[Cite as State v. Hill, 2018-Ohio-1345.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 7-17-07

        v.

BENJAMIN D. HILL,
                                                           OPINION
        DEFENDANT-APPELLANT.




                         Appeal from Napoleon Municipal Court
                              Trial Court No. 17CRB0639

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                               Date of Decision: April 9, 2018




APPEARANCES:

        Alan J. Lehenbauer for Appellant

        Anthony C. Johnson for Appellee
Case No. 7-17-07


SHAW, J.

       {¶1} Defendant-Appellant, Benjamin D. Hill (“Hill”), appeals the September

21, 2017 judgment of the Napoleon Municipal Court, convicting him, following a

guilty plea, of one count of persistent disorderly conduct in violation of R.C.

2917.11(A)(1), (E)(3)(a), a misdemeanor of the fourth degree. On appeal, Hill

claims that the underlying complaint initiating this case failed to properly invoke

the trial court’s jurisdiction because it did not comply with Crim.R. 3, and that the

trial court failed to comply with Crim.R. 11(E) when it accepted his guilty plea.

       {¶2} On July 12, 2017, a complaint and probable cause affidavit were filed

alleging that Hill “did knowingly cause or attempt to cause physical harm to a family

or household member.” (Doc. No. 1). The complaint further indicated that Hill’s

alleged conduct constituted the offense of domestic violence in violation of R.C.

2919.25(A), a misdemeanor of the first degree. The probable cause affidavit

accompanying the complaint set forth the details of the offense, stating that the

victim found at the household claimed Hill had “slapped her 3 times in [sic] the left

side of the face, with an open hand, and choked her by placing his hand around her

neck and pushing her into the refrigerator.” Both the complaint and affidavit were

signed by the responding law enforcement agent, Sergeant Robinson of the Deshler

Police Department, and displayed a notary public stamp current in commission. Hill

was subsequently arraigned and pled not guilty.


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        {¶3} On September 21, 2017, Hill appeared in court represented by counsel

and withdrew his not guilty plea and entered a plea of guilty to an amended charge

of persistent disorderly conduct, a fourth degree misdemeanor. The trial court

accepted Hill’s guilty plea and sentenced him to serve 30 days of incarceration, all

suspended upon certain conditions, and to pay a $50.00 fine, plus court costs.

        {¶4} Hill filed this appeal, asserting the following assignments of error.

                        ASSIGNMENT OF ERROR NO. 1

        THE TRIAL COURT LACKED JURISDICTION BASED ON A
        COMPLAINT THAT WAS INVALID UNDER CRIMINAL
        RULE 3.

                        ASSIGNMENT OF ERROR NO. 2

        THE TRIAL COURT ERRED IN ACCEPTING THE
        DEFENDANT’S PLEA BY FAILING TO COMPLY WITH
        CRIMINAL RULE 11(E).

        {¶5} For ease of discussion, we elect to address the assignments of error out

of order.

                             Second Assignment of Error

        {¶6} In his second assignment of error, Hill contends that the trial court erred

in failing to substantially comply with Crim.R. 11(E) when it accepted his guilty

plea.

        {¶7} Crim.R. 11 sets forth distinct procedures for the trial court to follow in

accepting a plea, with the procedures varying based upon whether the offense


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involved is a misdemeanor that is a petty offense, a misdemeanor that is a serious

offense, or a felony. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 11. For

a “petty offense” misdemeanor, such as Hill’s persistent disorderly conduct offense,

the trial court was required only to inform Hill of the effect of his guilty plea. Jones

at ¶ 14; Crim.R. 11(E); see Crim.R. 2 (defining classifications of offenses).

       {¶8} The Supreme Court of Ohio has held that, to satisfy the requirement of

informing a defendant of “the effect of the plea” before accepting a guilty plea to a

petty misdemeanor, the court is required to inform the defendant that the plea is a

complete admission of guilt. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093 at ¶ 25.

Unlike the provisions applicable to more serious offenses, Crim. R. 11(E) does not

require the trial court to personally address the defendant and determine that the

defendant understands the nature of the charge and is entering the plea voluntarily.

State v. Wright, 2d Dist. Montgomery No. 26471, 2015-Ohio-3919, ¶ 17.

