[Cite as State v. Young, 2017-Ohio-8685.]




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




STATE OF OHIO,
                                                       CASE NO. 7-17-01
       PLAINTIFF-APPELLEE,

      v.

JEREMY J. YOUNG,                                       OPINION

       DEFENDANT-APPELLANT.



                        Appeal from Napoleon Municipal Court
                            Trial Court No. 17 CRB 00321

                         Judgment Reversed, Cause Remanded

                          Date of Decision: November 27, 2017



APPEARANCES:

        Clayton M. Gerbitz for Appellant

        Billy D. Harmon for Appellee
Case No. 7-17-01


WILLAMOWSKI, J.

       {¶1} Defendant-appellant Jeremy Young (“Young”) brings this appeal from

the judgment of the Napoleon Municipal Court finding him guilty of domestic

violence. Young challenges 1) the trial court’s compliance with Criminal Rule

11(E) and 2) the sentence imposed. For the reasons set forth below, the judgment

is reversed and the matter is remanded.

       {¶2} On April 21, 2017, a complaint was filed in the trial court alleging that

Young had committed an act of domestic violence in violation of R.C. 2919.25(A),

a misdemeanor of the first degree. Doc. 1. Young allegedly had placed his hands

around the victim’s throat after the child woke him from sleeping. Id. The victim

was the child of Young’s fiancé and lives with Young. Id. Young later appeared

by video for arraignment where he entered a plea of no contest. Doc. 2. The trial

court found him guilty of the offense and immediately proceeded to sentence Young

to one year of probation, including 180 days in jail with 170 of the days suspended.

Id. The trial court also ordered that Young have no contact with the victim and the

victim’s sibling for two years. On May 18, 2017, Young filed his notice of appeal

from the judgment of the trial court.           Doc. 5.   Young raises the following

assignments of error on appeal.

                            First Assignment of Error

 The trial court erred in accepting [Young’s] plea by failing to comply
                       with Criminal Rule 11(E).


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                            Second Assignment of Error

       The trial court abused its discretion when it imposed, as a
       condition of probation or community control, an order requiring
       that [Young] have no contact with two minor children.

       {¶3} On June 20, 2017, the Clerk of the Napoleon Municipal Court certified

that the record consisted of one transcript and papers numbered one to ten. On July

11, 2017, Young filed his brief with this court, raising the above listed assignments

of error. On July 17, 2017, a “Transcript of Proceedings Reading of Rights at

Corrections Center of Northwest Ohio” was filed. The order of the trial court

ordering the supplementation of the record was filed on July 20, 2017. The State

then filed its brief on July 28, 2017.

       {¶4} On August 4, 2017, Young filed a motion to quash the transcript filed

on July 17, 2017 and any argument based upon it. The motion was based upon the

facts that 1) the record contains no identification of the party seeking to add the

transcript, 2) the record contains no indication that the transcript was ever a valid

part of the trial court record, and 3) no motion or order was ever filed to have the

record supplemented. This motion will be addressed along with the first assignment

of error.

                        Advising a Defendant of Legal Rights

       {¶5} In both the motion to quash and the first assignment of error, Young

argues that the trial court did not correctly advise him of his rights and the effect of

a no contest plea. Initially, this court notes that the trial court has the authority to

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Case No. 7-17-01


order the record to be supplemented to correct an omission from the record, even

after the record has been transmitted to the court of appeals. App.R. 9(E). In this

case, the trial court sua sponte ordered that the record be “supplemented to include

a transcript of the statement of rights played to the Defendant prior to his April 21,

2017 initial appearance.” July 20, 2017 order.

       {¶6} To fully understand the effect of this supplement, one must first

comprehend what the procedures used were. A review of the record in this case

indicates that at some time prior to the April 21, 2017 court hearing, a recorded

message referred to as a “statement of rights” was allegedly played for Young in the

holding area at his location at the Corrections Center of Northwest Ohio while he

was waiting to be connected with the trial court via video link for his arraignment.

