[Cite as State v. Lloyd, 2016-Ohio-331.]




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


State of Ohio                                   Court of Appeals No. L-15-1035

        Appellee                                Trial Court No. TRC-14-20997

v.

Karrie L. Lloyd                                 DECISION AND JUDGMENT

        Appellant                               Decided: January 29, 2016

                                           *****

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

        Tim A. Dugan, for appellant.

                                           *****

        JENSEN, P.J.

        {¶ 1} Defendant-appellant, Karrie L. Lloyd, appeals the January 13, 2015

judgment of the Toledo Municipal Court. For the reasons that follow, we reverse.
                                        I. Background

       {¶ 2} On July 2, 2014, Lloyd was charged with two counts of operating a vehicle

while intoxicated, violations of R.C. 4511.19(A)(1)(a) and (d), and driving outside

marked lanes, a violation of R.C. 4511.33. Lloyd waived her speedy trial rights. Pretrial

and trial dates were set and vacated a number of times. The parties appeared before the

trial court on December 9, 2014, at which time the court continued the trial to

December 18, 2014. The court wrote in its order that this continuance was to be the

“LAST REALLY,” however, during the December 18, 2014 appearance, counsel advised

the court that there had been a delay in the state’s response to discovery requests. On this

basis, defense counsel requested and was granted permission to file a motion to suppress

evidence despite the fact that the time for filing pretrial motions had passed. The court

reset the trial for January 13, 2015.

       {¶ 3} On January 5, 2015, Lloyd filed the motion to suppress. The court set it for

a hearing to take place on the same day and time as the trial. The parties’ understanding

was that the hearing on the motion to suppress would take place and, depending on the

outcome of the motion, the matter would perhaps proceed to trial. The state filed an

opposition to the motion on the day of the hearing, and Lloyd’s counsel quickly filed a

reply brief.

       {¶ 4} The parties appeared before the trial court on January 13, 2015, as scheduled

and advised the court that they were prepared to be heard on the motion. The transcript

of proceedings reflects that the trial court was displeased that Lloyd had waited until the




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week before trial to file her motion to suppress. Defense counsel reminded the court that

it had granted her permission to file the motion and set the motion hearing for that day.

While the court did not deny defense counsel’s representations, it questioned why

counsel had waited until January 5, 2015, to file the motion and it expressed perturbation

over being put in the position of having to either issue an immediate decision on the

motion or reset the trial date. Its concern was that the case would become overage before

a new trial date could be rescheduled. The court asked, “Why should I let counsel drive

this case overage and take the hit? I don’t get it.”

       {¶ 5} The state was willing to go forward with the hearing on Lloyd’s motion to

suppress; nevertheless, the trial court denied the motion without a hearing on the basis

that the case had been pending since July 3, 2014, the motion was filed late, and the case

would be overage before it could be reset for trial.

       {¶ 6} In light of the court’s ruling, Lloyd elected to enter a no contest plea and

preserve for appeal her objections over the trial court’s unwillingness to hear her motion

to suppress and its denial of that motion. The trial court proceeded directly to sentencing

without addressing Lloyd concerning her decision to enter the plea and without calling

for an explanation of the circumstances of the offense. Lloyd timely appealed and she

now assigns the following errors for our review:

              1. The Trial Court abused its discretion in refusing to hear

       Appellant’s motion to suppress as being untimely filed.




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              2. The Trial Court erred in finding Appellant guilty of OVI with

       insufficient legal evidence as the Trial Court received no explanation of the

       circumstances.

              3. The Trial Court failed to follow Crim.R. 11 as the Trial Court did

       not address Appellant during the no contest plea.

                               II. LAW AND ANALYSIS

       {¶ 7} In her first assignment of error, Lloyd argues that the trial court put the

Rules of Superintendence before her rights when it refused to hear her motion to suppress

due to its concern that the case would be overage before it could be set for a new trial

date. In her second assignment of error, she claims that her due process rights were

violated when the court entered a finding of guilt on the OVI offenses without adhering

to Crim.R. 11 or calling for an explanation of the circumstances of the offense, as

required by R.C. 2937.07. And in her third assignment of error, she contends that the

remedy for the court’s failure to call for an explanation of circumstances on the OVI

charges is to reverse her conviction and discharge her of criminal liability, rather than

merely to remand the case to the trial court. We begin by addressing Lloyd’s second and

third assignments of error.

