[Cite as State v. Mullett, 2013-Ohio-3041.]




            IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO. 2012 CA 45

v.                                                     :            T.C. NO.   12TRD2261

NEILL T. MULLETT                                       :            (Criminal appeal from
                                                                     Municipal Court)
        Defendant-Appellant                            :

                                                       :

                                              ..........

                                              OPINION

                          Rendered on the       12th       day of       July   , 2013.

                                              ..........

GIL S. WEITHMAN, Atty. Reg. No. 0018377 and BREANNE N. PARCELS, Atty. Reg.
No. 0089370, Champaign Municipal Prosecutor, 205 S. Main Street, Urbana, Ohio 43078
       Attorneys for Plaintiff-Appellee

HALLI BROWNFIELD WATSON, Atty. Reg. No. 0082466, The Greene Town Center, 50
Chestnut Street, Suite 230, Dayton, Ohio 45440
      Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

                 {¶ 1} Neill T. Mullett pled guilty in the Champaign County Municipal

Court to speeding (82/55). The court accepted his guilty plea, found that he had recklessly
                                                                                             2

operated his vehicle, and imposed a $150 fine, a six-month driver’s license suspension, and

court costs. The court indicated that it would suspend three months of the driver’s license

suspension if Mullett wrote a five-page paper on speeding and fatalities. Upon the filing of

Mullett’s notice of appeal, the trial court stayed Mullett’s sentence.

       {¶ 2}    Mullett appeals from his conviction. He claims that the trial court erred in

requiring him to personally appear in court to address his traffic ticket, that R.C. 4510.15 is

unconstitutional, that the evidence did not support a finding of recklessness for purposes of

R.C. 4510.15, and that his plea was not made knowingly, intelligently, and voluntarily.

       {¶ 3}    As discussed below, Mullett has waived any challenge to his personal

appearance in the trial court by not raising that issue before the trial court. However,

Mullett’s plea was not given knowingly, intelligently, and voluntarily, because the record

does not reflect that the trial court complied with Traf.R. 8(D) before calling upon defendant

to plead. In light of that conclusion, we decline to address Mullett’s additional arguments.

The trial court’s judgment will be reversed, and the case will be remanded for further

proceedings.

               I. Requirement that Defendant Personally Appear in Court

       {¶ 4}    Mullett’s first assignment of error states:

       THE TRIAL COURT ERRED BY REQUIRING APPELLANT TO

       PERSONALLY APPEAR BEFORE IT IN CONTRAVENTION OF R.C.

       2935.26 AND TRAF. R. 13 RESULTING IN THE DEPRIVATION OF

       APPELLANT’S RIGHT TO DISPOSE OF THIS TRAFFIC CITATION BY

       PAYING AN ESTABLISHED FINE AND COSTS WITHOUT ANY
                                                                                              3

        APPEARANCE BEFORE THE TRIAL COURT AND IMPOSITION OF A

        DRIVER’S LICENSE SUSPENSION.

        {¶ 5}     In his first assignment of error, Mullett claims that the trial court erred in

requiring to him to personally appear in court, rather than allowing him to pay his speeding

ticket through the violations bureau. Mullett relies on R.C. 2935.26, which addresses the

procedures for issuing a citation for an individual who committed a minor misdemeanor, and

Traf.R. 13.

        {¶ 6}     When Mullett appeared for his arraignment (as required by the ticket),

Mullett did not object to his personal appearance before the trial court and pled guilty.

Accordingly, Mullett waived any challenge to his personal appearance, and we decline to

address this issue in the first instance.

        {¶ 7}    Mullett’s first assignment of error is overruled.

                           II. Validity of Defendant’s Guilty Plea

        {¶ 8}    Mullett’s fourth assignment of error states:

        THE TRIAL COURT ERRED BY ACCEPTING APPELLANT’S GUILTY

        PLEA TO THE OFFENSE OF SPEEDING WITHOUT ENSURING THAT

        APPELLANT UNDERSTOOD THE EFFECT OF HIS PLEA AND THE

        MAXIMUM SENTENCE THAT MAY BE IMPOSED AGAINST HIM.

        {¶ 9}    Mullett’s fourth assignment of error argues that his guilty plea was not

entered knowingly, intelligently, and voluntarily.

        {¶ 10} Mullett was charged with and found guilty of speeding, in violation of R.C.
                                                                                                                                  4

4511.21(D)(1). 1 Therefore, the proceedings were governed by the Ohio Traffic Rules.

Crim.R. 1(C); Traf.R. 1(A). A conviction for speeding in violation of R.C. 4511.21(D)(1)

is a minor misdemeanor, for which the only criminal penalty is a fine not exceeding $150.