       {¶9} While literal compliance with Crim.R. 11 is preferred, such compliance

is not required when the trial court informs the defendant of a nonconstitutional

right, as is “[t]he right to be informed that a guilty plea is a complete admission of

guilt.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12; see also, State v.

Beach, 9th Dist. Summit Nos. 26021, 27124, 2015-Ohio-3445, ¶ 31, citing State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 29-32. Consequently, in cases

involving the trial court’s explanation of the effect of a guilty plea, we must only


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engage in “a substantial compliance analysis.” Griggs at ¶ 12. Under this standard

of review, “a slight deviation from the text of the rule is permissible[ ] so long as

the totality of the circumstances indicates that ‘the defendant subjectively

understands the implications of his plea and the rights he is waiving[.]’ ” Clark at ¶

31, quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).

       {¶10} Here, prior to accepting his guilty plea, the trial court addressed Hill

and stated the following:

       So Mr. Hill, you realize then that the Court is approving that
       amendment [from a change of domestic violence to disorderly
       conduct] and you would be pleading guilty to an allegation under
       2917.11(A)(1)(E)(3)(a), and that on or about July 11, 2017 you did
       in the Village of Deshler, Henry County, State of Ohio, knowingly
       engage in fighting and threatening harm to persons or property
       or a violent or turbulent behavior and persisted in that disorderly
       conduct after a reasonable warning or requested assist. It is a
       misdemeanor of the fourth degree and it is punishable by up to
       thirty days in jail, a $250 fine or both. If you do wish to plead
       guilty to that charge there is a written waiver for you to sign.
       Please read over this waiver with your attorney, initial lines three
       and four and date and sign the bottom where indicated. The
       Court will find the defendant knowingly, voluntarily and
       intelligently with full understanding of his rights waived those
       rights and enters a plea of guilty to a charge as amended. The
       Court would accept his plea and find him guilty.

(Doc. No. 26 at 3).

       {¶11} The record further indicates that at the time of entering his guilty plea,

Hill also signed and initialed a written statement acknowledging the wavier of his

right to a trial and/or a trial by jury. We believe the record supports a finding that


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Case No. 7-17-07


the totality of the circumstances indicates that Hill subjectively understood the

implications of his plea and the rights he was waiving, and thus, the trial court

substantially complied with Crim.R. 11(E).

       {¶12} Even assuming that the trial court failed to satisfy its obligation under

Crim.R. 11 to inform Hill of the effect of his guilty plea, the Supreme Court of Ohio

has held that a defendant must establish that the failure to comply with

nonconstitutional rights, such as the information contained in Crim.R. 11(B)(1),

resulted in prejudice, meaning the defendant would not have entered his plea. Jones,

116 Ohio St.3d 211, 2007-Ohio-6093 at ¶ 52.

       {¶13} There is no evidence of prejudice in this case. At the change of plea

hearing, Hill did not claim innocence. Instead, he acknowledged that he “made a

mistake” and “apologize[d] to the State for the inconvenience.” (Doc. No. 26 at 4).

By failing to assert his innocence, Hill is “presumed to understand that a plea of

guilty is a complete admission of guilt.” Jones at ¶ 54, citing State v. Griggs, 103

Ohio St.3d 85, 2004-Ohio-4415, ¶ 19. Hill further requested that his recommended

sentence of thirty days of jail suspended be “filed” as thirty days with credit for time

served. The Court explained to Hill that he was not eligible for credit because he

was serving time on another case while awaiting the resolution in the case sub

judice. Accordingly, we are not persuaded by Hill’s arguments on appeal that the




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trial court erred in accepting his guilty plea and the second assignment of error is

overruled.

                             First Assignment of Error

       {¶14} In his first assignment of error, Hill asserts that the trial court lacked

jurisdiction to hear the case based upon his allegation that the complaint failed to

comport with the requirements of Crim.R. 3 because it did not contain a written

statement of the essential facts and was not made upon oath before an authorized

person.

