[Cite as Brecksville v. Grabowski, 2017-Ohio-7885.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104973



                              CITY OF BRECKSVILLE
                                                            PLAINTIFF-APPELLEE

                                                      vs.


                                  JASON GRABOWSKI
                                                            DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Criminal Appeal from the
                                  Garfield Heights Municipal Court
                                      Case No. CRB 1600693

        BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                           September 28, 2017
ATTORNEY FOR APPELLANT

Paul V. Wolf
Paul V. Wolf Co.
50 Public Square, Suite 920
Cleveland, Ohio 44113



ATTORNEY FOR APPELLEE

Sergio I. DiGeronimo
Prosecutor, City of Brecksville
8748 Brecksville Road, Suite 216
Brecksville, Ohio 44141
MARY EILEEN KILBANE, P.J.:

       {¶1} Defendant-appellant, Jason Grabowski (“Grabowski”), appeals the trial

court’s denial of his motion to withdraw his no contest plea. For the reasons set forth

below, we reverse and remand.

       {¶2} Grabowski and his girlfriend, Janice Malishefski (“Malishefski”) were both

charged with one count of first-degree misdemeanor assault in Garfield Heights

Municipal Court.        These assault charges stemmed from an alleged physical

confrontation between Grabowski and Malishefski over a text message Grabowski

received, which Malishefski thought was from another woman.              They each made

separate 911 calls to report the other for assault.

       {¶3} On April 4, 2016, Grabowski, without the benefit of counsel, entered a no

contest plea to an amended charge of disorderly conduct, a fourth-degree misdemeanor.

On the same day, he was sentenced to 30 days in jail, which the court suspended, fined

$150, assessed court costs, and was placed on one year of inactive probation.

       {¶4} On April 29, 2016, Grabowski filed a motion to vacate or withdraw his no

contest plea and sentence under Crim.R. 32.1.          The trial court ordered briefing on

Grabowski’s motion and scheduled a hearing.           The court held a hearing and denied

Grabowski’s motion.

       {¶5} It is from this judgment that Grabowski now appeals, raising the following

assignment of error for review.
                                    Assignment of Error

       The trial court abused its discretion in failing to correct a manifest injustice

       by denying [Grabowski’s] motion to withdraw his formerly entered [no

       contest] plea.

        {¶6} In May 2017, we sua sponte ordered the parties to address the issue of the
trial court’s acceptance of Grabowski’s no contest plea without first advising him of his
right to counsel and obtaining his waiver of counsel. In the supplemental brief on this
issue, Grabowski raises the following additional assignment of error:

                            Supplemental Assignment of Error

       The trial court erred to the prejudice of [Grabowski] in accepting his plea of

       [no contest] prior to advising him of his right to counsel so that his [no

       contest] plea was not knowing, intelligent and voluntary.

       {¶7} We will first consider Grabowski’s supplemental assignment of error

because we find it dispositve of this appeal.    While the parties were ordered to brief the

issue of the trial court’s failure to advise Grabowski of his right to counsel prior to

accepting his no contest plea, both of the parties addressed whether the trial court

complied with Crim.R. 11(E). We also note that Grabowski did not directly appeal his

conviction and sentence, but rather filed a postsentence motion to withdraw his plea with

the trial court within the time frame that he could have filed a direct appeal.
        {¶8} In this supplemental assignment of error, Grabowski argues the trial court

erred in failing to advise him of his right to counsel prior to taking his uncounseled plea.

Grabowski also argues that “there was not * * * substantial compliance with the

requirements of [Crim.R. 11]” and “it appears there was no compliance [with Crim.R. 11]

at all” when the trial court accepted his plea.           We agree that the trial court erred in

accepting his uncounseled no contest plea without first advising him of his right to

counsel and obtaining his written waiver of counsel on the record. We also find that his

plea is invalid because the trial court failed to advise him of the effect of his no contest

plea as required by Crim.R. 11(E).1

        {¶9} Crim.R. 32.1 provides that “to correct manifest injustice[,] the court may set

aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

A “manifest injustice” is defined as a clear or openly unjust act. State ex rel. Schneider

v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699 N.E.2d 83. We review a trial

court’s denial of a postsentence motion to withdraw a plea under an abuse of discretion

standard. State v. Alford, 8th Dist. Cuyahoga No. 93911, 2010-Ohio-4130, ¶ 11.