R.C. 4511.21(P); R.C. 2929.28(A)(2)(v). Under Traf.R. 2(D), a “petty offense” is defined

as “an offense for which the penalty prescribed by law includes confinement for six months

or less”; speeding is a petty offense.

         {¶ 11}        Mullett entered a guilty plea during the course of his arraignment.

Arraignments for speeding violations are governed by Traf.R. 8, which provides, in part:

         (B) Arraignment procedure

                    Arraignment shall be conducted in open court and shall consist of

         reading the complaint to the defendant, or stating to him the substance of the

         charge, and calling on him to plead thereto. The defendant shall be given a

         copy of the complaint, or shall acknowledge receipt thereof, before being

         called upon to plead and may in open court waive the reading of the

         complaint.

         ***

         (D) Explanation of rights

                    Before calling upon a defendant to plead at arraignment the judge

         shall cause him to be informed and shall determine that defendant knows and

         understands:


             1
                R.C. 4511.21(D)(1) provides: “No person shall operate a motor vehicle * * * upon a street or highway as follows: (1)
   At a speed exceeding fifty-five miles per hour, except upon a freeway as provided in divisions (B)(13) and (14) of this section.”
                                                                                            5

              (1) That he has a right to counsel and the right to a reasonable

       continuance in the proceedings to secure counsel, and, pursuant to Criminal

       Rule 44, the right to have counsel assigned without cost to himself if he is

       unable to employ counsel;

              (2) That he has a right to bail as provided in Rule 4;

              (3) That he need make no statement at any point in the proceeding;

       but any statement may be used against him;

              (4) That he has, where such right exists, a right to jury trial and that he

       must, in petty offense cases, make a demand for a jury pursuant to Criminal

       Rule 23;

              (5) That if he is convicted a record of his conviction will be sent to the

       Bureau of Motor Vehicles and become part of his driving record.

       (E) Joint arraignment

              If there are multiple defendants to be arraigned, the judge may advise,

       or cause them to be advised, of their rights by general announcement.

       {¶ 12} The trial court’s acceptance of Mullett’s guilty plea at his arraignment was

governed by Traf.R. 10(D), which provides:

              In misdemeanor cases involving petty offenses, except those

       processed in a traffic violations bureau, the court may refuse to accept a plea

       of guilty or no contest and shall not accept such pleas without first informing

       the defendant of the effect of the plea of guilty, no contest, and not guilty.

       This information may be presented by general orientation or pronouncement.
                                                                                             6

                The counsel provisions of Criminal Rule 44(B), (C) and (D) apply to

       this subdivision.

Traf.R. 10(B), which defines “the effect of guilty or no contest pleas,” provides that “[t]he

plea of guilty is a complete admission of the defendant’s guilt.” Traf.R. 10(B)(1).

       {¶ 13}     In State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635,

the Ohio Supreme Court clarified that in order to meet Traf.R. 10(D)’s requirement of

“informing the defendant of the effect of the plea,” the trial court need only inform the

defendant of the information contained in Traf.R. 10(B). Watkins, supra; see State v.

Darden, 2d Dist. Greene No. 2005 CA 109, 2006-Ohio-2908, ¶ 16. The Supreme Court

stated that “[a] judge’s duty to a defendant before accepting his guilty or no contest plea is

graduated according to the seriousness of the crime with which the defendant is charged.”

Watkins at ¶ 25. It held that, “in all cases, the judge must inform the defendant of the effect

of his plea.” Id. at ¶ 26. The Supreme Court observed that trial courts have additional

requirements under Crim.R. 11 for felony cases and misdemeanor cases involving serious

offenses. However, the Watkins court noted that there are no “constitutionally mandated

informational requirements for defendants charged with misdemeanors,” and thus “the

protections that the Criminal Rules provide to felony defendants should not be read into the

Ohio Traffic Rules, which deal only with misdemeanor offenses.”            Id. at ¶ 28.    The

Supreme Court held that “where a defendant charged with a petty misdemeanor traffic

offense pleads guilty or no contest, the trial court complies with Traf.R. 10(D) by informing

the defendant of the information contained in Traf.R. 10(B).”2 Id.


          2
              We are conscious that these cases could be interpreted to mean that a
                                                                                             7

        {¶ 14} When a guilty plea is accepted under Traf.R. 10, the trial court must proceed

with sentencing under Crim.R. 32. Crim.R. 32(A) requires the trial court to “address the

defendant personally and ask if he or she wishes to make a statement in his or her own

behalf or present any information in mitigation of punishment.” Crim.R. 32(A)(1).

