[Cite as State v. Collier, 2009-Ohio-6236.]




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



STATE OF OHIO,

    PLAINTIFF-APPELLEE,                                 CASE NO. 16-09-09

    v.

ANTHONY J. COLLIER,                                        OPINION

    DEFENDANT-APPELLANT.




                    Appeal from Upper Sandusky Municipal Court
                            Trial Court No. TRD 08-5540

                         Judgment Vacated and Cause Remanded

                           Date of Decision: November 30, 2009




APPEARANCES:

         Eric W. Beery for Appellant

         Kathryn M. Collins for Appellee
Case No. 16-09-09




Rogers, J.

       {¶1} Defendant-Appellant, Anthony Collier, appeals the judgment of the

Upper Sandusky Municipal Court convicting him of a special load permit

violation and operating an overloaded vehicle. On appeal, Collier argues that the

trial court erred in convicting him of operating an overloaded vehicle because his

overload permit was improperly voided by the state trooper, as there is no

requirement in R.C. 4513.23 or the State of Ohio Department of Transportation,

Office of Maintenance Management, Special Hauling Permit Section Operational

Guide (“operational guide”) that he have extended mirrors on the vehicle, and the

evidence established that he was able to see to the rear of his vehicle and around

both sides of the load pursuant to R.C. 4513.23 and the operational guide. Based

on the following, we vacate Collier’s no contest plea and conviction.

       {¶2} In December 2008, Collier was cited for operating an overloaded

vehicle in violation of R.C. 5577.04, a minor misdemeanor, and with violating the

terms of a special load permit in violation of R.C. 4513.34, a minor misdemeanor.

The citation arose from an incident whereby Collier was operating a tractor trailer

with an overweight and oversize load on U.S. 30 in Wyandot County and was

stopped by an Ohio State Patrol Trooper, and the trooper invalidated his special

load permit on the premise that his mirrors were insufficient to see to the rear and




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sides of his load. Subsequently, Collier entered a not guilty plea to both charges in

the citation.

       {¶3} In May 2009, prior to the scheduled commencement of a bench trial,

Collier made an oral motion to dismiss, arguing that his special load permit was

improperly voided, as the statute contains no requirement that he have extended

mirrors; that the statute only requires that he be able to see to the rear of the

vehicle; that the statute does not contain a distance requirement of how far the

driver needs to be able to see to the rear; and, that he was able to see to the rear of

his load.

       {¶4} In response to Collier’s motion, the State argued that, although the

operational guide, which must be followed according to the terms of the special

load permit, and the statute do not require the vehicle to have extended mirrors,

they do require that the mirrors on the vehicle be sufficient for the driver to see to

the rear of the vehicle, and the evidence establishes that the width of Collier’s load

and the size of his mirrors prohibited him from being able to see to the rear of his

vehicle, thereby violating the requirements of the special load permit and giving

the trooper the authority to void the permit.

       {¶5} Subsequent to the arguments of both parties, but before the

presentation of evidence, the trial court denied Collier’s motion to dismiss and

engaged in the following discussion with Collier’s trial counsel and the State:




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      [Trial Court]: I guess the issue is we proceed with trial or you
      resolve it in a plea negotiation, * * * and if your company wants
      to take it up, do no contest plea and appeal it.

      ***

      All right. Uhm, and where’s the State on this if you do a
      negotiation?

      ***

      What you got here is somewhat of an honest dispute. It’s not like
      a flagrant intentional violation.

      ***

      I guess to be fair to you guys its – its my opinion, at this stage
      without hearing more, that there was a violation here, all right.
      So, where do we wanna go from here? Do we wanna put on
      more evidence? It seems to me that you have pretty much
      chattered about everything that is relevant on this * * *.

      ***

      [Collier’s Trial Counsel]: And actually, uhm, I know Mr.
      Grafmiller and I discussed, I mean, one of the things was, uhm,
      we weren’t talking dismissing the matter. We were talking
      about, I mean, just a reduction in fine and a – and a plea * * *.

      ***

      * * * [W]e were – we were talking about finding – a guilty fine or
      a guilty plea on the overweight, so you’re not gonna have a
      dismissal that the company will run around and challenge.
      Obviously, I think, and you’re exactly right, frankly, municipal
      court is not the area where you challenge it anyway, obviously,
      the Court of Appeals is.

      ***




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       [Trial Court]: If you wanna continue with the motion to dismiss
       and put on evidence that reflects the key statute here * * *.

