         [Cite as State v. Sims, 2017-Ohio-8379.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-160856
                                                        TRIAL NOS. C-16TRD-28152A
        Plaintiff-Appellee,                         :              C-16TRD-28152B
                                                                   C-16TRD-28152C
  vs.                                               :              C-16TRD-28152D

SHAWNTEL SIMS,                                      :      O P I N I O N.

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Municipal Curt

Judgments Appealed From Are: Affirmed in Part; Appeal Dismissed in Part

Date of Judgment Entry on Appeal: November 1, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

         {¶1}   In this appeal, defendant-appellant Shawntel Sims argues that the

trial court lacked jurisdiction to accept his no-contest pleas without first obtaining a

written waiver of his right to a jury trial pursuant to R.C. 2945.05, and that the trial

court erred in denying his motion to suppress.

         {¶2}   Because the trial court was not required to obtain a written waiver of

Sims’s right to a jury trial before accepting his no-contest pleas, and because it

properly denied his motion to suppress, we find Sims’s arguments to be without

merit.

                                    Facts and Procedure


         {¶3}   Sims was stopped for a tinted-window violation. In addition to being

cited for that violation, he received citations for driving under an OVI suspension, a

safety-restraint    violation,    and    driving    under     a   financial-responsibility-law

suspension. All citations were for “petty offenses” under Ohio law. Crim.R. 2(D).1

         {¶4}   For a petty offense, a defendant is not automatically entitled to a trial

by jury. Rather, he must make a written demand. Crim.R. 23(A). In this case, Sims

filed a timely jury demand with the trial court. He also filed a motion to suppress.

Following the trial court’s denial of his motion to suppress, Sims entered no-contest

pleas to all charges. The trial court accepted Sims’s pleas and found him guilty. For

the offense of driving under an OVI suspension, the trial court sentenced Sims to 180




1 While there was some confusion on the record at the time of sentencing as to whether Sims had
prior convictions that would elevate the offense, the parties and the court ultimately treated the
offense of driving under an OVI suspension as a petty offense that carried a maximum sentence of
180 days’ incarceration.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



days in jail and imposed a $500 fine and court costs. For the offense of driving

under a financial-responsibility-law suspension, the trial court sentenced Sims to 30

days in jail and imposed a $10 fine and costs. For the safety-restraint and tinted-

window violations, the trial court only imposed costs.

                          Lack of Final Appealable Orders


       {¶5}   Before proceeding to the merits of Sims’s arguments, we must examine

our jurisdiction to entertain this appeal. This court only has jurisdiction to review

final orders and judgments. Ohio Constitution, Article IV, Section 3(B)(2); R.C.

2505.03.

       {¶6}   A judgment of conviction is a final order under R.C. 2505.02 when it

sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature,

and (4) the time stamp indicating the entry upon the journal by the clerk. State v.

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the

syllabus; State v. Bennett, 1st Dist. Hamilton Nos. C-140507 and C-140508, 2015-

Ohio-3246, ¶ 4; Crim.R. 32(C). Each of these requirements must be contained in a

single document. State v. Daniels, 1st Dist. Hamilton No. C-140242, 2014-Ohio-

5160, ¶ 7, citing State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d

163, ¶ 17.

       {¶7}   In Bennett, we held that while required by law to be imposed, court

costs are not a criminal punishment and do not constitute a sanction that can be

imposed as a sentence. Bennett at ¶ 4-5. In this case, the trial court imposed a jail

term and a fine for the offenses of driving under an OVI suspension and driving

under a financial-responsibility-law suspension. But for the safety-restraint and

tinted-window violations, it imposed costs only. Consequently, no sentence was



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imposed for these offenses and the entries appealed from with respect to them are

not final and appealable orders. We accordingly dismiss the appeal with respect to

the safety-restraint and tinted-window violations.

                                     Jury Waiver


       {¶8}   In his first assignment of error, Sims argues that the trial court lacked

jurisdiction to accept his no-contest pleas because it failed to obtain a valid jury

waiver pursuant to R.C. 2945.05. Sims had secured his right to a jury trial for these

petty offenses by filing a timely written demand with the court as required by

Crim.R. 23(A). In support of his argument that a written waiver was required, Sims

cites this court’s decision in State v. Fish, 104 Ohio App.3d 236, 661 N.E.2d 788 (1st

Dist.1995).

       {¶9}   In Fish, this court considered the same issue that we are presented

with in this case: must a trial court, before accepting a no-contest plea to a petty

offense after a timely jury demand has been filed, first obtain a written waiver of the

right to a jury trial? In answering that question in the affirmative, the Fish court

relied on two cases from the Supreme Court of Ohio. The first was State v. Tate, 59

Ohio St.2d 50, 391 N.E.2d 738 (1979), which held that a trial court cannot try a

defendant in a petty-offense case where a jury trial has been demanded without first

obtaining a written jury waiver in accordance with R.C. 2945.05. The second case

relied upon was State ex rel. Jackson v. Dallman, 70 Ohio St.3d 261, 638 N.E.2d 563

(1994), where the court held that “[t]here must be strict compliance with R.C.