        {¶ 15} The transcript of Mullett’s arraignment reflects that Mullett first reviewed a

video statement by the trial judge that explained Mullett’s “rights.” The State attached to its

reply brief a copy of what it claims is the arraignment video, but neither the video nor a

transcription of the video is part of the record on appeal. Accordingly, the record does not

reflect whether the video recording fully informed Mullett of his rights, as required by

Traf.R. 8(D), or of the effect of the plea of guilty, no contest, and not guilty.

        {¶ 16} At the beginning of Mullett’s arraignment before the trial judge, the trial

court informed Mullett that he had been charged with speeding (82/55 mph), a minor

misdemeanor.     The court asked Mullett if he understood the charge and “his rights.”

Mullett responded affirmatively. Mullett then asked the court about the citing officer’s

absence from the courtroom. The trial court responded, “[D]idn’t I explain on that video

   trial court is not required to ensure that a defendant facing a petty misdemeanor
   offense enters his or her guilty or no contest plea knowingly, intelligently, and
   voluntarily. In addition, there is no apparent requirement that such a defendant
   be informed of the potential penalties that he or she faces. See State v.
   Klingsbergs, 9th Dist. Wayne No. 10 CA 44, 2011-Ohio-6509, ¶ 9 (“We
   acknowledge that it is troubling that, when faced with entering pleas to first
   degree misdemeanors [that are petty offenses], the trial court’s obligation is
   limited to merely informing the defendant of the effect of the plea.”). However,
   the Ohio Supreme Court has spoken on this issue and held that, with petty
   misdemeanor offenses, the court must simply notify the defendant the effect of
   his plea, as defined in Traf.R. 10(B) and Crim.R. 11(B). Watkins at ¶ 28; State
   v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 25; see also
   Klingsbergs at ¶ 9; Parma v. Benedict, 8th Dist. Cuyahoga No. 98947,
   2013-Ohio-1990.
                                                                                         8

that this is for the purpose of addressing bond and addressing an attorney and addressing

what plea you wish to answer?” The court asked Mullett if he needed to view the video

again; Mullett stated that he did not.

       {¶ 17}    The arraignment then proceeded as follows:

       THE COURT: Okay. Do you understand the charge that you’re charged with?

       THE DEFENDANT: Yes, ma’am.

       THE COURT: Did you understand your rights?

       THE DEFENDANT: Yes, ma’am.

       THE COURT: Are you prepared to enter a plea at this time?

       THE DEFENDANT: Yes.

       THE COURT: What plea would you like to enter?

       THE DEFENDANT: Guilty.

       THE COURT: Do you understand that a guilty plea is an admission of your

       guilt?

       THE DEFENDANT: Yes.

       THE COURT: Do you understand that the maximum penalty could be up to a

       $150 fine, and costs if found to reckless at that speed – it probably will be –

       up to a one year license suspension.

       THE DEFENDANT: Yes.

       THE COURT: Do you understand by entering a guilty plea you’re giving up

       your right to an attorney?

       THE DEFENDANT: Yes.
                                                                            9

THE COURT: Do you understand you’re giving up your right to a trial?

THE DEFENDANT: Yes.

THE COURT: You’re giving up your right to remain silent?

THE DEFENDANT: Yes.

THE COURT: You’re giving up your right to make the State prove you guilty

beyond a reasonable doubt?

THE DEFENDANT: Yes.

THE COURT: You’re giving up your right to face people that accuse you of

the offense and cross-examine them?

THE DEFENDANT: Yes.

THE COURT: And you’re giving up your right to compel witnesses[’]

attendance and have them testify on your behalf?

THE DEFENDANT: Yes.

THE COURT: Are you making this plea knowingly, voluntarily and

intelligently?

THE DEFENDANT: I think so.

THE COURT: Have any threats or promises been made to get you to enter

into this plea?

THE DEFENDANT: No.

THE COURT: All right. And statement?

CLERK LAFRAY: Your Honor, if it pleases the Court, on November 11th at

2:42 hours in the afternoon, Deputy Vernon was on patrol traveling
                                                                                           10

       northbound in the 4,000 block of U.S. 68. He observed a vehicle traveling

       southbound in the wrong lane of travel that appeared to be traveling faster

       than the posted speed limit of 55 miles per hour.

               Unit activated his radar and clocked the vehicle at 82 miles per hour.

       Unit Initiated traffic stop of the vehicle. The driver Neill T. Mullet [sic].

       When the driver was asked if he was aware of his speed, he stated yes, he had

       been attempting to pass another vehicle.