       [State]: I’m just not sure how – what kind of record we have just
       as oral arguments.

       [Trial Court]: Well, I’m saying we can continue with the motion.
       ***

       [State]: Right.

       [Trial Court]: We had conversation.

       [State]: Right.

       [Trial Court]: Which is all on the record. And if you wanna now
       put on testimony in response, uhm, to the defendant’s oral
       argument you could do so. I – I gather what you’re trying to do
       is – it’s efficient on the record to do an appeal from the motion.

       [Collier’s Trial Counsel]: Exactly.

       [Trial Court]: Okay. That’s – That would be the same as – as a
       motion to suppress. You go forward, you enter your plea of no
       contest.

       [State]: Motion denied so now we’re for purposes of –

       [Trial Court]: You preserve your appeal rights with a no contest
       and get a stay on the fine and costs.

(May 2009 Hearing Tr., pp. 21-26).

       {¶6} After the presentation of testimony regarding the citation, Collier

entered a no contest plea to both charges in the citation, with the State agreeing to




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reduce the applicable fine.1

         {¶7} Subsequently, the trial court entered its judgment entry of conviction

and sentencing, finding Collier guilty of a special load permit violation pursuant to

R.C. 4513.342 and of operating an overloaded vehicle pursuant to R.C. 5577.04,

and ordering him to pay a fine of $231.50 plus court costs.3

         {¶8} It is from this conviction and sentence that Collier appeals,

presenting the following assignments of error for our review.

                                Assignment of Error No. I

         THE FACTS AND EVIDENCE OF THE CASE DO NOT
         PROVE A VIOLATION OF ORC 4513.23. APPELLEE IS
         ATTEMPTING TO PUT REQUIREMENTS IN ORC 4513.23
         AND THE DEPARTMENT OF TRANSPORTATION
         OPERATIONAL GUIDE THAT ARE NOT REQUIRED.
         APPELLEE INCORRECTLY VOIDED THE OVERSIZED
         PERMIT, DUE TO THE FACT THERE WAS NO
         VIOLATION OF ORC 4513.23.

                                Assignment of Error No. II

         APPELLEE FAILED TO SATISFY ITS BURDEN OF PROOF
         IN PROVING BEYOND A REASONABLE DOUBT THAT
         APPELLANT VIOLATED ORC 4513.23.

1
  We note that Collier’s trial counsel stated on the record that Collier wished to amend his plea to no
contest without specifying whether he was pleading no contest to both charges in the citation. However,
we construe his plea amendment to be on both charges in the citation, as no issue concerning the pleas has
been raised on appeal.
2
  Although the trial court’s judgment entry stated a conviction for a permit violation, it listed the incorrect
statute section, R.C. 4513.31, failure to properly secure a load. However, because Collier was not charged
under R.C. 4513.31, and no evidence was presented or argument made at the motion to dismiss hearing in
regards to a failure to properly secure a load, we construe this as a mere clerical error, and that Collier’s
conviction was for a permit violation pursuant to R.C. 4513.34, as charged in the citation.
3
  We note that the entry of conviction was a hand-written document with a minimum of information,
including the apparent clerical error as to the section number. While we are aware that many municipal
courts are very busy, we would encourage all trial courts to conscientiously prepare entries that are
commensurate with the dignity to which the judicial system is entitled.


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        {¶9} Before addressing Collier’s assignments of error, we must first

address whether he has properly preserved his appeal.

        {¶10} “While there can be an appeal from a conviction following a no-

contest plea, the issues that can be raised upon such an appeal are limited but,

pursuant to Crim.R. 12(H)4, include a claim ‘that the trial court prejudicially erred

in ruling on a pretrial motion, including a pretrial motion to suppress evidence.’”

State v. Watson, 2d Dist. No. 80AP-880, 1981 WL 3435.

        {¶11} Crim. R. 12(I) provides that a no contest plea “does not preclude a

defendant from asserting upon appeal that the trial court prejudicially erred in

ruling on a pretrial motion * * *.” Crim.R. 12(C) defines a pretrial motion as “any

defense, objection, evidentiary issue, or request that is capable of determination

without the trial of the general issue.” Accordingly, a no contest plea does not

preserve appellate review of a trial court’s ruling on a pretrial motion where the

issue raised by the motion is not a “defense, objection, evidentiary issue, or

request that is capable of determination without the trial of the general issue.”