        {¶10} It is undisputed that Grabowski’s fourth-degree disorderly conduct

conviction is a petty offense.          The Ohio Supreme Court has clarified that before



        1  Although Grabowski arguably could have raised the magistrate’s failures to advise him of
the effect of his plea and his right to counsel on direct appeal, these failures are not mere procedural
deficiencies, but directly relate to whether his plea was knowingly, voluntarily, and intelligently made.
  We have previously held that a trial court abuses its discretion and commits reversible error in
denying a defendant’s motion to withdraw his petty misdeameanor no contest plea where he did not
file a direct appeal, but the record of the plea hearing shows that the defendant was not advised of the
accepting a plea to a petty misdemeanor offense under Crim.R. 11(E), the trial judge must

inform the defendant of the information contained in Crim.R. 11(B)(2).                    State v.

Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 27-28.

       {¶11} Ohio Crim.R. 11(E) sets forth the requisite notice to be given to a defendant

at a plea hearing on a petty offense.   It 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 a plea
       without first informing the defendant of the effect of the pleas of guilty, no
       contest, and not guilty.

       The counsel provisions of Crim.R. 44(B) and (C) apply to division (E) of
       this rule.

(Emphasis added.) Id.

       {¶12} Crim.R. 11(B)(2) defines the effect of a no contest plea as follows:

       The 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, and the plea or admission shall not be used against the defendant

       in any subsequent civil or criminal proceeding.

       {¶13} This court has previously held that a trial court’s failure to make any

mention of the language of Crim.R. 11(B)(2) regarding the effect of a no contest plea to a

petty misdemeanor offense is a complete failure to comply with Crim.R. 11(E), requiring

the plea to be vacated. Parma v. Buckwald, 8th Dist. Cuyahoga Nos. 92354 and 92356,

2009-Ohio-4032, ¶ 45-46. We reached this conclusion based on the Ohio Supreme


effect of his plea. Solon v. Bollin-Booth, 8th Dist. Cuyahoga No. 97099, 2012-Ohio-815.
Court’s holding in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.



       {¶14} In Clark, the Ohio Supreme Court instructed that

       [w]hen the trial judge does not substantially comply with Crim.R. 11 in
       regard to a nonconstitutional right, reviewing courts must determine
       whether the trial court partially complied or failed to comply with the rule.
       If the trial judge partially complied, e.g., by mentioning mandatory
       postrelease control without explaining it, the plea may be vacated only if the
       defendant demonstrates a prejudicial effect. * * * The test for prejudice is
       “whether the plea would have otherwise been made.” * * * If the trial judge
       completely failed to comply with the rule, e.g., by not informing the
       defendant of a mandatory period of postrelease control, the plea must be
       vacated. * * * “A complete failure to comply with the rule does not
       implicate an analysis of prejudice.”

(Internal citations omitted.) Id. at ¶ 32.

       {¶15} Here, the record reveals that neither the magistrate nor the plea forms made

any mention of the effect of Grabowski’s no contest plea as required by Crim.R. 11(E).2

The forms executed by Grabowski without the benefit of counsel at his arraignment and

at his plea hearing do not contain the language of Crim.R. 11(B)(2) and do not mention

the effect of his no contest plea.   Moreover, at Grabowski’s plea hearing, the magistrate

did not make a finding of guilt, but rather treated Grabowski’s no contest plea as if it

were a guilty plea and proceeded directly to sentencing.     Because the trial court failed to

comply with Crim.R. 11(E) as it applies to Grabowski’s no contest plea, a prejudice

analysis is not necessary. Clark at ¶ 32; Buckwald at ¶ 45.


       2  Crim.R. 19 authorizes magistrates to accept and enter no contest pleas in misdemeanor
cases, provided the requirements of Crim.R. 11 are met. Bollin-Booth, 8th Dist. Cuyahoga No.
97099, 2012-Ohio-815, ¶ 20.
        {¶16} Accordingly, Grabowski’s plea must be vacated.

        {¶17} Additionally, the record does not affirmatively demonstrate that the court

obtained a valid waiver of Grabowski’s right to counsel prior to accepting his no contest

plea.

        {¶18} Crim.R. 44 governs appointment of counsel. It provides, in relevant part:

        (B) Counsel in petty offenses. Where a defendant charged with a petty
        offense is unable to obtain counsel, the court may assign counsel to
        represent him. When a defendant charged with a petty offense is unable to
        obtain counsel, no sentence of confinement may be imposed upon him,
        unless after being fully advised by the court, he knowingly, intelligently, and
        voluntarily waives assignment of counsel.

