[Cite as State v. Hubbs, 196 Ohio App.3d 682, 2011-Ohio-6152.]




                          STATE OF OHIO, COLUMBIANA COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


THE STATE OF OHIO,                               )
                                                 )        CASE NO.     09 CO 24
        APPELLEE,                                )
                                                 )
        V.                                       )        OPINION
                                                 )
HUBBS,                                           )
                                                 )
        APPELLANT                        .       )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 08CR68.


JUDGMENT:                                             Reversed and Remanded (Prior decision
                                                      of this Court Upheld).


APPEARANCES:
                                                      Robert Herron,
                                                      Columbiana County Prosecuting Attorney,
                                                      And Tammie Riley Jones,
                                                      Assistant Prosecuting Attorney,
                                                      For appellee.


                                                      Bryan Felmet, for appellant.


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

                                                                     Dated: November 28, 2011
VUKOVICH, Judge.

       {¶ 1} Defendant-appellant, Thomas Hubbs, appealed the decision of the

Columbiana County Common Pleas Court, finding him guilty of one count of driving

under the influence (“DUI”) in violation of R.C. 4511.19(A)(1)(i). Counsel for Hubbs

filed no merit brief and requested leave to withdraw.

       {¶ 2} On September 29, 2010, this court found that there was an appealable

issue, and based on the Supreme Court’s decision in Elevators Mut. Ins. Co. v. J.

Patrick O’Flaherty’s, 125 Ohio St.3d 362, 2010-Ohio-1043, we vacated the no-contest

plea and conviction and remanded the matter to the trial court for further proceedings.

State v. Hubbs, 7th Dist. No. 09CO24, 2010-Ohio-4849 (Hubbs I). The state appealed

our decision to the Supreme Court on the basis that it was not given the opportunity to

brief the appealable issue prior to this court’s ruling on it. The Supreme Court did not

accept the appeal for review. State v. Hubbs, 128 Ohio St.3d 1411, 2011-Ohio-828.

       {¶ 3} Following the Supreme Court’s refusal to accept the appeal, the state

filed a delayed motion for reconsideration. We granted the motion in the interests of

justice and complete review; however, we noted that the state should be more diligent

in filing its motions for reconsideration in a timely manner. We then instructed counsel

for each party to brief the following issue:

       {¶ 4} “Is the Ohio Supreme Court’s decision in Elevators Mut. Ins. Co. v. J.

Patrick O’Flaherty’s, 125 Ohio St.3d 362, 2010-Ohio-1043, applicable in this case?

Furthermore, if it is applicable does that decision support the conclusion that a

misdemeanor conviction (failure to control) that resulted from a no contest plea is

admissible in the proceedings for the felony charge (DUI) when the two charges arose

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from the same incident but were tried separately, with the misdemeanor charge being

resolved first in municipal court?”

       {¶ 5} The parties filed their respective briefs, and accordingly, we are now

asked to decide whether we agree with our decision in Hubbs I.

                                        ANALYSIS
       {¶ 6} In Hubbs I, 2010-Ohio-4849, we explained the relevance and application

of Elevators as follows:

       {¶ 7} “Crim.R. 11(B)(2) states that a no contest plea ‘shall not be used against

the defendant in any subsequent civil or criminal proceeding.’           Similarly, Evid.R.

410(A)(2) provides that a no contest plea is not admissible in ‘any civil or criminal

proceeding against the defendant who made the plea.’

       {¶ 8} “While the language of these rules focus[es] on the no contest plea and

not the conviction that resulted from the no contest plea, the Ohio Supreme Court has

recently held that these rules also prevent the use of convictions based on no contest

pleas. Elevators Mut. Ins. Co. v. J. Patrick O'Flaherty's, 125 Ohio St.3d 362, 2010–

Ohio 1043, ¶ 14. It provided the following reason for coming to that conclusion:

       {¶ 9} “ ‘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.E2d 140]; 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

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from the criminal acts underlying the plea. Allstate Ins. Co. v. Simansky (1998), 45

Conn.Supp. 623, 628, 738 A.2d 231. The plain language of Evid.R. 410(A) prohibits

admission of a no contest plea, and the prohibition must likewise apply to the resulting

conviction. To find otherwise would thwart the underlying purpose of the rule and fail

to preserve the essential nature of the no contest plea.’ Id.