       {¶15} Crim.R. 3 states that “[t]he complaint is a written statement of the

essential facts constituting the offense charged. It shall also state the numerical

designation of the applicable statute or ordinance. It shall be made upon oath before

any person authorized by law to administer oaths.” Crim.R. 3. “The purpose of a

complaint filed in a criminal case is to provide reasonable notice to the defendant of

the nature of the offense.” State v. Smith, 10th Dist. Franklin No. 16AP–21, 2017-

Ohio-9283, ¶ 21. “A valid complaint “must contain * * * ‘a written statement of

the essential facts constituting the offense charged[,]’ ” and “ ‘may be in the words

of the applicable section of the statute, * * * or in words sufficient to give the

defendant notice of all the elements of the offense with which the defendant is

charged.’ ” State v. Jones, 11th Dist. Ashtabula No. 2015-A-0068, 2016-Ohio-

6987, ¶ 18, citing Crim.R. 3 and Crim.R. 7(B).


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                       Written Statement of the Essential Facts

       {¶16} As previously indicated, the complaint initiating this case described

Hill’s alleged conduct by using all the elements which comprise the offense of

domestic violence, as well as including the numerical designation of the applicable

statute and the level of the offense. As such, we find that the complaint adequately

apprised Hill of the nature of the offense with which he was charged and find no

error on this basis.

                   Made Upon Oath Before an Authorized Person

       {¶17} Hill next argues that the complaint is invalid and his conviction is void

based upon his allegation that “there is no attestation by the charging officer before

a person authorized by law to administer oaths, as required by Crim.R. 3.” (Appt.

Brief at 6). The record establishes that the complaint and probable cause affidavit

were both signed by Sergeant Robinson as the complainant and affiant. On the line

underneath Sergeant Robinson’s signature on both documents appears the statement

“Sworn to and subscribed before me by the Complainant [Affiant] on July 11,

2017.” Appearing over the signature line on the probable cause affidavit and under

the signature line on the complaint is a stamp that states “Rhonda Slee Notary Public

My Commission Expires.” Handwritten underneath the stamp appears the date “4-

11-22.” In addition to the Notary Public stamp, both documents bear the stamped

seal stating “Notary Public State of Ohio” with the official State Seal.


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       {¶18} Despite all these indicators that a Notary Public may have been present

to administer an oath upon Sergeant Robinson signing these documents, the record

fails to indicate that a Notary Public signed the documents verifying the complaint

and/or affidavit were sworn under oath by Sergeant Robinson in the presence of

someone authorized to administer the oath. “As a general proposition, a jurat is

merely a certificate which is intended to establish that the oath was duly

administered by a duly authorized individual.” State v. Davies, 11th Dist. Ashtabula

No. 2012-A-0034, 2013-Ohio-436, ¶ 24 citing Taxis v. Oakwood, 19 Ohio L.Abs.

498 (2nd Dist.1935).      “Notwithstanding the fact that the signature is usually

dispositive of the ‘verification’ issue, it has been held that the lack of the signature,

or the total omission of the jurat, will not render the complaint void under all

circumstances.” Id. at ¶ 26, citing Taxis, 19 Ohio L.Abs. 498. “Instead, the validity

of the complaint can still be upheld if the prosecution can otherwise show, based

upon other language in the document or evidence outside the record, that a proper

oath was administered by a person duly authorized to take the oath.” Id.

       {¶19} In this case, Hill did not raise the issue of a jurisdictional defect based

upon the lack of signature by the Notary Public before the trial court. As a result,

the trial record does not contain any factual findings verifying that Rhonda Slee, or

another authorized person, administered the oath to Sergeant Robinson upon him




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signing the complaint and accompanying affidavit. For this reason, the judgment of

the trial court is reversed.

       {¶20} If evidence outside the record shows that Rhonda Slee actually

administered the oath, despite not personally signing, or someone else authorized to

administer an oath actually did so, the complaint would not be defective and the

conviction would not be void. Accordingly, this case is reversed and remanded for

a hearing to determine whether the complaint was sworn under oath by Sergeant

Robinson in the presence of someone authorized to administer an oath as required

by Crim.R. 3. Therefore, to this extent only, the first assignment of error is

sustained.

       {¶21} For the aforementioned reasons, we overrule the second assignment of

error and sustain the first assignment of error on the limited basis set forth above.

Accordingly, the judgment of the trial court is affirmed in part and reversed in part,

and the case is hereby remanded so that an evidentiary hearing can be held on the

issue of whether the complaint was sworn under oath by Sergeant Robinson in the

presence of someone authorized to administer oaths.

                                                        Judgment Affirmed in Part,
                                                             Reversed in Part and
                                                                 Cause Remanded

WILLAMOWSKI, P.J., and PRESTON, J., concur.

/jlr


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