This recording was what the trial court sua sponte added to the record. After

allegedly listening to the recorded statement of rights, Young was eventually

connected via video link to the trial court and arraigned.

       {¶7} Although the trial court may supplement the record, the supplement in

this case raises several issues which affect the weight the supplemented record is

accorded. The first issue is that the transcript does not indicate whether the trial

court had previously reviewed the recording being played and approved it as part of

the court proceedings. At no time does the record indicate that the trial court was

aware of what specifically was played for the defendant. The trial court apparently

was not present for the advisement, but instead merely asked the defendant at a later

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time if he had heard “a statement of [his] rights.” Tr. 2. A trial court cannot be

certain what was presented to the defendant absent having it be part of the court

proceeding.

       {¶8} We also note that the trial court certified that the “foregoing transcript

of the hearing held on April 21 2017 consisting of 5 pages * * * is a true complete

transcript of the proceedings, and I do further certify that I was personally present

in the courtroom during all of said proceedings.” This certification was attached to

the transcript of proceedings that took place in the Napoleon Municipal Court on

April 21, 2017, and indicates that it is a complete transcript of proceedings. The

reading of rights transcription contained no such certification, does not indicate the

date on which it occurred, and merely identifies the text as coming from “speaker”.

       {¶9} The second issue raised is whether the transcript of the advisement of

the rights was actually what was played for Young. The record does not show that

Young was incarcerated at the Corrections Center of Northwest Ohio and the trial

court did not ask that at the hearing. Even assuming that Young was at the

Corrections Center of Northwest Ohio, the record contains no verification that this

recording was played on the date in question and that Young was in attendance for

that specific presentation. All the record contains is a statement by Young that he

listened to a statement of his rights and that he had no questions. Tr. 2. At no time

were any specifics discussed from which a conclusion could be reached that this

recording was the one which Young heard. Although the trial court may supplement

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the record, logically the record must contain something to indicate that the transcript

which is being added is related to the matter before this court.

       {¶10} The third issue this court has with the supplemented transcript is the

process by which it was used. The trial court evidently used the recording as a way

to avoid having to discuss the rights with each individual defendant.              While

recordings may be used to advise defendants of their rights en masse, the trial court

must still take steps to insure that the advisement is correct and that a defendant

actually comprehends what was presented. A defendant who pleads not guilty may

not need additional advisement at that point in time, but one who enters a plea of no

contest or guilty must comprehend what rights they are waiving prior to entering the

plea. In this case, the trial court failed to take any steps to insure that Young actually

comprehended the rights he was waiving and the effect of the plea before accepting

a plea of no contest. This court does not see how a trial court can make a finding

that a defendant is entering a plea knowingly, voluntarily, and intelligently without

first addressing the defendant and determining that the defendant actually

understands what was stated. Here, the trial court merely asked if Young had heard

his rights and then asked him to initial and sign a waiver form without addressing

the content of the form. The trial court also did not take any steps to determine

whether Young could read the form or had any conditions which might interfere

with his ability to understand what he was being told. Although the waiver form

addressed the fact that a conviction for domestic violence could elevate any future

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charges of domestic violence, the trial court did not address this issue with the

defendant prior to accepting the plea. The alleged advisement of rights at the

Correctional Center of Northwest Ohio did not address this issue either.

         {¶11} Although all of these issues raise questions in this court, the fatal

error in the acceptance of the plea was the failure of the trial court to

accurately advise Young of the effect of his plea as required by Criminal Rule 11(E).

“In misdemeanor cases involving petty offenses the court may refuse to accept a

plea of guilty or no contest, and shall not accept such plea without first informing

the defendant of the effect of the pleas of guilty, no contest, and not guilty.” Crim.R.

11(E). The Supreme Court of Ohio has held that to comply with the requirements

of Criminal Rule 11(E) when informing a defendant of the effect of a plea of no

contest, the trial court must inform the defendant “that the plea of no contest is not

an admission of guilt but is an admission of the truth of the facts alleged in the

complaint, and that the plea or admission shall not be used against the defendant in

any subsequent civil or criminal proceeding.” State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, ¶ 23 citing Crim.R. 11(B)(2). Here, the dialogue

between the trial court and Young prior to accepting the plea of no contest was very

short.

