[Cite as State v. Williams, 2016-Ohio-7782.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104202



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                               ANTOINE D. WILLIAMS
                                                     DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-597808-C

        BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: November 17, 2016
ATTORNEY FOR APPELLANT

James R. Willis
1144 Rockefeller Building
614 West Superior Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John Farley Hirschauer
        Gregory J. Ochocki
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Antoine Williams, appeals his convictions. He raises

two assignments of error for our review:

       1. The court erred when it denied the pretrial motion to suppress, and in
       doing so failed to state its essential findings on the record as required by
       [Crim.R. 12(F)].

       2. The court erred and due process was denied when the court refused to
       allow the accused to plead no contest to the charges in this indictment.

       {¶2} After review, we find merit to Williams’s second assignment of error,

vacate Williams’s guilty plea, and remand for the trial court to hold a new plea hearing

with instructions for the trial court to consider the facts and circumstances of Williams’s

case before deciding whether to accept Williams’s no contest plea.

I. Procedural History and Factual Background

       {¶3} Williams was indicted on four counts, including one count of illegal

conveyance of drugs into a detention facility in violation of R.C. 2921.36(A)(2), a

third-degree felony; drug trafficking in violation of R.C. 2925.03(A)(2), a third-degree

felony, with schoolyard and forfeiture specifications; drug possession in violation of R.C.

2925.11(A), a fourth-degree felony, with forfeiture specifications; and possessing

criminal tools in violation of R.C. 2923.24(A), a fifth-degree felony, with forfeiture

specifications.
       {¶4} Williams moved to suppress evidence against him, asserting that his Fourth

Amendment rights against an unreasonable search and seizure were violated.           After a

hearing, the trial court denied his motion.

       {¶5} Williams subsequently entered a guilty plea to the indictment after the trial

court judge would not accept his plea of no contest.         The court, however, accepted

Williams’s guilty plea “with a full understanding” that the plea was conditional upon

Williams reserving the right to appeal the trial court’s denial of his motion to suppress.

       {¶6} The trial court sentenced Williams to nine months for each of the four

counts and ordered them to be served concurrent to each other for a total of nine months

in prison. It is from this judgment that Williams now appeals.

II.   Plea

       {¶7} In his second assignment of error, Williams argues that the trial court erred

when it refused to allow him to plead no contest. Because the trial court did not permit

Williams to plead no contest as a matter of policy, and not based on the facts and

circumstances of Williams’s case, we agree.

       {¶8} Pursuant to Crim.R. 11(B)(2), a

       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 and such plea or admission shall not be used against the
       defendant in any subsequent civil or criminal proceeding.

Unlike a guilty plea, a plea of no contest does not prevent the defendant from appealing

from the trial court’s ruling on a pretrial motion. Crim.R. 12(H). The trial court has

discretion to accept or reject a no contest plea.   Crim.R. 11(A).   Absent an abuse of that
discretion, the judgment of the trial court must be affirmed. See State v. Mehozonek, 8

Ohio App.3d 271, 273, 456 N.E.2d 1353 (8th Dist.1983).

       {¶9} This court has held, however, that a trial court abuses its discretion when it

rejects a plea agreement by relying on a blanket policy rather than considering the facts

and circumstances of the particular case.      State v. Fitzgerald, 188 Ohio App.3d 701,

2010-Ohio-3721, 936 N.E.2d 585, ¶ 7 (8th Dist.), citing State v. Switzer, 8th Dist.

Cuyahoga No. 93533, 2010-Ohio-2473. Other courts have held the same.            See State v.

Graves, 10th Dist. Franklin No. 98AP-272, 1998 Ohio App. LEXIS 5608 (Nov. 19, 1998)

(finding an abuse of discretion after trial court refused the defendant’s plea based upon its

blanket policy of not accepting no contest pleas); State v. Hunt, 4th Dist. Scioto No. 1536,

1985 Ohio App. LEXIS 8937 (Oct. 22, 1985) (finding abuse of discretion when the trial

court refused to accept a plea agreement because it had a policy of rejecting agreements

after jury cards were mailed to prospective jurors in a case); State v. Beasley, 1st Dist.

Hamilton No. C-150431, 2016-Ohio-1603 (“there is little doubt that a trial court’s blanket

policy to refuse to accept no-contest pleas is error”).

       {¶10} At the beginning of the plea hearing in this case, the parties advised the

court that they had reached a plea agreement.      The state and defense counsel informed

the court that Williams wished to plead no contest to the indictment. The trial court

responded, “We don’t do no contests up here. * * * He would have to plead guilty.”

Defense counsel responded that Williams would plead guilty then, but with the condition
that he could preserve his right to appeal the motion to suppress. The court responded,

“absolutely.”

       {¶11} In State v. Carter, 124 Ohio App.3d 423, 428, 706 N.E.2d 409 (2d

Dist.1997), the court explained:

              We find that the trial court’s policy of not accepting no-contest pleas
       constituted an abuse of discretion in that the trial court arbitrarily refused to
       consider the facts and circumstances presented, but instead relied on a fixed
       policy established at its whim. Although the trial court has the discretion
       to refuse to accept a no-contest plea, it must exercise its discretion based on
       the facts and circumstances before it, not on a blanket policy that affects all
       defendants regardless of their situation. In short, the trial court must
       exercise its discretion in each case. Cf. Billington v. Cotner (1972), 32
       Ohio App.2d 277, 280, 61 Ohio Op.2d 344, 290 N.E.2d 862 (“It is within
       the appellate ambit to determine that a trial judge must exercise his
       discretion though refraining from telling him how to do it.”), reversed on
       other grounds (1974), 37 Ohio St.2d 17, 20, 66 Ohio Op.2d 9, 305 N.E.2d
       805.

       {¶12} Thus, we agree with Williams that the trial court abused its discretion when

it arbitrarily rejected his no contest plea based on its blanket policy of not accepting pleas

of no contest. Williams’s second assignment of error is sustained.

       {¶13} Based on our disposition of Williams’s second assignment of error, we find

Williams’s first assignment of error to be premature.

       {¶14} Judgment reversed and remanded.         We vacate Williams’s guilty plea and

remand for the trial court to hold a new plea hearing with instructions for the trial court to

consider the facts and circumstances of Williams’s case.

       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 common

pleas 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

MARY EILEEN KILBANE, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
