[Cite as State v. Czech, 2015-Ohio-458.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-13-1141

        Appellee                                 Trial Court No. TRC-12-32135

v.

David Czech                                      DECISION AND JUDGMENT

        Appellant                                Decided: February 6, 2015

                                            *****

        David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer,
        Assistant Prosecutor, for appellee.

        Laurel A. Kendall, for appellant.

                                            *****

        JENSEN, J.

        {¶ 1} Appellant, David Czech, appeals from the judgment of the Toledo Municipal

Court which found appellant guilty, after entering a plea of no contest, to one count of

operating a motor vehicle while under the influence in violation of R.C. 4511.19(A)(1)(a)

and (G)(1)(b), a misdemeanor of the first degree. For the reasons that follow, we reverse

the judgment of the trial court.
       {¶ 2} In the early morning hours of November 4, 2012, appellant was arrested

while driving his vehicle through the Village of Ottawa Hills, Lucas County, Ohio. The

arresting officer issued a complaint for operating a motor vehicle while under the

influence (“OVI”) in violation of R.C. 4511.19(A)(1)(a), open container in violation of

R.C. 4301.62(B)(4), driving with a suspended license in violation of R.C. 4510.21(A),

and “OVI Breath” in violation of R.C. 4511.19(A)(1)(d). Appellant was ordered to

appear in the Toledo Municipal Court on November 8, 2012. He failed to appear and a

bench warrant was issued.

       {¶ 3} Appellant was served with the warrant on March 15, 2013, and arrested.

Three days later, with the assistance of a public defender, appellant entered pleas of not

guilty to all four counts of the complaint.

       {¶ 4} When the case was called for trial on March 27, 2013, appellant entered a

plea of no contest to one count of OVI in violation of R.C. 4511.19(A)(1)(a). The

remaining charges were “off docketed.” The trial court explained to appellant that by

entering “[a] plea of no contest, though not admission of guilt, you are allowing this

Court to accept as true all the information contained in the complaint and in all likelihood

you would be found guilty.” The court informed appellant of the potential penalties and

inquired as to the voluntary nature of his plea. The court determined that the plea was

made knowingly, voluntarily, and intelligently. Before entering a finding of guilt, the

court indicated on the record that it had “review[ed] the complaint.” It was then that the

intern for the public defender’s office brought to the court’s attention that this was not




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appellant’s first driving while intoxicated conviction. The intern requested a presentence

investigation report. A brief discussion was held off the record. On the record, the court

indicated it would review appellant’s Bureau of Motor Vehicle (“BMV”) records and

recall the case later that day.

         {¶ 5} When the case was recalled, the trial court stated, “All right, looks like

second in six. That does change the penalties a little bit.”1 The trial court reviewed the

potential penalties and asked appellant, again, whether he wished to enter a plea of no

contest. Appellant indicated in the affirmative. The trial court stated, “Okay. Note that

defendant has a conviction in 1980, 2007, 2011, two in 2006, one in 2008 and then now

yet another one in 2012.2 Defendant was supposed to have been here for his first

appearance on November 8th, didn’t bother to show up.” Appellant was sentenced to 180

days in jail. The sentence was ordered to be served consecutive “to any other sentence

the defendant is serving.” The court ordered a fine of $525 and a class IV license

suspension. The court further ordered an ignition interlock and restricted license plates

on any vehicle driven by the appellant.

         {¶ 6} On May 8, 2013, appellant wrote a letter to the trial judge asking for a stay

on the sentence until October 15, 2013, so that he could “have time to retain an attorney

to file an appeal.”


1
  Contrary to the trial judge’s in-court statement, the judge indicated on the journal that
this was appellant’s first OVI in six years.
2
    Appellant’s BMV records were not made part of the record.




3.
      {¶ 7} On June 5, 2013, the trial court held a “sentencing review.” The trial court

acknowledged that it failed to review his appellate rights with him at the March 27, 2013

plea hearing. The court informed appellant of his “automatic right to appeal” and stated

             I sentenced you to a consecutive sentence because of your terrible

      driving history, your multiple D.U.I. offenses, you continue to drive even

      when you don’t have a license. You are not even entitled – not only are

      you driving intoxicated, you don’t even have a valid license for driving to

      begin with. For those reasons, the Court did sentence you consecutively to

      the other sentence you received from Judge Christiansen. So your request

      for modification of your sentence and/or for stay of your sentence is denied.

      {¶ 8} Appellant informed the court that he “need[ed] a public defender.”

Appellate counsel was appointed. For good cause shown, we granted appellant’s motion

for delayed appeal. Appellant’s counsel filed a “no merit” brief and requested leave to

withdraw as counsel, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967). Upon review, we found one issue presented by counsel had

arguable merit. We granted appointed counsel’s motion for leave to withdraw and

appointed attorney Laurel Kendall to represent appellant.

