[Cite as State v. Cooper, 2019-Ohio-770.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      29110

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
KYLE COOPER                                          COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR-2017-08-3038

                                 DECISION AND JOURNAL ENTRY

Dated: March 6, 2019



        HENSAL, Judge.

        {¶1}     Kyle Cooper appeals the denial of his motion to dismiss in the Summit County

Court of Common Pleas. For the following reasons, this Court affirms.

                                                I.

        {¶2}     Mr. Cooper collided into the back of a motorcycle while driving in Akron,

fracturing the pelvis of the motorcycle rider. A police officer cited him for violating three city

ordinances, two of which were for operating a vehicle under the influence of alcohol (OVI) and

the other for failure to keep an assured clear distance. Three days later, Mr. Cooper entered a

plea of no contest to one of the OVI counts in Akron Municipal Court and the other offenses

were dismissed.

        {¶3}     Two weeks after the municipal court accepted his plea, the Grand Jury indicted

Mr. Cooper for one count of vehicular assault under Revised Code 2903.08(A)(2) based on the

same incident.      Mr. Cooper moved to dismiss the charge, arguing that it violated Double
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Jeopardy and that his negotiated plea barred any further prosecution of his conduct. Following a

hearing, the trial court denied his motion, concluding that double jeopardy did not apply and that

Mr. Cooper could not reasonably rely on his plea as barring further charges. Mr. Cooper moved

for reconsideration, but the trial court denied his motion. Mr. Cooper then decided to plead no

contest to the offense. The trial court found him guilty and sentenced him to two years of

community control. Mr. Cooper has appealed, assigning as error that the trial court incorrectly

denied his motion to dismiss.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
       DISMISS/SUPPRESS.

       {¶4}    Mr. Cooper argues that the trial court incorrectly concluded that it was not

reasonable for him to believe that he would not face any further criminal prosecution if he

pleaded no contest to the OVI offense. We review the denial of Mr. Cooper’s motion to dismiss

de novo. State v. Sims, 9th Dist. Summit No. 22677, 2006-Ohio-2415, ¶ 17.

       {¶5}    In State v. Carpenter, 68 Ohio St.3d 59 (1993), the Ohio Supreme Court

considered whether the state could indict a defendant for murder if the victim of a crime died

from injuries sustained in the crime after the court accepted a negotiated guilty plea to a lesser

offense. The Supreme Court explained that plea agreements are an essential and necessary part

of the administration of justice and that they must be attended by safeguards to ensure that a

defendant receives what is reasonably due under the circumstances. Id. at 61, citing Santobello

v. New York, 404 U.S. 257, 261-262 (1971). It concluded that, unless the state expressly

reserved the right to file additional charges on the record at the time of the defendant’s plea, the

defendant could not be indicted for murder. Id. at 62.
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       {¶6}    The Ohio Supreme Court next considered the issue in State v. Zima, 102 Ohio

St.3d 61, 2004-Ohio-1807. In Zima, the defendant drove left of center on a Cleveland road and

collided with a motorcycle. The city charged her with driving under the influence, in violation of

a city ordinance, as well as with driving under suspension, failure to yield, and failure to wear a

seatbelt. Following plea negotiations with the city, she pleaded no contest in municipal court to

the driving under the influence charge and the city dismissed the other charges. Meanwhile, four

days before she entered her plea, the Grand Jury indicted her on two counts of aggravated

vehicular assault and one count of driving under the influence under the Revised Code. After

sentencing in the municipal court, she moved to dismiss the indictment, arguing that the state

was barred from prosecuting her following her conviction in municipal court.

       {¶7}    In Zima, the Ohio Supreme Court explained that its holding in Carpenter was

“essentially a synthesis of contract and criminal law in a particular factual setting.” Id. at ¶ 11.

