-170111, C-
170112, 2018-Ohio-105, ¶ 11; State v. Meyers, 11th Dist. Lake Nos. 2013-L-042, 2013-
L-043, 2014-Ohio-1357, ¶ 25; State v. Calimeno, 8th Dist. Cuyahoga No. 98376, 2013-
Ohio-1177, ¶ 35; State v. Powers, 6th Dist. Lucas No. L-04-1210, 2005-Ohio-5737, ¶ 15.



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       {¶11} The trooper’s reason for the stop was an unilluminated license plate in
violation of R.C. 4513.05. That statutes provides:

       Either a tail light or a separate light shall be so constructed and placed as
       to illuminate with a white light the rear registration plate, when such
       registration plate is required, and render it legible from a distance of fifty
       feet to the rear. Any tail light, together with any separate light for illuminating
       the rear registration plate, shall be so wired as to be lighted whenever the
       headlights or auxiliary driving lights are lighted, except where separate
       lighting systems are provided for trailers for the purpose of illuminating such
       registration plate.

R.C. 4513.05(A).
       {¶12} Violation of that section of the statute is a minor misdemeanor.                R.C.
4513.05(B).    Appellant contends given the trooper’s testimony it would have been
impossible for the trooper to determine whether the rear license plate light was properly
working prior to the stop. He also asserts the trooper failed to inspect the light after the
stop to verify whether it was working properly.
       {¶13} When asked why he stopped Appellant, Trooper English indicated the stop
was initiated because of the failure to illuminate the rear license plate. Suppression Tr.
7.   He testified he was not able to see the license plate to run through LEADS.
Suppression Tr. 7. He further explained “there was no light at all for the license plate”
and the first time he noticed there was no rear license plate light was when he was about
two car lengths away. Suppression Tr. 7, 9. On cross examination, he was asked:

       Q. You could see that it was lit up. You could see that there was a license
       plate whether there was lights or anything else?

       A. No, sir, I could not see that it was lit up.

Suppression Tr. 19.
       {¶14} He was asked whether he inspected the light more closely when he
approached the vehicle. Suppression Tr. 8. He admitted he did not inspect the license
plate light, but as he approached the vehicle he “did double look at the rear license plate


Case No. 18 CO 0032
                                                                                        –6–


and radioed dispatch the license plate, after I exited my patrol car.” Suppression Tr. 8.
He restated there was no license plate light and stated he double checked it to see if the
license plate was illuminated when he exited his cruiser. Suppression Tr. 8-9. On cross
examination he was asked:


         Q. Did you get down and look at it?


         A. I did not get down and look at it.


         Q.   So when you exited your vehicle, isn’t it true that your vehicle’s
         headlights were on this, the flashlight was on this, and you were just
         standing there looking at it; would you agree that that’s what the video
         shows?
         A. Yes, it shows my headlights.


         Q. At no point in time did you get down and really look at the light to make
         a determination if the light was not functioning; is that fair to say?


         A. Yes, sir.


Suppression Tr. 20.

         {¶15} This testimony, if believed, established that the license plate light was not
working and although the trooper did not get down and examine the light, he did relook
at the license plate to determine if the light was working.
         {¶16} The issue is a credibility issue. The trial court was in the best position to
determine credibility and we will not second guess the trial court’s decision. Accordingly,
given our standard of review and the testimony there is no merit with this assignment of
error.




Case No. 18 CO 0032
                                                                                       –7–