      {¶ 9} Appellant’s sole assignment of error is as follows:

             The trial court committed reversible error when it found Appellant

      guilty without calling for an explanation of the circumstances as required

      by R.C. 2937.07, and without which there were no facts in evidence to




4.
       support the “reasonable, articulable suspicion of criminal activity” required

       for a traffic stop under the Fourth Amendment to the Constitution of the

       United States.

       {¶ 10} The relevant version of R.C. 2937.07 became effective September 17,

2010. Am.Sub.H.B. No. 338, 2010 Ohio Laws 52. The section at issue is entitled

“Action on pleas of ‘guilty’ and ‘no contest’ in misdemeanor cases” and reads, in

relevant part, as follows:

              If the offense is a misdemeanor and the accused pleads guilty to the

       offense, the court or magistrate shall receive and enter the plea unless the

       court or magistrate believes that it was made through fraud, collusion, or

       mistake. * * * Upon receiving a plea of guilty, the court or magistrate shall

       call for an explanation of the circumstances of the offense from the affiant

       or complainant or the affiant’s or complainant’s representatives unless the

       offense to which the accused is pleading is a minor misdemeanor in which

       case the court or magistrate is not required to call for an explanation of the

       circumstances of the offense. After hearing the explanation of

       circumstances, together with any statement of the accused or after receiving

       the plea of guilty if an explanation of the circumstances is not required, the

       court or magistrate shall proceed to pronounce the sentence or shall

       continue the matter for the purpose of imposing the sentence.




5.
              A plea to a misdemeanor offense of “no contest” or words of similar

       import shall constitute an admission of the truth of the facts alleged in the

       complaint and that the judge or magistrate may make a finding of guilty or

       not guilty from the explanation of the circumstances of the offense. If the

       offense to which the accused is entering a plea of “no contest” is a minor

       misdemeanor, the judge or magistrate is not required to call for an

       explanation of the circumstances of the offense, and the judge or magistrate

       may base a finding on the facts alleged in the complaint. If a finding of

       guilty is made, the judge or magistrate shall impose the sentence or

       continue the case for sentencing accordingly.

       {¶ 11} The term “explanation of circumstances” is not defined by R.C. 2937.07.

However, since the term was first utilized in former versions of the statute, both this court

and the Ohio Supreme Court have reviewed its application and meaning. In City of

Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 459 N.E.2d 532 (1984), the Ohio Supreme

Court considered whether the provision in R.C. 2937.073 requiring an “explanation of

circumstances” following a plea of no contest had been superseded by the enactment of




3
  At the time, the relevant portion of R.C. 2937.07 provided that “[i]f the plea be ‘no
contest’ or words of similar import in pleading to a misdemeanor, it shall constitute a
stipulation that the judge * * * may make a finding of guilty or not guilty from the
explanation of circumstances and if guilt be found, impose or continue for sentence
accordingly.” Bowers at 150.




6.
Crim.R. 11(B)(2).4 The Bowers court, adopting the reasoning of the Second District

Court of Appeals in Springdale v. Hubbard, 52 Ohio App.2d 255, 369 N.E.2d 808 (2d

Dist.1977), held that the rule did not supersede the statute because the statute confers a

substantive right. Id. The Bowers court concluded that “a no contest plea may not be the

basis for a finding of guilty without an explanation of circumstances.” Id. Then, without

specifically defining the term, the Bowers court considered whether the trial court had

met the “explanation of circumstances” requirement when the record included papers and

documents evidencing a violation of the driving while intoxicated charge. Id. The

Bowers court opined:

              The question is not whether the court could have rendered an

       explanation of circumstances sufficient to find appellant guilty based on the

       available documentation but whether the trial court made the necessary

       explanation in this instance. Our review of the record indicates that no

       explanation of circumstances took place, notwithstanding the availability of

       documentary evidence that might have been the basis for meeting the

       statutory requirement. Therefore, appellee’s contention that the trial court

       fulfilled the obligations imposed by R.C. 2937.07 is without merit and the

       plea must be vacated. Id. at 151.



4
  At the time, Crim.R. 11(B)(2) provided, “[t]he 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 * * *.” Bowers at 150.




7.
       {¶ 12} We first considered the meaning of the term “explanation of

circumstances” in State v. Herman, 310 Ohio App.2d 134, 138, 286 N.E.2d 296 (6th

Dist.1971). We held that a judge could make a finding of guilty or not guilty from the

explanation of circumstances, but that “the statute did not indicate or require sworn

testimony.” Id. at paragraph one of the syllabus. We found that “[a]n oral reading of the

affiant officer’s notes written on the back page of the affidavit setting forth the offense is

a proper procedure, and meets the requirements of the statute that the court shall call for

an ‘explanation of circumstances,’ even though the officer is not present.” Id. at

paragraph three of the syllabus.

       {¶ 13} In City of Huron v. Bryant, 6th Dist. Erie No. E-90-71, 1991 WL 325734

(Dec. 6, 1991), we vacated a defendant’s conviction for driving under the influence and

driving under a suspended operator’s license. We found, despite the defendant’s waiver

of the reading of the reports in the matter, that the trial court “failed to state what he

considered to be the explanation of circumstances in finding Bryant guilty.” Id. at *3.