It explained that the defendant’s expectation in Carpenter that “his guilty plea would terminate

the incident was inherently justified because the prosecutor and the court had jurisdiction over all

the charges, both actual and potential, and because the negotiated guilty plea included the

dismissal of all pending charges.” Id. at ¶ 12. It also explained that, “[i]n the absence of these or

equivalent circumstances, * * * it would be exceedingly difficult to sustain a defendant’s belief

that no further charges will be brought or prosecuted.” Id. Applying Carpenter to the facts of

that case, the Ohio Supreme Court concluded that the defendant could not reasonably have

believed that no further charges would be brought. Id. at ¶ 14. It noted that, at the time of her

plea, the defendant had already been indicted and that neither the municipal court nor the city

prosecutor had the authority to dismiss those charges. Id. Acknowledging that the defendant

may not have been aware of the indictment, the Court observed that “a defendant should be
                                                 4


aware that a plea taken before a municipal judge with limited criminal jurisdiction might not

dispose of the matter fully.” Id., quoting State v. Zima, 8th Dist. Cuyahoga No. 80824, 2002-

Ohio-6327, ¶ 44 (Kilbane, J., concurring in part and dissenting in part).

       {¶8}    The issue, therefore, is whether Mr. Cooper could reasonably expect that he

would not face further prosecution when he pleaded no contest to the operating under the

influence charge. The parties acknowledged to the trial court that Mr. Cooper’s plea in the

municipal court was not recorded.       Mr. Cooper presented testimony, however, about what

occurred on the date of the incident and during the plea hearing. According to him, after police

arrived on the scene, they transported him to a police station where he took a Breathalyzer test.

Once they learned that the rider of the motorcycle had a fractured pelvis, one of the officers

wrote him a ticket for OVI and told him that there would be no criminal charges. The officer

also checked a box on the ticket form indicating that there were no criminal charges. The officer

advised him “to get a good lawyer and get it all taken care of in court * * *.”

       {¶9}    According to Mr. Cooper, on his court date three days later, his attorney met with

the prosecutor and negotiated a plea deal. Under the terms of the deal, he pleaded no contest to

one of the OVI counts and the other two charges were dropped. Mr. Cooper testified that he

never saw the judge, but that his attorney simply took his file before the judge. His attorney also

told him that, because he had pleaded guilty that day, there would be no other charges arising out

of the incident. Mr. Cooper believed his attorney because he had never been in trouble before

and the process was all new to him.

       {¶10} The same attorney who represented Mr. Cooper in the municipal court case

represented him at the hearing on his motion to dismiss. The attorney told the court that he

negotiated Mr. Cooper’s plea with the city prosecutor. He corroborated Mr. Cooper’s testimony
                                                 5


that a judge did not review the plea with Mr. Cooper, that Mr. Cooper understood his rights, and

that Mr. Cooper understood that his plea would bar any future charges. He admitted, however,

that he did not discuss future charges with the city prosecutor.

       {¶11} Although Mr. Cooper may have believed he would not face criminal charges

based on the ticket he received and the assurances of his attorney, we conclude that, under Zima,

his belief was not reasonable. As the Ohio Supreme Court explained in that case, “a defendant

should be aware that a plea taken before a municipal judge with limited criminal jurisdiction

might not dispose of the matter fully.” Zima, 102 Ohio St.3d 61, 2004-Ohio-1807, at ¶ 14,

quoting Zima, 2002-Ohio-6327, at ¶ 44 (Kilbane, J., concurring in part and dissenting in part).

Unlike in Carpenter, the municipal court did not have “jurisdiction over all the charges, both

actual and potential * * *.” Id. at ¶ 12. Mr. Cooper’s attorney also admitted that he did not

discuss future charges with the city prosecutor at the time he negotiated Mr. Cooper’s plea in the

municipal court case. See State v. Mullins, 5th Dist. Fairfield No. 12 CA 17, 2013-Ohio-1826, ¶

27.

