One recent case in Ohio talks about negotiated “no contest” pleas and what the judge is required to tell the defendant pleading “no contest” to a serious misdemeanor (OVI). Under Ohio’s rules, the judge is not required to tell the defendant what rights he is giving up, but is required to tell the defendant the possible penalties he faces if (when) found guilty.
In Cleveland Hts. v. Brisbane, 2016-Ohio-4364, that didn’t happen. In this case, the Defendant entered a plea bargain under which he pleaded “no contest” to a third OVI in 6 years. The judge informed him that he could fact up to 30 days, when in reality, he could face up to a year in jail. He was then sentenced to 6 months.
Because the judge did not properly inform him of the possible penalties and sentence for a “no contest” plea, the court of appeals reversed the conviction and sent the case back to the trial court.
Driver Pled “No Contest” to Third OVI in 6 Years
A police officer spotted Defendant driving 49 mph in a 35 mph zone according to his radar. The officer attempted to pull Defendant over, but Defendant did not stop. Defendant attempted to evade the police officer for one mile and ran a number of stop signs in the process.
When Defendant eventually stopped, the officer noticed Defendant smelled of alcohol and had watery bloodshot eyes. The officer attempted to perform field sobriety tests on Defendant, but he refused.
When the officer attempted the horizontal gaze nystagmus test (eye test), Defendant kept moving his head instead of following the officer’s finger with his eyes though he was repeatedly instructed to do so.
Defendant was then arrested and transported to the police station where he refused a breath test. This refusal resulted in an automatic license suspension (ALS).
Defendant was charged with OVI in violation of R.C. 4511.19(A)(1)(a) with a notice of two prior violations within six years, driving with a suspended license in violation of city ordinances, failure to reinstate a driver’s license in violation of, reckless operation of a motor vehicle in, speeding, and failure to stop at a stop sign. Appellant was appointed counsel, and he signed a waiver of speedy trial rights.
At trial, Defendant entered a plea bargain in which he pled no contest to OVI with a specification that it was the third such conviction in 6 years, and all of the other charges were dismissed.
Defendant was sentenced to a six-month jail sentence with all but 30-days suspended. The court also imposed a fine of $2,700 with all but $850 suspended, one year of active community control followed by one year of inactive community control, required appellant to attend 15 Alcoholics
Anonymous meetings, and required completion of an alcohol abuse program. Finally, the court suspended appellant’s driver’s license for 18 months.
Defendant appealed his conviction.
Judge Required to Inform Defendant of Potential Penalties When Pleading “No Contest” to a Serious Misdemeanor
Ohio Criminal Rule 11(D) and Traffic Rule 10(C) provide the guidelines courts must follow for the acceptance of a no-contest plea in a case involving a serious misdemeanor.
A trial court accepting a plea to a serious misdemeanor does not have to explain the rights being waived by entering a plea (i.e. the right to a trial by jury, etc)
However, a trial court must still personally address a defendant and inform him of the effects of the plea and ensure that the plea is being entered voluntarily.
The court must review the totality of a defendant’s plea and determine if he understood that a no contest plea is not an admission of guilt but an admission to the facts alleged and that the plea was entered voluntarily. State v. Griggs, 103 Ohio St.3d 85 (2004).
In order to prevail on appeal, the defendant must show the court’s failure to advise him on his no contest plea would have resulted in him not submitting the plea.
Conviction Vacated Because Defendant Misinformed of Potential Sentence on a “No Contest” Plea
In this case, Defendant was addressed personally by the trial court, but was not advised of the effects of his no contest plea. The court did not ask if the plea was made voluntarily.
When Defendant entered his no contest plea, he was informed the maximum penalty he faced was 30 days when he was actually subject to a year in jail.
In a similar case, State v. Morgan, the defendant was informed his maximum penalty was much less than the penalty he actually faced and was sentenced to more time than he had been originally informed. State v. Morgan, 7th Dist. Mahoning No. 13 MA 80, 2014-Ohio-654.
He was also not informed of the effects of his plea or asked if his plea was voluntary. His plea and conviction were vacated because of this.
Thus, Defendant’s plea and conviction were vacated and sent back to the trial court.