                                   Second Assignment of Error
       “The trial court erred to the prejudice of the Appellant when it overruled his motion
to suppress and found the Trooper had probable cause to arrest Appellant for operating
a motor vehicle under the influence (OVI).”
       {¶17} An arrest without a warrant violates the Fourth Amendment unless the
arresting officer has probable cause to make the arrest. The test for probable cause to
justify an arrest is “whether at that moment the facts and circumstances within [the
officer's] knowledge and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the [arrestee] had committed or was
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223 (1964). “The
standard for determining whether there was probable cause to arrest for OVI is whether,
at the moment of arrest, the police had sufficient information, derived from a reasonably
trustworthy source of facts and circumstances, sufficient to cause a prudent person to
believe that the suspect was driving under the influence.” State v. Bish, 191 Ohio App.3d
661, 674, 2010–Ohio–6604, 947 N.E.2d 257, ¶ 47 (7th Dist.) “That determination is based
on the totality of the facts and circumstances surrounding the arrest.” Id.
       {¶18} It is undisputed in this case that the trooper did not know Appellant was
driving under suspension until after the arrest. Thus, the fact that Appellant was driving
with a suspended license was not the basis for the arrest. The basis for the arrest was
driving while impaired and refusal to submit to field sobriety tests; however, Trooper
English admitted he did not observe any erratic driving. On redirect examination, the
prosecutor concisely questioned Trooper English on the basis for the arrest:


       Q. * * * So we’ll get to indicators of impairment. Number one was, failed to
       give you all the requested information; is that right?

       A. Yes, sir.


       Q. Number two, he wouldn’t make eye contact with you; is that correct?


       A. Yes, sir.




Case No. 18 CO 0032
                                                                                      –8–


       Q. Okay. Number three, he had bloodshot and glassy eyes; is that
       correct?

       A. Yes, sir.

       Q. Okay. Number four, he admitted to you on two separate occasions
       that he had drank beer that night; is that correct?

       A. Yes, sir.

       Q. Number five, an odor of alcoholic beverage coming from the car; is
       that correct?

       A. Yes, sir.

       Q. And number six, an odor of alcoholic beverage coming from his
       person; is that correct?

       A. Yes, sir.

       Q. Okay. Number seven, he refused all field sobriety tests; is that correct?

       A. Correct.

       Q. Okay. Is it true that he admitted to you that he drank alcohol prior to
       your pat down search?

       A. Yes, sir.

       Q. And is it true that he again admitted to you that he drank alcohol prior
       to driving after the pat down search?

       A. Yes, sir.

Suppression Tr. 30-31.


       {¶19} The issue in this case is whether these facts are sufficient for probable
cause for the arrest.




Case No. 18 CO 0032
                                                                                          –9–


       {¶20} The Eleventh Appellate District has stated the odor of alcohol, glassy eyes,
slurred speech, and other indicia of alcohol use by a driver are, in and of themselves,
insufficient to constitute probable cause to arrest. Kirtland Hills v. Deir, 11th Dist. Lake
No. 2004-L-005, 2005-Ohio-1563, ¶ 16. However, they are factors to be considered in
determining the existence of probable cause. Id. The Second Appellate District likewise
has held that the strong odor of alcohol in conjunction with an admission to consuming
alcohol is not enough to establish probable cause. State v. Berry, 2d Dist. Montgomery
No. 28199, 2019-Ohio-1254, ¶ 27-28. See also State v. Swartz, 2d Dist. Miami No. 2008
CA 31, 2009-Ohio-902, ¶ 14 and 16 (“de minimis traffic violation, coupled with glassy,
bloodshot eyes and an unspecified odor of alcohol is insufficient justification to conduct
field sobriety tests”).
       {¶21} We have agreed with other courts that there is no probable cause to arrest
for operating a vehicle under the influence when “the only basis for arresting the
defendant was the appearance of being intoxicated,” such as an odor of alcohol or glassy
eyes. State v. Billiter, 7th Dist. Monroe No. 10 MO 5, 2012-Ohio-4551, ¶ 11 quoting State
v. Blake, 7th Dist. Columbiana No. 01 CO 44, 2002–Ohio–5221, ¶ 38. Nevertheless, our
district has stated that erratic driving, masking the odor of alcohol with cigarette smoke,
avoiding eye contact with the officer, and refusing to take field sobriety tests were
sufficient to constitute probable cause. State v. Wardle, 7th Dist. Mahoning No. 16 MA
0150, 2017-Ohio-9238, ¶ 14. Other factors that have been held to establish probable
cause for arrest are: “erratic driving, driving left of center at least three times, stopping at
an intersection for a prolonged period of time, smell of an alcoholic beverage on the
person or breath, failure to notice police car flashers, slurred speech, bloodshot eyes, and
impairment of physical abilities.” State v. Akers, 2016-Ohio-7216, 72 N.E.3d 135, ¶ 37
(7th Dist.). Furthermore, we have explicitly explained that the refusal to take the field
sobriety tests can be factored into the probable-cause analysis. State v. Derov, 7th Dist.
Mahoning No. 08 MA 189, 2009–Ohio–4810, ¶ 17.
       {¶22} As set forth above, the stop occurred at approximately 2:30 a.m.
Suppression Tr. 6. The trooper did not observe erratic driving; the stop was for a minor
traffic violation. Suppression Tr. 18. It took Appellant a while to find registration and proof
of insurance but this was not his vehicle and Trooper English acknowledged that might