       {¶ 8} Crim.R. 11(D) provides:

              In misdemeanor cases involving serious offenses the court may

       refuse to accept a plea of guilty or no contest, and shall not accept such plea

       without first addressing the defendant personally and informing the




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       defendant of the effect of the pleas of guilty, no contest, and not guilty and

       determining that the defendant is making the plea voluntarily. * * *

       {¶ 9} A “serious offense” means “any felony, and any misdemeanor for which the

penalty prescribed by law includes confinement for more than six months.” Crim.R.

2(C). The penalty for the two OVI offenses includes confinement for more than six

months. Crim.R. 11(E) provides that “[i]n misdemeanor cases involving petty offenses

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.” Crim.R. 11. The marked lanes offense is a minor misdemeanor.

       {¶ 10} Thus, for the OVI offenses, the court was required to personally address

Lloyd, inform her of the effect of her plea, and determine that she was making the plea

voluntarily. As to the marked lanes violation, it was required to inform her of the effect

of her plea. It is undisputed that the court failed to comply with either Crim.R. 11(D) or

(E). With respect to those violations, our case law makes clear that where there is

absolutely no compliance with this rule, prejudicial error is presumed and the defendant

is entitled to withdraw his or her plea on remand. State v. Carter, 6th Dist. Ottawa No.

OT-82-30, 1983 WL 13678, *3 (Mar. 18, 1983); City of Toledo v. Schaffer, 6th Dist.

Lucas No. L-85-146, 1985 WL 9350, *1-2 (Aug. 16, 1985).




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       {¶ 11} In addition to Crim.R. 11, R.C. 2937.07 provides, in pertinent part:

               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. * * *

       {¶ 12} The state does not dispute that with respect to the OVI offenses, R.C.

2937.07 required the trial court to call for an explanation of the circumstances of the

offenses. It also does not dispute that the trial court failed to do so before finding Lloyd

guilty. It argues, however, that (1) Lloyd waived the court’s error because she failed to

object, (2) she invited the error by distracting the court during the plea hearing, and

(3) there was no miscarriage of justice because if the allegations in the traffic citation

would have been read into the record, the facts contained in the citation would have

supported a conviction. The state’s arguments have all been addressed and rejected by

Ohio courts.

       {¶ 13} With respect to the state’s waiver argument, the Second District Court of

Appeals considered this issue in State v. Osterfeld, 2d Dist. Montgomery No. 20677,

2005-Ohio-3180. In rejecting the argument, the court reasoned:




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              First, when an explanation of circumstances is either deficient or

       entirely absent, there is legally insufficient evidence to support a conviction

       following a no-contest plea to a misdemeanor. * * * [T]he State bears the

       burden of providing legally sufficient evidence on each element of the

       charge. * * * In the context of a no-contest plea in a misdemeanor case,

       * * * “the explanation of circumstances serves as the evidence upon which

       the trial court is to base its finding of guilty or not guilty.” Thus, we

       believe a no-contest plea in a misdemeanor case also preserves a

       sufficiency-of-the-evidence argument for appeal.

              Second, even if [the defendant] had waived his challenge to the

       sufficiency of the evidence by failing to raise the issue in the trial court, it

       would remain subject to plain-error analysis. * * * In light of the well-

       established rule that “a no contest plea may not be the basis for a finding of

       guilty without an explanation of circumstances,” * * * we would find plain-

       error in the present case even if [the defendant] had waived his challenge to

       the sufficiency of the evidence. (Internal citations omitted.) Id. at ¶ 7-9.

       {¶ 14} We, too, reject the state’s waiver argument and we find plain error in the

court’s failure to call for an explanation of the circumstances of the offenses.

       {¶ 15} As to the state’s claim that Lloyd invited the error by distracting the court

during the proceedings, the Seventh District Court of Appeals addressed a similar issue in

City of Youngstown v. Rawson, 7th Dist. Mahoning Nos. 91 C.A. 15, 91 C.A. 16, 1992




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WL 64194 (Mar. 24, 1992). There, the court recognized that the complainant or his

representatives have the burden of providing the explanation of circumstances. Id. at *3.