       {¶12} Mr. Cooper argues that this Court should follow the decisions of the Eighth

District Court of Appeals in State v. McDonough, 8th Dist. Cuyahoga No. 84766, 2005-Ohio-

1315 and Tenth District Court of Appeals in State v. Church, 10th Dist. Franklin No. 12AP-34,

2012-Ohio-5663. In McDonough, the defendant, following a traffic stop, was cited for driving

under suspension, red-light traffic signal, and use of illegal plates. In exchange for a reduction of

the driving-under-suspension charge to no operator’s license, the defendant agreed to plead no

contest to the charges in municipal court. At the time of his plea, he had been indicted by the

Grand Jury for receiving stolen property based on his possession of the illegal license plates.

Following his plea, he moved to dismiss the indictment, arguing that further prosecution of the
                                                6


charge constituted a breach of his plea agreement. The Eighth District concluded that the

defendant’s belief that he would not face additional prosecution was reasonable. It noted that the

receiving stolen property charge had originally been filed in the municipal court before being

bound over to the common pleas court. McDonough at ¶ 11. It noted that the same officer who

issued the citations to the defendant also assisted in the common pleas court case. Id. It,

therefore, explained that the municipal court and the city prosecutor should have been aware of

the other charge at the time of the plea agreement. Id.

       {¶13} In Church, the defendant entered a negotiated plea in municipal court to one count

of failure to use a crosswalk in exchange for the dismissal of a drug possession charge. Over a

month later, he was indicted for trafficking drugs from the same incident. The Tenth District

noted that, at the time he entered his plea in municipal court, the court explained that the plea

offer involved him pleading to the jaywalking offense in order to “dismiss the drug abuse.”

Church at ¶ 15. It explained that there was nothing in the record indicating that the prosecution

had reserved the right to pursue more serious drug charges. Id. It concluded that, under the facts

and circumstances, the defendant reasonably believed that, following his negotiated plea, he

would not be subject to more serious drug charges. Id. at ¶ 17.

       {¶14} The facts of this case are distinguishable from McDonough and Church. Unlike

in McDonough, the Grand Jury did not indict Mr. Cooper until after he pleaded no contest in the

municipal court case. There is nothing in the record to suggest that the municipal court or the

city prosecutor were aware of other charges that the county prosecutor may have been

considering. Unlike in Church, there is no similarity between Mr. Cooper’s misdemeanor OVI

charge and the version of vehicular assault under which he was indicted. There is also nothing in

the record that indicates that the city prosecutor or the court made any assurances to Mr. Cooper
                                                7


about other charges. Mr. Cooper’s belief that he would not face any additional charges appears

to have come from his conversations with his attorney. The attorney admitted, however, that he

had not discussed further charges with the city prosecutor. He only assumed that, because no

charges had been filed, they would be barred by Mr. Cooper’s plea. Mr. Cooper also relies on

the fact that the officer who issued his citation told him that there would be no criminal charges.

He has not cited to any decisions, however, in which statements by the charging officer were

considered in deciding whether the defendant had a reasonable belief that he would not face

additional charges. Moreover, we cannot disregard the Ohio Supreme Court’s directive that “a

defendant should be aware that a plea taken before a municipal judge with limited criminal

jurisdiction might not dispose of the matter fully.” Zima, 102 Ohio St.3d 61, 2004-Ohio-1807 at

¶ 14, quoting Zima, 2002-Ohio-6327, at ¶ 44 (Kilbane, J., concurring in part and dissenting in

part).

         {¶15} Upon review of the record, we conclude that Mr. Cooper has not established that

he had a reasonable belief that his plea of no contest to one count of OVI in municipal court

would bar any other charges arising out of his collision with the motorcycle. We, therefore,

conclude that the trial court correctly denied his motion to dismiss. Mr. Cooper’s assignment of

error is overruled.

                                               III.

         {¶16} Mr. Cooper’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                 8




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT




CALLAHAN, P. J.
CONCUR.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶17} I would affirm solely on the basis that there is no record of the proceedings in

municipal court.
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APPEARANCES:

ALAN M. MEDVICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