2945.05 for there to be a waiver of a right to a jury trial; where the record does not

reflect strict compliance, the trial court is without jurisdiction to try the defendant

without a jury.” The Fish court held that:



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       These cases dealt with instances where a trial court proceeded to try a

       defendant without a jury waiver, but we perceive no difference in the

       situation here—once the defendant has properly demanded a jury trial

       in a petty case, the court simply cannot proceed to trial, or even to a

       finding of guilty after a no-contest plea, without a written jury waiver,

       signed by the defendant and made part of the record.

(Emphasis added.) Fish at 239.

       {¶10} A review of the plain language of R.C. 2945.05, along with case law

from this district, other Ohio appellate districts, and the Supreme Court of Ohio,

convinces us that the Fish court erred in holding that a trial court must obtain a

written jury waiver before accepting a no-contest plea to a petty offense where a

timely jury demand had been filed.

       {¶11} R.C. 2945.05 provides: “In all criminal cases pending in courts of

record in this state, the defendant may waive a trial by jury and be tried by the court

without a jury. Such waiver by a defendant, shall be in writing, signed by the

defendant, and filed in said cause and made a part of the record thereof.” (Emphasis

added.) The statute clearly provides that a defendant must file a written jury waiver

before she or he may “be tried by the court.” But it does not similarly require a

waiver before a trial court may accept a plea of guilty or no contest.

       {¶12} Numerous courts in Ohio have declined to expand the requirements of

R.C. 2945.05 to guilty and no-contest pleas. In Martin v. Maxwell, 175 Ohio St. 147,

191 N.E.2d 838 (1963), the Supreme Court of Ohio held that “[t]he provisions of

Section 2945.05, Revised Code, requiring the filing of a written waiver of a trial by

jury are not applicable where a plea of guilty is entered by an accused.” This court




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has reached the same conclusion in the context of a guilty plea.             In State v.

Kinebrew, 1st Dist. Hamilton No. C-060769, 2008-Ohio-812, ¶ 3, we held that “[t]he

mandates of R.C. 2945.05, requiring the filing of a written waiver of a trial by jury,

are not applicable when an accused enters a plea of guilty.” And in State v. Barber,

1st Dist. Hamilton No. C-981021, 1999 WL 1488979, *1 (Nov. 17, 1999), we held that

“R.C. 2945.05 applies only in those situations when the defendant waives his right to

a jury trial and elects to have his case tried to the bench.”

       {¶13} Other appellate districts have reached similar conclusions, specifically

with respect to no-contest pleas. See Ashtabula v. Jones, 11th Dist. Ashtabula No.

2016-A-0053, 2017-Ohio-1103, ¶ 26 (rejecting defendant’s argument that the trial

court was required to obtain a written jury waiver before accepting a no-contest

plea); Cleveland v. Brisbane, 2016-Ohio-4564, 70 N.E.3d 52, ¶ 45-46 (8th Dist.)

(trial court did not err in failing to obtain a written jury waiver before accepting a no-

contest plea because “the entrance of a guilty or no-contest plea constitutes a waiver

of a right to a jury trial”); State v. Rice, 5th Dist. Stark No. 2013CA00197, 2014-Ohio-

3487, ¶ 30 (“The trial court was not required to accept a written waiver of the jury

demand prior to accepting appellant’s plea of no contest”); State ex rel. Stern v.

Mascio, 75 Ohio St.3d 422, 424, 662 N.E.2d 370 (1996) (a no-contest plea waives the

defendant’s right to a jury trial).

       {¶14} We see no reason to distinguish guilty pleas and no-contest pleas.

While a guilty plea is an admission of guilt, and a no-contest plea is only an

admission of the truth of the facts contained in the indictment or complaint, this

does not convert a no-contest plea into a trial by the court. It cannot be said in such

a case that the defendant is being “tried by the court without a jury.” Rather, without




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                       OHIO FIRST DISTRICT COURT OF APPEALS



determining any facts in dispute, the court simply determines whether the admitted

facts met all the elements of the charged offense. Just as in guilty-plea cases, the

court then enters a finding of guilt. This does not rise to the level of being “tried” by

the court.

       {¶15} Consequently, we hold that after a timely jury demand has been filed

for a petty offense, the trial court need not obtain a written jury waiver before

accepting a no-contest plea. To the extent that Fish held that a trial court was

required to obtain a written waiver before accepting a no-contest plea in such a

situation, it is overruled.