Interpreting Bowers, we opined that “the record must indicate that the court considered

sufficient evidence as an explanation of circumstances as a basis for finding a defendant

guilty following a no contest plea.” Id. at *3.

       {¶ 14} In State v. Parsons, 6th Dist. Wood No. WD-99-022, 2000 WL 281744

(Mar. 17, 2000), we found that the trial court failed to follow the mandates of R.C.

2937.07 when, “although appellant stipulated to the facts in the amended complaint, no




8.
explanation of circumstances was officially entered from which the trial court could make

its findings.” Id. at *2.

       {¶ 15} In State v. Muhammad, 6th Dist. Lucas No. L-00-1263, 2001 WL 1636436

(Dec. 21, 2001), we upheld trial court’s finding of guilt upon the defendant entering a

plea of no contest when the record revealed that the defendant admitted the facts as

presented by the state. Id. at *3. We held that “[d]ocumentary evidence may suffice as

an explanation of the circumstances supporting the charge, provided the record

demonstrates that the trial court actually considered that evidence in determining an

accused’s guilt or innocence.” Id., citing Bowers, 9 Ohio St.3d at 150-151, 459 N.E.2d

532; Chagrin Falls v. Katelanos, 54 Ohio App.3d 157, 159, 561 N.E.2d 992 (8th

Dist.1988).

       {¶ 16} In State v. Herbst, 6th Dist. Lucas No. L-03-1238, 2004-Ohio-3157, we

vacated the trial court’s finding of guilty following the defendant’s plea of no contest to

driving under the influence of alcohol. Upon examination of the record we found that the

trial court had offered “no explanation of what circumstances gave rise to [the] finding of

guilty.” Id. at ¶ 17. We explained that “an explanation of circumstances is mandatory

and must have enough information to support all the essential elements of the offense. It

cannot be presumed from a silent record.” Id. at ¶ 16.

       {¶ 17} In State v. Sabo, 6th Dist. Lucas No. L-08-1452, 2009-Ohio-6979, we

reversed the appellant’s conviction finding, in part, that the trial court failed to meet the

mandatory requirements set forth in R.C. 2937.07. There, the trial court did not address




9.
the accused upon counsel’s statement that his client wished to “enter a plea of no contest,

consent to a finding [of] guilt to the charges set forth in this matter.” In Sabo, we implied

that the trial court’s reference to the charge in the complaint was insufficient to meet the

requirements of R.C. 2937.07 when we held, “the record shows that the trial court did not

give an explanation of the circumstances supporting appellant’s no contest plea * * *.”

Id. at ¶ 31.

       {¶ 18} Most recently, in State v. Pugh, 6th Dist. Erie No. E-11-014, 2012-Ohio-

829, we explained that the “explanation of circumstances” provision “contemplates some

explanation of the facts surrounding the offense [so] that the trial court does not make a

finding of guilty in a perfunctory fashion.” Id. at ¶ 11. We held that the explanation

“necessarily involves, at a minimum, some positive recitation of facts which, if the court

finds them to be true, would permit the court to enter a guilty verdict and a judgment of

conviction on the charge to which the accused has offered a plea of no contest.” Id.,

citing State v. Osterfeld, 2d Dist. No. 20677, 2005-Ohio-3180, ¶ 6. We determined that

“[a]n explanation that merely restates the statutory elements of the offense is not

sufficient.” Id., citing State v. McGlothin, 2d Dist. No. 13460, 1993 WL 32023, *2

(Feb. 10, 1993).

       {¶ 19} In this case, the trial court entered a finding of guilt following a no contest

plea. The finding was made after the trial court noted, on the record, that it had

“review[ed] the complaint.” The state asserts that the trial court’s review of the complaint

satisfies the “explanation of the circumstances” requirement set forth in R.C. 2937.07. We




10.
disagree. Appellant entered a plea to a misdemeanor of the first degree. Thus, under a

plain reading of the statute, the trial court was not authorized to base a finding of guilty on

the facts alleged in the complaint. Rather, such finding could only be made after he called

for an “explanation of the circumstances of the offense.” The trial court’s reference that it

had reviewed the complaint was insufficient under the current statute and contrary to this

court’s interpretation of the term “explanation of circumstances.”

       {¶ 20} The trial court’s error was more than a procedural error, the trial court

made its finding of guilt in a perfunctory fashion, contrary to the Supreme Court’s

holding in Bowers, 9 Ohio St.3d at 150, 459 N.E.2d 532, and in violation of the

substantive right conferred by R.C. 2937.07. Thus, appellant’s sole assignment of error is

well-taken.

       {¶ 21} For the reasons set forth above, the judgment of the Toledo Municipal

Court is reversed. We remand this matter to the trial court for further proceedings

consistent with this decision. Costs of this appeal are taxed to appellee pursuant to

App.R. 24.


                                                                          Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




11.
                                                                     State v. Czech
                                                                     C.A. No. L-13-1141




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
James D. Jensen, J.                                       JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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