        (C) Waiver of counsel. Waiver of counsel shall be in open court and the
        advice and waiver shall be recorded as provided in Rule 22. In addition, in
        serious offense cases the waiver shall be in writing.

(Emphasis added.) Id.

        {¶19} We have held that “[t]he requirements of the Criminal Rules are mandatory;

all waivers of counsel must be made in open court and must be recorded.” (Emphasis

added.)    Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309 (8th

Dist.1984),    citing State v. Haag, 49 Ohio App.2d 268, 270, 360 N.E.2d 756 (9th

Dist.1976).    “[C]ourts induldge every reasonable presumption against a waiver of

fundamental constitutional rights[;] * * * that waiver must affirmatively appear on the

record.” (Internal citations omitted.) Brewer. The burden is on the city to demonstrate a

valid waiver of constitutional rights. Id. at 218, citing Boykin v. Alabama, 395 U.S. 238,

242 (1969).
       {¶20} We note that the right to counsel attaches at all “critical stages” of the

criminal process.    Columbus v. Abrahamson, 10th Dist. Franklin No. 13AP-1077,

2014-Ohio-3930, ¶ 5.       A plea hearing is a critical stage of the criminal process at which

the right to counsel applies. Id.    “‘The entry of a guilty plea, whether to a misdemeanor

or a felony charge, ranks as a ‘critical stage’ at which the right to counsel adheres.’” Id.,

quoting Iowa v. Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). To

establish an effective waiver of the right to counsel, the trial court must make a sufficient

inquiry to determine whether the defendant fully understands and intelligently

relinquishes that right.    Garfield Hts. v. Williams, 8th Dist. Cuyahoga No. 102279,

2016-Ohio-381, ¶ 11, citing State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976),

paragraph two of the syllabus.

       {¶21}   A review of the record reveals that it was not until after Grabowski

entered his no contest plea that the magistrate attempted to attain Grabowski’s waiver of

counsel.

       THE COURT: All right. Having said all that, Mr. Grabowski, how do you
       want to plea to the amended charge of disorderly conduct, a misdemeanor
       of the fourth degree?

       [GRABOWSKI]: No contest, your Honor.

       ***

       THE COURT: All right. I’m handing you guys [referring to Grabowski
       and Malishefski] a plea form  or a change of plea form, I should say.
       And it basically says you’re changing your plea to no contest, that you’re a
       United States Citizen.

       [GRABOWSKI]: Yes.
       THE COURT: You waive your right to be represented by a lawyer, and
       consent to me hearing it instead of the judge. Okay? Excuse me. This is
       for [Grabowski]. And this is for [Malishefski]. You both want to sign
       that. It’s just one page, front of the  or front of the page only, you sign.
       Thank you, sir.

       [GRABOWSKI]: Sure.

Here, Grabowski was initially given the incorrect change of plea form and was not

provided with the form the court uses for pleas taken by a magistrate until after he made

his plea.   The change of plea and waiver of rights form that Grabowski signed on the

magistrate’s instruction did contain a waiver of his right to counsel, but it is clear from

the record that this form was not executed until after he had made his plea.

       {¶22} Accordingly, the magistrate violated Grabowski’s right to counsel by

proceeding with his plea hearing prior to obtaining his waiver of counsel on the record.

Therefore, the imposition of the 30-day suspended jail sentence was in violation of

Crim.R. 44(B).

       {¶23} We do not find that Grabowski knowingly, voluntarily, and intelligently

entered his no contest plea in light of the court’s failure to advise him of the effect of his

plea and to make sufficient inquiry into whether he knowingly, voluntarily, and

intelligently waived his right to counsel prior to accepting his plea.

       {¶24} Grabowski’s supplemental assignment of error is sustained.

       {¶25} In light of our finding as to Grabowski’s supplemental assignment of error,

we overrule his first assignment error as moot.    App.R. 12(A)(1)(c).

       {¶26} Judgment is reversed and the case is remanded with instructions to vacate
Grabowski’s plea.

      It is ordered that appellant recover of appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Garfield

Heights Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., CONCURS;
SEAN C. GALLAGHER, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

      {¶27} I respectfully dissent. After oral argument, we directed the parties “to

address the issue of the trial court’s acceptance of Grabowski’s guilty plea without first

advising Grabowski of his right to counsel.”         The city responded by referencing

Grabowski’s March 30, 2016 signed acknowledgment of being advised in open court of

his right to be represented by an attorney in the proceeding. The change of plea hearing

occurred on April 4, 2016, and therefore, the city satisfied any concern with respect to

notifying Grabowski of his right to counsel before he pleaded no contest to the charges.

