[Cite as State v. Agosta, 2011-Ohio-5090.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   William B. Hoffman, P.J.
                                               :   Sheila G. Farmer, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 11-CA-08
                                               :
                                               :
BRIAN P. AGOSTA                                :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Fairfield County
                                                    Municipal Court Case No. 10-CRB-
                                                    01749

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             September 29, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

STEPHANIE L. HALL                                   SCOTT P. WOOD
Assistant City Prosecutor                           Dagger, Johnson, Miller, Ogilvie &
City of Lancaster Law Director’s Office             Hampson
123 East Chestnut Street                            144 East Main Street
P.O. Box 1008                                       P.O. Box 667
Lancaster, Ohio 43130                               Lancaster, Ohio 43130
[Cite as State v. Agosta, 2011-Ohio-5090.]


Edwards, J.

        {¶1}     Appellant, Brian Agosta, appeals a judgment of the Fairfield County

Municipal Court convicting him of abusing harmful intoxicants (R.C. 2925.31). Appellee

is the State of Ohio.

                                    STATEMENT OF FACTS AND CASE

        {¶2}     On July 28, 2010, Officer Eric Spiegel of the Lancaster Police Department

found appellant asleep or unconscious in the driver’s seat of his motor vehicle while

stopped at a stop sign. The officer found three canisters in the vehicle, including one on

appellant’s lap. After the officer turned the car off and awakened appellant, he asked

appellant about the canister that had been on appellant’s lap. Appellant responded that

it was compressed air and he was using it to get high.

        {¶3}     Appellant was charged with one count of abusing harmful intoxicants. The

case proceeded to bench trial in the Fairfield County Municipal Court. Following trial,

the court made a finding of guilty from the bench. However, the judgment of conviction

and sentence issued by the trial court indicates that appellant entered a plea of guilty.

Appellant assigns two errors on appeal:

        {¶4}     “I.   THE       TRIAL       COURT   ERRED   IN   ADMITTING    HEARSAY

STATEMENTS AT TRIAL.

        {¶5}     “II. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT APPELLANT

OF ABUSING HARMFUL INTOXICANTS.”
Fairfield County App. Case No. 11-CA-08                                                    3


                                                I, II

       {¶6}   As noted in the statement of facts and case, this case appears from the

record to have been tried to the bench, as we have a transcript of a bench trial.

However, the court’s judgment states:

       {¶7}   “The above named Defendant appeared in Court on 1-18-11, and entered

a plea of GUILTY to the charge of ABUSING HARMFUL INTOXICAN (sic), in violation

of Section 2925.31 of the Ohio Revised Code/City Ordinance.”

       {¶8}   Following this statement, the form entry includes a series of boxes to be

checked for “manner of conviction,” with the choices being plea, no contest plea, court

trial or jury trial. The trial court did not check a box indicating the manner of conviction

was bench trial or plea.     The court then goes on to make a finding of guilty and

sentence appellant.

       {¶9}   It appears from the record of the trial that the court’s judgment entry

incorrectly reflects the manner of conviction.          Because a court speaks through its

journal, it is imperative that the court’s journal reflect the truth. State ex rel. Worcester

v. Donnellon (1990), 49 Ohio St.3d 117, 118, 551 N.E.2d 183, 184. All litigants have a

legal right to have their proceedings correctly journalized. Id. at 119, 551 N.E.2d at 185.

Therefore, making an incorrect journal entry is a clear abuse of discretion by the trial

court. Id. at 120, 551. N.E.2d 15 185.

       {¶10} If in fact the journal entry is correct and appellant did at some point enter a

plea of guilty that is not reflected by the transcript in the instant case, both of his

assignments of error are waived. A plea of guilty waives all appealable errors which

may have occurred at trial, unless such errors are shown to have precluded the
Fairfield County App. Case No. 11-CA-08                                                 4

defendant from voluntarily entering into his or her plea pursuant to Crim. R. 11. State v.

Kelley (1991), 57 Ohio St.3d 127, 128, 556 N.E.2d 658. Therefore, it is imperative that

the judgment of conviction and sentence accurately reflect the manner of conviction in

this case.

       {¶11} This cause is accordingly remanded to the Fairfield County Municipal

Court with instructions to issue a new judgment of conviction and sentence accurately

reflecting the manner of conviction.




By: Edwards, J.

Farmer, J. concurs

Hoffman, P.J. dissents without opinion

                                                   ______________________________



                                                   ______________________________



                                                   ______________________________

                                                                JUDGES

JAE/r0729
[Cite as State v. Agosta, 2011-Ohio-5090.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
BRIAN P. AGOSTA                                   :
                                                  :
                        Defendant-Appellant       :       CASE NO. 11-CA-08




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Fairfield County Municipal Court is reversed and remanded to the

Fairfield County Municipal Court for further proceedings. Costs assessed to appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