       {¶ 10} “Based on the above rules and case law, we disagree with the trial

court's holding that the misdemeanor conviction from the no contest was admissible in

the proceedings for the felony charges. The fact that the misdemeanor and felony

charges arose from the same transaction does not constitute a reason to disregard the

aforementioned court cases as well as the clear language set forth in the rules of

evidence and criminal procedure. The focus in the rules and in Elevators is that the no

contest plea and conviction resulting from that plea cannot be used in any action.

There is no distinction in either the rules or the case law between pleas entered in

proceedings arising out of the same incident and those arising out of separate

incidents. Consequently, the trial court erred in failing to suppress the misdemeanor

failure to control conviction.” (Boldface sic.) Hubbs I, 2010-Ohio-4849, at ¶ 22-25.

       {¶ 11} Admittedly, Elevators is a civil case where the no-contest plea from the

criminal conviction was being sought to be used to prove an element of the civil claim.

The fact that it was a civil case does not make the above reasoning inapplicable.

Rather, it provides greater support for the position that it is applicable. A criminal

defendant faces the potential loss of his personal liberty and therefore has much more

at stake than a civil litigant who is asserting or contesting a claim for damages. For

that reason, the law typically affords greater protection to the criminal defendant and



                                            4
his rights. Thus, since Evid.R. 410 and Crim.R. 11 prevent the introduction of a no-

contest plea in any subsequent proceeding, the fact that the Ohio Supreme Court in a

civil case stated that the conviction based on a no-contest plea is likewise barred from

admission does not hinder its application to a criminal defendant in a criminal

proceeding.

      {¶ 12} Furthermore, we note that if we were to find that the failure to control

conviction based on a no-contest plea could be legally used in the DUI offense to

prove that Hubbs was the driver because it arose from the same transaction, we would

be carving out an exception to the effect of a no-contest plea—i.e., that it cannot be

used against the person in a subsequent proceeding. This potential exception is not

found in Crim.R. 11, Evid.R. 410, or case law. If we were to create this exception, we

would be adding words to Crim.R. 11 and/or Evid.R. 410 because we would be

qualifying the word “any” as used in both aforementioned rules. Likewise, judicial

creation of an exception could potentially affect a defendant’s ability to enter a plea

knowingly. For instance, if Hubbs was not advised prior to entering his no-contest plea

to the failure-to-control charge that that conviction could be used against him in the

proceedings for the DUI that arose from the same transaction, his plea to the failure-

to-control charge most likely would not be entered into knowingly because of the

impact it would have on the DUI charge. The conviction for failure to control effectually

proves an element of the DUI charge–that Hubbs was driving.

      {¶ 13} Along this same vein, we note that because the failure to control and the

DUI arose out of the same transaction, the prosecutor could have tried these cases

together. It is unclear from the record why bifurcation occurred. Plausibly it was the



                                           5
prosecutor’s intention to attempt to use the failure-to-control conviction as a means to

prove an element of the DUI offense. However, as explained above, such an action is

fraught with potential to violate a defendant’s rights. Thus, we cannot condone such

an action, especially in light of the Supreme Court’s decision in Elevators.

       {¶ 14} Accordingly, even after reviewing the parties’ arguments, we find that our

decision in Hubbs I stands. Therefore, “[t]he suppression ruling is reversed, the plea

and sentence is vacated and the cause is remanded to the trial court for further

proceedings.” Hubbs I, 2010-Ohio-4849 at ¶ 30.



                                                                     Judgment affirmed.


       DONOFRIO and DEGENARO, JJ., concur.




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