      {¶28} At the change of plea hearing, the trial court went through most of

Grabowski’s rights a second time before orally asking for his plea — the trial court had
inadvertently missed the right to counsel. Immediately after Grabowski announced his

intention to plead no contest, however, the trial court handed him a “change of plea”

form, which detailed all the rights Grabowski sacrificed in pleading no contest, and the

trial court orally advised Grabowski of his right to counsel. Grabowski signed the form,

formally pleaded no contest, and acknowledged for at least the second time in writing that

he had been advised of his right to counsel. He also affirmatively waived his right to

counsel.

      {¶29} During the hearing on his motion to withdraw the plea, Grabowski conceded

that he was not challenging any procedural aspects of the change of plea hearing. Tr.

5:17-23. This would include a concession as to whether Grabowski was advised of the

effects of the no-contest plea.     Thus, the only issue preserved was Grabowski’s

uncounseled plea. Id. Grabowski claimed that had he retained counsel, the attorney

would have conducted discovery to find that the allegations in the complaint were

unfounded. Evidently, the other person involved in the scuffle that led to the disorderly

conduct charge recanted after Grabowski pleaded no contest. The trial court concluded

that Grabowski was aware of what occurred during the incident giving rise to the

complaint and, therefore, Grabowski failed to demonstrate a manifest injustice. The trial

court correctly defined “manifest injustice” as a fundamental flaw in the proceedings,

which results in a miscarriage of justice. State v. Lintner, 7th Dist. Carroll No. 732,

2001-Ohio-3360, *7, citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324

(1977).
      {¶30} Our review is limited to determining whether the trial court abused its

discretion by overruling a post-sentence motion to withdraw a plea. State v. Lopez, 10th

Dist. Franklin No. 16AP-478, 2017-Ohio-4048, ¶ 8. When a convicted offender files a

motion to withdraw a plea after the sentence is imposed, a trial court is required to

determine whether withdrawing the plea would correct a manifest injustice. Id. at ¶ 7.

The majority does not find error with the denial of the motion to withdraw the plea, but

instead finds error in the trial court accepting the no contest plea because it was not

voluntarily, knowingly, or intelligently entered. In other words, the majority is applying

the standard of review for an offender seeking to withdraw his plea before the sentence is

imposed. See, e.g., State v. Small, 8th Dist. Cuyahoga No. 104813, 2017-Ohio-110, ¶ 12.

We need not address whether the plea was knowingly, voluntarily, and intelligently

entered. The issue before this court is whether the trial court abused its discretion in

finding that Grabowski failed to demonstrate a manifest injustice under Crim.R. 32.1.

      {¶31} The record demonstrates that Grabowski was properly advised of his right to

counsel and affirmatively waived that right. Crim.R. 32.1; State v. Bush, 96 Ohio St.3d

235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 8. Further, Grabowski conceded that there

were no flaws in the change of plea proceeding. A defendant can only establish a

manifest injustice in “extraordinary cases.” Smith at 264. “The standard rests upon

practical considerations important to the proper administration of justice, and seeks to

avoid the possibility of a defendant pleading guilty to test the weight of potential

punishment.” Id., citing Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963);
State v. Godwin, 8th Dist. Cuyahoga No. 103224, 2016-Ohio-117, ¶ 12 (recognizing that

defendants should not be encouraged to tentatively plead guilty in order to test the

consequences of that decision), citing State v. Britton, 8th Dist. Cuyahoga No. 98158,

2013-Ohio-99.

      {¶32} Although I sympathize with Grabowski’s change of heart, in large part

because of his realizing the practical effects of a conviction (he was supposedly fired

from his job because of it), we cannot condone the practice of allowing defendants the

opportunity to plead to lesser charges to first test the consequences before deciding

whether to abide with the plea deal. Godwin at ¶ 12. This is not an extraordinary

circumstance, nor has Grabowski explained how it could be considered as such.

Grabowski acknowledged his being advised of all the rights he sacrificed in pleading no

contest on at least two occasions, and on a third occasion, the trial court orally advised

him of all but his right to counsel, before the change of plea was formally entered.

Further, Grabowski conceded that there were no procedural flaws in the change of plea

process. There is no manifest injustice, and I would affirm.