Despite acknowledging that the defendant’s conduct contributed to the confusion that led

to the state’s failure to provide the explanation of circumstances, the court concluded that

it was bound by the record before it and that the defendant’s conduct did not relieve the

state of its duty to render the necessary explanation of circumstances. Id. at *4. We

agree with this conclusion.

       {¶ 16} And concerning the state’s argument that there was no miscarriage of

justice because if the allegations in the traffic citation would have been read into the

record, those facts would have supported a conviction, this argument was addressed and

squarely rejected by the Ohio Supreme Court in the seminal case of City of Cuyahoga

Falls v. Bowers, 9 Ohio St.3d 148, 151, 459 N.E.2d 532 (1984):

              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 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.




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       {¶ 17} Having found a violation of R.C. 2937.07, we next address the remedy for

this noncompliance. Lloyd argues that her conviction must be reversed and she must be

discharged from criminal liability. She cites a number of cases where we concluded that

R.C. 2937.07 had been violated, and we remanded “for further proceedings,” “for

proceedings consistent with [our] decision,” “for proceedings not inconsistent with [our]

decision,” or “for further proceedings consistent with [our] decision.” In those cases, we

provided no direction as to whether a new plea hearing should be conducted or whether

the defendant should be found not guilty and discharged upon remand. She represents

that the practice of the lower courts has been to conduct a new plea hearing.

       {¶ 18} Although not cited by either party, we have addressed the precise question

at issue in this case. In State v. Spinazze, 6th Dist. Lucas No. L-04-1274, 2005-Ohio-

1780, Spinazze entered a plea of no contest to a charge of reckless operation. Id. at ¶ 3.

No explanation of circumstances of the offense was provided, yet the trial court

proceeded to find Spinazze guilty. Id. at ¶ 3-8. On appeal, we reversed, agreeing with

Spinazze that the trial court committed error in pronouncing his guilt without eliciting an

explanation of the circumstances of the offense. Id. Spinazze argued that given the

failure to comply with R.C. 2937.07, his conviction should be vacated and that “he

should not be retried because the Double Jeopardy Clause bars an appellate court from

remanding for a new trial.” Id. at ¶ 9. We disagreed. Id. at ¶ 11. Distinguishing the U.S.

Supreme Court’s decision in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57




9.
L.Ed.2d 1 (1978), which Spinazze had relied on to support his position, we reasoned as

follows:

              [A] finding that trial error warrants reversal does not address

       whether the evidence was insufficient to sustain a guilty verdict; the trial

       court’s repair of reversible error on remand does not thereby subject the

       criminal defendant to double jeopardy. * * * When a conviction is reversed

       pursuant to R.C. 2937.07 and Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148,

       459 N.E.2d 532, an appellate court has found that the trial court committed

       error in its failure to pronounce the “circumstances of the offense.” This

       rule does not request or require an appellate court to determine whether

       those circumstances were sufficient to sustain the conviction. Therefore,

       the Double Jeopardy Clause is not violated when the case is remanded to

       the trial court. (Internal citations omitted.) Id. at ¶ 10.

       {¶ 19} Since Spinazze, however, we have recognized that a defendant who pleads

no contest has a substantive right to be acquitted where the state’s statement of facts fails

to establish all of the elements of the offense. In State v. Pugh, 6th Dist. Erie No. E-11-

014, 2012-Ohio-829, Pugh was charged with OVI violations and filed a motion to

suppress which was heard and denied by the trial court. Id. at ¶ 3-4. Despite the denial

of his motion to suppress, the state dismissed the OVI charges and instead charged Pugh

with a second offense reckless operation, a fourth degree misdemeanor, based on prior

convictions for traffic offenses within the preceding 12 months. Id. at ¶ 5, 8. Pugh




10.
entered a “no contest” plea and the court found him guilty. Id. at ¶ 5. On appeal, Pugh

argued that the trial court lacked sufficient evidence to support a conviction for reckless

operation. Id. at ¶ 8.