Case No. 18 CO 0032
                                                                                       – 10 –


have been the reason it took him awhile to find those documents. Suppression Tr. 21.
Appellant avoided eye contact with Trooper English; Trooper English stated this indicated
to him that Appellant was trying to hide or conceal something. Suppression Tr. 11. The
trooper also noticed a strong odor of alcohol emitting from the vehicle and when he asked
Appellant to exit the vehicle the trooper detected a strong odor of alcohol emitting from
Appellant’s person. Suppression Tr. 11. The trooper also noticed slurred speech and
bloodshot, glassy eyes. Suppression Tr. 10, 22. Trooper English asked Appellant twice
if he had been drinking, once when he was in the vehicle prior to the pat down and once
thereafter, to which he answered affirmatively. Suppression Tr. 11, 31. Appellant also
refused to submit to field sobriety tests and chemical testing. Suppression Tr. 12, 15.
       {¶23} Given all the facts, there was probable cause for the arrest. The time of the
stop, the act of trying to avoid eye contact, the strong odor of alcohol emanating from
Appellant’s person and the vehicle, the admission of drinking beer, slurred speech, the
refusal to submit to chemical or field sobriety testing, and glassy, bloodshot eyes are
sufficient factors to constitute probable cause. This assignment of error is meritless.
                                    Third Assignment of Error
       “The trial court erred to the prejudice of the Appellant when if found the statements
made by Appellant were admissible.”
       {¶24} During the stop Trooper English twice asked Appellant whether he had
consumed any alcohol. The first question occurred while Appellant was still in his vehicle
and the second question occurred while Appellant was in the back seat of the cruiser, but
before he was placed in handcuffs and arrested. Appellant responded both times that he
had about three or four beers. Suppression Tr. 11, 25. Appellant moved to suppress that
statement claiming he should have been Mirandized prior to questions about consuming
alcohol.   Following the hearing, the trial court denied the request to suppress the
statement.
       {¶25} The facts as set forth in the suppression transcript indicate after stopping
Appellant for a minor traffic violation, Trooper English asked for Appellant’s identification,
registration, and insurance information. Trooper English also asked Appellant if he had
consumed any alcohol to which Appellant responded that he had drank about three or
four beers. Suppression Tr. 11. Following that answer and after observing Appellant’s



Case No. 18 CO 0032
                                                                                     – 11 –