State v. Brock, 3d Dist. No. 5-06-27, 2006-Ohio-6681, ¶9, citing Watson, 1981

WL 3435. See, also, State v. Evans, 2d Dist. No. 21669, 2007-Ohio-6587, ¶11.

Furthermore, where a defendant enters into a negotiated plea bargain, and, in turn,



4
  We note that Crim.R. 12 was amended in 2001, adding a new division (B) and redesignating prior
divisions (B) through (J) as new divisions (C) through (K), respectively. Accordingly, Crim.R. 12(H) is
now Crim.R. 12(I).


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enters a no contest plea based upon the erroneous assumption, joined in by the trial

court and the prosecution, that the plea will preserve his appellate rights to

challenge the trial court’s ruling on a pretrial issue, the plea bargain must be

rescinded, and the plea vacated. Brock, 2006-Ohio-6681, at ¶¶10, 12. See, also,

Columbus v. Sullivan (1982), 4 Ohio App.3d 7, 10; Columbus v. Quinn, 10th Dist.

No. 86AP-1079, 1987 WL 28458.

       {¶12} “A pretrial motion to dismiss can only raise matters that are ‘capable

of determination without a trial of the general issue.’” State v. Certain, 180 Ohio

App.3d 457, 2009-Ohio-148, ¶4, quoting Crim.R. 12(C). A motion to dismiss a

complaint pursuant to Crim.R. 12(C) challenges the sufficiency of the complaint

without regard to the quantity or quality of the evidence to be produced by the

State. State v. Stout, 3d Dist. No. 8-07-12, 2008-Ohio-161, ¶12, citing State v.

Patterson (1989), 63 Ohio App.3d 91, 95. Accordingly, where a pretrial motion to

dismiss requires the trial court “to look beyond the face of the complaint to the

evidence and testimony that would be offered at trial,” the motion is improper as a

pre-trial motion. Certain, 180 Ohio App.3d 457, at ¶5; Stout, 2008-Ohio-161, at

¶12.

       {¶13} In the case at bar, Collier made an oral motion to dismiss the charges

in the complaint on the basis that his special load permit was improperly voided,

and, consequently, that there was no legal basis for the citation. His motion to

dismiss was based on the premise that he could properly see to the rear of his


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vehicle and around both sides of the load pursuant to R.C. 4513.23 and the

operational guide. However, this motion goes to the sufficiency of the evidence

for the complaint, and is not “capable of determination without a trial of the

general issue,” Crim. R. 12(C), thereby requiring the trial court to “look beyond

the face of the complaint to the evidence and testimony that would be offered at

trial.” Certain, 180 Ohio App.3d 457, at ¶5. Consequently, we find that Collier’s

motion does not meet the definition of a pretrial motion pursuant to Crim.R.

12(C), such that he preserved for appeal the trial court’s denial of his motion by

entering a no contest plea.

        {¶14} Furthermore, we find that the record demonstrates that Collier

consented to a plea bargain, and, consequently, entered a no contest plea based on

the erroneous assumption, fostered by the trial court and the State, that he was

preserving appellate review of the trial court’s denial of his motion. Collier’s trial

counsel stated his desire to preserve an appeal of the trial court’s denial of his

motion, and the trial court explicitly stated that a no contest plea would permit

Collier to appeal its denial. Pursuant to this Court’s prior holding in Brock, any

plea bargain premised on a mistaken belief that a no-contest plea will preserve

appellate rights must be rescinded, with the defendant given an opportunity to

move forward to trial. Consequently we must also rescind this plea agreement and

no contest plea and grant Collier the opportunity to have a trial on the merits of the

case.


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       {¶15} Finally, we note that Collier frames his assignments of error in a

manner that questions whether the State met its burden of proof and whether there

was sufficient evidence of a permit violation. However, Collier made a motion to

dismiss, and a trial was never conducted, meaning the State was never charged

with the burden of proof to present sufficient evidence to establish a permit

violation.

       {¶16} Accordingly, because we find that Collier consented to a plea

bargain and entered a no contest plea based on the erroneous assumption that he

was preserving his right to appeal the trial court’s denial of his motion to dismiss,

we rescind the plea bargain, vacate his no contest plea, and remand the matter for

further proceedings.

       {¶17} Based on the foregoing, Collier’s assignments of error are rendered

moot, and we decline to address them. App.R. 12(A)(1)(c)

       {¶18} Having found error prejudicial to Appellant herein, we vacate

Appellant’s no contest plea and conviction, and remand to the trial court for

further proceedings consistent with this opinion.

                                         Judgment Vacated and Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jnc




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