       {¶ 20} The transcript of the plea hearing indicated that the trial court made its

finding of guilt based on the testimony presented at the OVI suppression hearing in the

dismissed case. Id. We observed that other than the court’s statement that it had relied

on the testimony from the suppression hearing as the basis for its finding, there had been

no explanation of the circumstances as required by R.C. 2937.07. Id. at ¶ 12-13. In

considering the propriety of the court’s action, we recognized:

              On a plea of no contest to a misdemeanor offense, R.C. 2937.07

       provides that a court may find the defendant guilty or not guilty based on

       “the explanation of the circumstances of the offense.” The explanation

       requirement “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.” Further, R.C. 2937.07 gives “[a] defendant who

       pleads no contest a substantive right to be acquitted where the state’s

       statement of facts fails to establish all of the elements of the offense.”

       Therefore, 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.” (Citation




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       omitted.) An explanation that merely restates the statutory elements of the

       offense is not sufficient. (Internal citations omitted.) Id. at ¶ 11.

       {¶ 21} We held that what was presented at the suppression hearing was

insufficient to constitute an explanation of the circumstances for purposes of R.C.

2937.07, and that the transcript of the proceedings in the dismissed case was not properly

reviewable.1 Id. at ¶ 13, 16. We reversed the trial court judgment, and ordered Pugh

acquitted. Id. at ¶ 22.

       {¶ 22} In Pugh we did not specifically address the impact of the failure to elicit an

explanation of circumstances on the attachment of double jeopardy, but numerous

appellate districts have. Those courts have reached a conclusion contrary to the one we

reached in Spinazze.

       {¶ 23} For instance, in State v. Stewart, 2d Dist. Montgomery No. 19971, 2004-

Ohio-3103, the Second District held:

              Under R.C. 2937.07, when a no-contest plea is accepted in a

       misdemeanor case, the explanation of circumstances serves as the evidence

       upon which the trial court is to base its finding of guilty or not guilty. Here,

       that evidence was insufficient to support a conviction. When a conviction

       is reversed for insufficiency of the evidence, jeopardy has attached, and a


1
  Although our decision in Pugh was based on the absence of an explanation of
circumstances, we nevertheless offered an analysis explaining that even if the testimony
presented at the suppression hearing was reviewable, that testimony would not have
supported Pugh’s conviction. Id. at ¶ 17-19.




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       remand for a new determination of guilt or innocence is barred by double

       jeopardy. Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57

       L.Ed.2d 1. Thus, Stewart is entitled to the reversal of his conviction, and to

       be discharged.

       {¶ 24} The Third District reached the same conclusion in State v. Horvath, 2015-

Ohio-4729, -- N.E.3d --, ¶ 18 (3d Dist.), employing substantially similar language in its

reasoning:

              Under R.C. 2937.07, when a plea of no contest is accepted in a

       misdemeanor case, the explanation of circumstances serves as the evidence

       upon which the trial court is to base its finding of guilty or not guilty. Here,

       the evidence was insufficient to support Horvath’s conviction. When a

       conviction is reversed due to insufficient evidence, jeopardy attaches, and a

       remand for a new determination of guilt or innocence is prohibited by the

       Double Jeopardy Clauses of the Fifth Amendment to the United States

       Constitution and Article I, Section 10 of the Ohio Constitution. State v.

       Kareski, 137 Ohio St.3d 92, 998 N.E.2d 410, 2013-Ohio-4008, ¶ 14, citing

       Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

       {¶ 25} Consistent with the Second and Third Districts, the Fifth District held in

State v. Smyers, 5th Dist. Muskingum No. CT 2004-0039, 2005-Ohio-2912, ¶ 17-19:

              [W]e find the failure to provide the “explanation of circumstances”

       was not trial error, but instead resulted in insufficient facts to support a




13.
       finding of guilt. If a judge does not find sufficient facts to support a finding

       of guilt, he or she may dismiss the charge or find the defendant guilty of a

       lesser included offense which is shown by those alleged facts. State v.

       Thorpe (1983), 9 Ohio App.3d 1, 457 N.E.2d 912, paragraph two of the

       syllabus. * * * Thus, we conclude double jeopardy attached when we

       reversed this matter on the basis of insufficient evidence for failure to

       comply with R.C. 2937.07.