slurred speech, his glassy bloodshot eyes, and the odor of alcohol emanating from the
vehicle, the trooper asked Appellant if he would consent to a pat down and asked him to
exit the vehicle. Suppression Tr. 24. Appellant consented to the pat down and exited the
vehicle. Suppression Tr. 24. The trooper then directed Appellant to the back seat of his
cruiser, but did not handcuff Appellant. Suppression Tr. 24. While in the cruiser, Trooper
English questioned Appellant again about his use of alcohol and Appellant responded he
had about three or four beers. Suppression Tr. 25. Prior to that questioning, Trooper
English did not Mirandize Appellant. Suppression Tr. 25. Appellant was then asked if he
would submit to a field sobriety test and he declined. Suppression Tr. 25. It was then
that Appellant was handcuffed, arrested, and Mirandized. Suppression Tr. 25.
       {¶26} A motorist temporarily detained as the subject of an ordinary traffic stop is
not “in custody” for purposes of Miranda. State v. Farris, 109 Ohio St.3d 519, 2006–
Ohio–3255, 849 N.E.2d 985, ¶ 13, citing Berkemer v. McCarty, 468 U.S. 420, 440, 104
S.Ct. 3138 (1984). However, if the motorist “thereafter is subjected to treatment that
renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of
protections prescribed by Miranda.” Id., quoting Berkemer at 440. “The ‘only relevant
inquiry’ in determining whether a person is in custody is ‘how a reasonable man in the
suspect's position would have understood his situation.’” Id. at ¶ 14, quoting Berkemer at
442.
       {¶27} The first time Appellant was asked about his consumption of alcohol he was
seated in the vehicle he was driving and it was during the nonmoving violation stop. There
is no suggestion in the record that at that point this stop was anything other than an
ordinary traffic stop which means he was not in custody for purposes of Miranda.
Therefore, there is no basis to suppress Appellant’s response that he had consumed
three or four beers.
       {¶28} The second time Appellant was asked about his consumption of alcohol he
was in the back seat of the cruiser. From the record before this court, it appears the
questions and answers were essentially the same.         Therefore, even if we were to
conclude that the second questioning constituted a custodial interrogation and the answer
had to be suppressed, that same answer is already admissible in regards to the
questioning that occurred immediately after the stop.



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       {¶29} Regardless, the second question regarding consumption of alcohol did not
occur during a custodial interrogation. The facts indicate that although Appellant had
been patted down and was seated in the backseat of the cruiser when the second
questioning occurred, he was not handcuffed, nor under arrest.
       {¶30} The Third Appellate District has held that the person is not in custody when
they are patted down and placed in the back seat of the patrol car for safety purposes.
State v. Heimberger, 3d Dist. Marion No. 9-17-45, 2018-Ohio-3001, ¶ 19. In that case,
the person was not handcuffed and was not under arrest. Id. However, before placing
the person in the patrol car, the trooper told her, “have a seat in my patrol car so I can
move your vehicle off the roadway.” Id. These facts led to the conclusion the placement
in the car was for safety purposes and therefore, questions and statements were made
prior to being placed into custody. Id.
       {¶31} Similarly, the Eighth Appellate District concluded that a person is not in
custody when that person was placed in the front passenger seat of a cruiser without a
patdown search and without taking the person’s car keys. State v. Leonard, 1st Dist.
Hamilton No. C-060595, 2007-Ohio-3312, ¶ 22. The subject was not handcuffed and not
subjected to a lengthy detention. Id. Thus, a reasonable person in that position would
have understood they were not in police custody for practical purposes and as such, any
statements obtained during that period were not obtained in violation of Miranda. Id. at ¶
23.
       {¶32} Considering the facts at hand, although Appellant was patted down and
placed in the back seat of the patrol car, no statement was obtained in violation of
Miranda. This stop occurred at 2:30 a.m. Considering how dark it is outside, it is
advisable that conversations between the officer and the person being stopped should
probably occur in the confines of a vehicle. Furthermore, the pat down was consensual
and it was done for officer safety for placement in his cruiser.      Appellant was not
handcuffed at that point and there is no suggestion that the keys to the vehicle he was
driving were taken away from him or taken from the vehicle. Therefore, a reasonable
person in this position would have understood they were not in police custody.
       {¶33} For those reasons, this assignment of error lacks merit; Appellant’s
admissions to consuming three or four beers was not obtained in violation of Miranda.