               There was proof of insurance shown on the day of the stop. It was

       two lanes, dry, cloudy visibility, no adverse weather, heavy traffic in a rural

       area. Has one prior speed May of 2001.

       THE COURT: Okay. I would find that you’re guilty. I would also find that

       given it’s two lanes, you’re in the wrong lane, there is traffic and it’s in a

       rural area, I’m going to find that it’s reckless.

The trial court provided Mullett an opportunity to speak before the court imposed sentence,

but Mullett declined.

       {¶ 18} The transcript indicates that, after Mullett expressed that he “would like to enter”

a guilty plea, the trial court engaged in a colloquy about the rights that Mullett was waiving by

entering his guilty plea. The trial court expressly asked Mullett if he understood that a plea of

guilty is a complete admission of guilt, and Mullett answered affirmatively. In addition, the trial

court informed Mullett of the possible penalties he faced – including the driver’s license

suspension – and Mullett expressed that he understood. Commendably, the trial court’s colloquy

went beyond what was necessary under Traf.R. 10(D) for accepting Mullett’s guilty plea.
                                                                                           11

       {¶ 19} Nevertheless, the record does not demonstrate that the trial court caused Mullett

to be informed of his rights under Traf.R. 8(D) and determined that Mullet knew and understood

those rights before calling on him to plead at his arraignment. The trial court was permitted to

inform Mullett of those rights by general announcement, including by means of a video

recording, but a copy of that video recording was not properly made part of the record. Mullett’s

acknowledgment that he saw the video and his statement that he did not need to see it again do

not establish that the trial court’s video complied with Traf.R. 8(D). And, even assuming, for

sake of argument, that the trial court’s plea colloquy could cure this defect, the court’s

questioning of Mullett before accepting his plea did not address all of the “rights” stated in

Traf.R. 8(D), including that a record of the conviction would be sent to the BMV and become

part of his driving record.

       {¶ 20} Given the record before us, we cannot conclude that Mullett was fully informed

of his rights, as required by Traf.R. 8(D), before entering his guilty plea. Mullett’s fourth

assignment of error is sustained.

              III. Constitutionality of R.C. 4511.10 and Finding of Recklessness

       {¶ 21} Mullett’s second and third assignments of error read:

               THE TRIAL COURT VIOLATED APPELLANT’S CONSTITUTIONAL

       RIGHTS BY INVOKING R.C. 4510.15, WITHOUT NOTICE OR AN

       OPPORTUNITY TO BE HEARD, TO FIND APPELLANT RECKLESS AND

       IMPOSE A SIX-MONTH DRIVER’S LICENSE SUSPENSION AFTER

       APPELLANT ENTERED A GUILTY PLEA TO THE CHARGED OFFENSE OF

       SPEEDING,        WHICH       DOES   NOT     ENCOMPASS          A   FINDING     OF
                                                                                            12

       RECKLESSNESS.

                ASSUMING         ARGUENDO            THAT      R.C.      4510.15      WAS

       CONSTITUTIONALLY            APPLIED          AND   THAT        APPELLANT       WAS

       PROPERLY BEFORE THE TRIAL COURT, THE TRIAL COURT ABUSED

       ITS DISCRETION IN FINDING APPELLANT’S CONDUCT RECKLESS AND

       SUSPENDING HIS DRIVER’S LICENSE IN THE ABSENCE OF ANY

       EVIDENCE THAT APPELLANT POSED A THREAT TO OTHERS

       {¶ 22}    In his second assignment of error, Mullett claims that the trial court’s use of

R.C. 4510.15 to impose a driver’s license suspension was unconstitutional, because he had no

prior notice that his conduct would be deemed reckless and the trial court had no authority to

make an additional finding not implicated by the charged offense. Mullett argues that the court

found “recklessness” as a sentencing factor, in violation of his rights under the Fifth and Sixth

Amendments to the United States Constitution. Mullett’s third assignment of error asserts that,

even if R.C. 4510.15 were constitutional, the trial court abused its discretion when it found that

he had driven recklessly.

       {¶ 23}    In light of our disposition of Mullett’s fourth assignment of error, his second and

third assignments of error are overruled as moot.

                                         V. Conclusion

       {¶ 24} The trial court’s judgment will be reversed, and the matter will be remanded for

further proceedings..

                                           ..........

FAIN, P.J. and HALL, J., concur.
[Cite as State v. Mullett, 2013-Ohio-3041.]
Copies mailed to:

Gil S. Weithman
Breanne N. Parcels
Halli Brownfield Watson
Hon. Susan J. Fornof-Lippencott