       {¶16} In this case, because no written jury waiver was required, the trial

court did not lack jurisdiction to accept Sims’s no-contest pleas. And we note that

the record indicates that Sims was in fact aware that his no-contest pleas would

result in a waiver of trial by jury, as the trial court explicitly informed him, prior to

accepting the pleas and finding him guilty, that the entrance of the no-contest pleas

would result in him giving up his right to a trial. See Mascio, 75 Ohio St.3d at 424,

662 N.E.2d 370.

       {¶17} The first assignment of error is overruled.

                                 Motion to Suppress


       {¶18} In his second assignment of error, Sims argues that the trial court

erred in denying his motion to suppress. He specifically contends that the officer

who issued his citations lacked reasonable suspicion to stop him for a window-tint

violation.

       {¶19} Our review of a trial court’s ruling on a motion to suppress presents a

mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-



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                      OHIO FIRST DISTRICT COURT OF APPEALS



5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’s findings of fact if they are

supported by competent and credible evidence, but we review de novo the

application of the relevant law to those facts. Id.

       {¶20} Under the Fourth Amendment, a traffic stop is lawful if an officer has a

reasonable and articulable suspicion, under the totality of the circumstances, that a

traffic violation has occurred. State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539,

894 N.E.2d 1204, ¶ 7-8, citing Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391,

59 L.Ed.2d 660 (1979); State v. Foster, 1st Dist. Hamilton No. C-160424, 2017-Ohio-

4036, ¶ 16.

       {¶21} The following evidence was adduced at a hearing on Sims’s motion to

suppress. Hamilton County Sheriff’s Deputy Mike Stenger testified that on June 17,

2016, he had been observing traffic while stationed in a parking lot in Silverton.

Deputy Stenger saw a two-door vehicle approaching and observed that the vehicle’s

passenger-side window had a dark tint. He could see two passengers in the vehicle

through the front windshield, but it was nearly impossible to see inside the vehicle or

to discern the facial features of the vehicle’s occupants through the passenger

window. Deputy Stenger initiated a traffic stop of the vehicle being driven by Sims,

believing there was a tint violation. He took a reading of the tint on the passenger

window with a tint meter, which he explained was a certified calibrated device used

to determine the percentage of tint, or the light transparency, on the window.

Deputy Stenger testified that the tint meter indicated that approximately 84 percent

of the light coming through the window was blocked by the tint. He found the

vehicle to be in violation and issued a citation.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} In denying Sims’s motion to suppress, the trial court found that

Deputy Stenger had found it almost impossible to see inside the vehicle and had been

unable to identify any specific characteristics of the vehicle’s occupants from the

passenger’s side. The court concluded that “the officer was justified in initiating the

traffic stop based upon what he perceived to be as a window tint violation.”

       {¶23} Sims contends that Deputy Stenger committed a mistake of fact when

initiating the traffic stop based on a window-tint violation, and that the trial court’s

finding that the deputy could not see inside the window was against the manifest

weight of the evidence. He argues that Deputy Stenger’s testimony interpreting the

results of the tint-meter reading was incorrect, and that the tint meter had actually

indicated that the window allowed 84 percent of the light to pass through, rather

than blocked 84 percent of the light.

       {¶24} The trial court’s finding that the deputy could not see inside the

passenger window was supported by competent and credible evidence.              Even if

Sims’s argument that Deputy Stenger wrongly interpreted the results displayed by

the tint meter is correct, we find that the deputy nonetheless had a reasonable

suspicion to stop the vehicle. Deputy Stenger was not required to “correctly predict

that a conviction will result,” and a determination as to whether Sims could

ultimately be found guilty of a window-tint violation was not determinative of

whether the deputy had reasonable suspicion to conduct a traffic stop. See State v.

Burnett, 1st Dist. Hamilton Nos. C-110565, C-110566 and C-110567, 2012-Ohio-1631,

¶ 8, citing Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850

N.E.2d 698, ¶ 15.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} Based on his observation that it was nearly impossible to see inside the

passenger window and that he could not discern any facial features of the vehicle’s

occupants through that window, we find that, under the totality of the circumstances,

Deputy Stenger had a reasonable suspicion to believe that a traffic violation may

have occurred. Thus, the stop was proper.

       {¶26} The trial court did not err in denying Sims’s motion to suppress. The

second assignment of error is accordingly overruled.

       {¶27} In summary, the appeal is dismissed with respect to the safety-

restraint and tinted-window violations. The trial court’s judgments finding Sims

guilty of driving under an OVI suspension and driving under a financial-

responsibility-law suspension are affirmed.

                                                                   Judgment accordingly.



MOCK, P.J., and CUNNINGHAM, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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