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                                    Fourth Assignment of Error
       “The trial court erred to the prejudice of the Appellant when it found Appellant guilty
of a seatbelt infraction.”
       {¶34} This assignment of error is not governed by the suppression standard of
review. Appellant contends the trial court erred when it found him guilty of the seatbelt
infraction. Appellant supports this position by citing to the trooper’s testimony that he was
not able to tell if Appellant had his seatbelt on when he was driving. Suppression Tr. 28.
Trooper English testified the only time he observed Appellant without his seatbelt on was
after he stopped the vehicle. Suppression Tr. 28. Consequently, Appellant contends the
testimony does not support the determination that he was guilty of a seatbelt infraction.
The argument presented in this assignment of error either constitutes a manifest weight
of the evidence argument or a sufficiency of the evidence argument.
       {¶35} Any manifest weight of the evidence argument, however, fails. Appellant
pled no contest. A defendant who pleads no contest cannot assign as error that his
conviction, based on the plea, was against the manifest weight of the evidence. State v.
Cole, 2d Dist. Montgomery No. 26576, 2015-Ohio-5295, ¶ 31; Cleveland v. Meehan, 8th
Dist. Cuyahoga No. 100202, 2014-Ohio-2265, ¶ 13; State v. Hoopingarner, 5th Dist.
Tuscarawas No. 10AP080030, 2011–Ohio–3040, ¶ 8. This is because a conviction
following a no contest plea does not derive from evidence adduced at trial, but from the
no contest plea itself, which is an admission of the truth of the facts alleged in the
indictment. State v. Hall, 2d Dist. Montgomery No. 23488, 2009–Ohio–6390, ¶ 27, citing
Crim.R. 11(B)(2).
       {¶36} That said, a limited sufficiency of the evidence review is available when a
defendant pleads no contest. The Second Appellate District has stated, “With respect to
the sufficiency of the evidence, a no contest plea is an admission to the facts as laid out
at the plea hearing; the trial court retains discretion to consider a defendant's contention
that the admitted facts do not constitute the charged offense, but the defendant who
pleads no contest waives the right to present additional affirmative factual allegations to
prove that he is not guilty of the charged offense.” State v. Cole, 2d Dist. Montgomery
No. 26576, 2015-Ohio-5295, ¶ 32. The Third and Ninth Appellate District have similarly
stated that a no contest plea forecloses one’s ability to challenge the sufficiency of the



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evidence provided the indictment was sufficient. State v. Hernandez, 3d Dist. Defiance
Nos. 4-16-27, 4-16-28, 2017-Ohio-2797, ¶ 15; State v. Mason, 9th Dist. Summit No.
27715, 2016-Ohio-7081, ¶ 29-35. The Eighth Appellate District has aptly explained:

       Where a defendant charged with a crime enters a plea of no contest to the
       complaint, indictment, or information, sufficiency of the evidence is not an
       issue for either the trial court or an appellate court. Rather, the issue is
       whether the facts alleged in the complaint or the indictment state a crime. If
       the answer to the question is in the affirmative, both trial and appellate
       inquiry cease.

State v. Baumgartner, 8th Dist. Cuyahoga Nos. 89190, 91207, 91208, 2009-Ohio-624, ¶
15.
       {¶37} Consequently, agreeing with the rulings of our sister districts, we hold that
by entering a no contest plea, Appellant limited our review to the complaint, i.e., the ticket.
The ticket and affidavit attached indicate Appellant was charged with a seat belt violation;
there is no other information regarding that charge in these two documents. Appellant
signed a waiver of rights with his plea agreement. 9/18/18 Waiver of Rights upon Plea.
That document stated, “If I enter a plea of No Contest, I agree that the Judge shall
consider the ticket of the complaint and affidavit. I also acknowledge that a plea of No
Contest is not an admission of guilty, but is an admission of the truth of the facts alleged
in the complaint or citation * * *.” 9/18/19 Waiver of Rights upon Plea. This was sufficient
for a finding of guilt on the seat belt violation.
       {¶38} There is no merit with this assignment of error.
                                              Conclusion
       {¶39} For the reasons expressed above, all assignments of error lack merit. The
trial court’s suppression ruling and Appellant’s convictions are affirmed.

Waite, P.J., concurs.

D’Apolito, J., concurs.




Case No. 18 CO 0032
[Cite as State v. Leffler, 2019-Ohio-3964.]




          For the reasons stated in the Opinion rendered herein, the assignments of
 error are overruled and it is the final judgment and order of this Court that the
 judgment of the Municipal Court of Columbiana County, Ohio, is affirmed. Costs to
 be taxed against the Appellant.
          A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.

                                        NOTICE TO COUNSEL

          This document constitutes a final judgment entry.