       {¶ 26} And in State v. Fordenwalt, 9th Dist. Wayne No. 09CA0021, 2010-Ohio-

2810, ¶ 11, the Ninth District held:

              Mr. Fordenwalt has argued that, because there was no explanation of

       the circumstances, he should be discharged. As noted earlier, under Section

       2937.07, “[a] plea to a misdemeanor offense of ‘no contest’ . . . shall

       constitute a stipulation 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 record does not contain an explanation of circumstances

       upon which the court can predicate a finding of guilty, it is the duty of the

       court to find the defendant not guilty. State v. Stewart, 2d Dist. No. 19971,

       2004 WL 1352628 at *3 (June 10, 2004). Moreover, “[if] a conviction is

       reversed for insufficiency of the evidence, jeopardy has attached, and a

       remand for a new determination of guilt or innocence is barred by double




14.
       jeopardy.” Id. The defendant “is entitled to the reversal of his conviction,

       and to be discharged.” Id.; see also State v. Valentine, 1st Dist. No.

       C-070388, 2008-Ohio-1842, at ¶ 9; State v. Smyers, 5th Dist. No. CT 2004-

       0039, 2005-Ohio-2912, at ¶ 19; City of Broadview Heights v. Krueger, 8th

       Dist. No. 88998, 2007-Ohio-5337, at ¶ 13, 17; State v. Hoskins, 12th Dist.

       No. CA98-07-143, 1999 WL 527796 at *3 (June 14, 1999).

       {¶ 27} In addition to the above cases, other appellate districts have determined—

without explicitly addressing whether double jeopardy attached— that the defendant must

be discharged where the trial court enters a finding of guilt without eliciting an

explanation of circumstances. See, e.g., City of Youngstown v. Rawson, 7th Dist.

Mahoning No. 91 C.A. 15, 91 C.A. 16, 1992 WL 64194, *5 (Mar. 24, 1992) (“While the

court had sufficient documentary evidence to find the appellants guilty, the court did not

render the necessary explanation of circumstances into the record. * * * The judgment of

the trial court is reversed and the appellants are discharged.”); State/City of Hamilton v.

Hoskins, 12th Dist. Butler No. CA98-07-143, 1999 WL 527796, *3 (June 14, 1999) (“In

light of all of the foregoing, we find that the prosecutor’s total lack of explanation of

circumstances fails to state facts sufficient to establish all the elements of the charge. As

a result, under R.C. 2937.07 and the principles enunciated under Bowers and Hubbard,

appellant has a substantive right to be discharged by a finding of not guilty.”)

       {¶ 28} Upon considering the reasoning of the various appellate districts that have

addressed the remedy for failure to comply with R.C. 2937.07, we are convinced that




15.
those courts correctly concluded that such error is more than mere trial error, but is

instead a failure to establish facts sufficient to support a conviction. As such, double

jeopardy attaches, thereby preventing the state from getting a second chance to meet its

burden. This conclusion is consistent with our more recent pronouncement in Pugh, 6th

Dist. Erie No. E-11-014, 2012-Ohio-829. For these reasons, we overrule our decision in

Spinazze, 6th Dist. Lucas No. L-04-1274, 2005-Ohio-1780, and we find that Lloyd must

be acquitted of the OVI offenses.

       {¶ 29} Our conclusion obviates the need for remand on the Crim.R. 11(D)

violations. With respect to the Crim.R. 11(E) violation, however, on the marked lanes

offense, we reverse and remand for a new plea hearing.

       {¶ 30} We find Lloyd’s second and third assignments of error well-taken. In light

of this decision, we need not address Lloyd’s first assignment of error.

                                    III. CONCLUSION

       {¶ 31} For the foregoing reasons, we find Lloyd’s second and third assignments of

error well-taken, and we decline to address his first assignment of error. We reverse the

trial court’s January 13, 2015 judgment. With respect to her convictions under R.C.

4511.19(A)(1)(a) and (d), we discharge her. With respect to her conviction under R.C.

4511.33, we vacate her plea and remand the matter to the trial court for further

proceedings. The state is ordered to pay the costs of this appeal under App.R. 24.


                                                                           Judgment reversed.




16.
                                                                      State v. Lloyd
                                                                      C.A. No. L-15-1035




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




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.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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