         The Court: Mr. Young, did you listen to a statement of your
         rights?

         Mr. Young: I sure did Your Honor.


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      The Court: Do you have any questions about your rights?

      Mr. Young: No ma’am.

      The Court: Did you receive a copy of this complaint?

      Mr. Young: I did Your Honor.

      The Court: The complaint alleges that on or about April 19, 2017
      you did, in the City of Napoleon, County of Henry, State of Ohio,
      knowingly caused or attempted to cause physical harm to a family
      or household member. It is a violation of [R.C. 2919.25(A)],
      commonly known as Domestic Violence, and it is a misdemeanor
      of the first degree punishable by up to six months in jail, $1,000
      fine or both. How do you wish to plea?

      Mr. Young: Um, no contest.

      The Court: You realize that if you plead no contest you would be
      waiving or giving up the rights you are given in that statement?

      Mr. Young: I really don’t know what to say, you know, the
      situation escalated and nobody was injured * * *

      The Court: I don’t want to hear anything about the incident I’m
      just asking if you are sure you want to plead no contest because
      you are going to be found guilty of this offense.

      Mr. Young: Umm, yes ma’am.

      The Court: There is a written waiver for you to sign, please read
      over this waiver, it explains what rights you are giving up by
      pleading no contest. Please initial all of the lines and date and sign
      at the bottom where indicated. The Court will find that you
      knowingly, voluntarily and intelligently with the full
      understanding of rights, waived those rights and entered a plea of
      no contest. The Court would accept your plea and I’m going to
      read for the record the report of the officer. It states that on April
      20, 2017 officers were called to Maple Street for an alteration
      between Randall Dixon and Amy Watson, through an
      investigation it was discovered that Randall and Amy were

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       arguing over a domestic violence incident that took place at
       Amy’s residence. It was reported that on April 19, in the City of
       Napoleon, Henry County, Ohio [Young] strangled the victim who
       is eleven years old by placing his hands around the victim’s throat
       and squeezing. The victim reported that the defendant was
       shaking him while choking him and that [Young] choked him for
       3-5 seconds before releasing him.

       Mr. Young: That’s not true.

       The Court: Those are the facts of the report and based on those
       facts I am going to find you guilty of this offense. Is there anything
       you wish to say regarding sentencing?

       Mr. Young: No, no ma’am.

Tr. 2-4.

       {¶12} Regardless of whether the trial court should have taken additional

steps to insure that the plea was knowingly, voluntarily, and intelligently entered,

the trial court was required by the rules to inform Young of the effect of the plea of

no contest before accepting the plea. The trial court erred in this endeavor because

it did not correctly inform Young. The trial court was supposed to inform Young

that if he entered a plea of not contest, he would not be admitting guilt, but that he

would be making an admission of the truth of the facts alleged in the complaint.

Crim.R. 11(B). The trial court also was required to inform Young that the plea or

admission could not be used against him in any subsequent civil or criminal

proceeding. Id. Instead of informing Young of this, the trial court told him that if

he entered a plea of no contest, he would be found guilty of the offense charged.

This is an incorrect statement of law and does not comply with Criminal Rule 11.

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Because the trial court failed to correctly advise Young of the effect of the plea of

no contest, the plea was not voluntarily, intelligently, and knowingly entered. The

first assignment of error is sustained.

       {¶13} Having found that the plea was not voluntarily entered, the question

of the sentence as raised in the second assignment of error is moot. This court will

thus not address that assignment of error at this time. App.R. 12(A)(1)(c).

       {¶14} Having found error prejudicial to the appellant in the first assignment

of error, the judgment of the Napoleon Municipal Court is reversed. The matter is

remanded to the trial court for further proceedings in accord with this opinion.

                                                                Judgment Reversed
                                                                  Cause Remanded
PRESTON, P.J. and SHAW, J., concur.

/hls




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