City of Toledo v. Chiaverini
Decision Date | 29 April 1983 |
Citation | 463 N.E.2d 56,11 Ohio App.3d 43,11 OBR 76 |
Parties | , 11 O.B.R. 76 CITY OF TOLEDO, Appellee, v. CHIAVERINI, Appellant. |
Court | Ohio Court of Appeals |
Syllabus by the Court
1. Misdemeanors having a penalty of six months or less are considered "petty offenses" pursuant to Crim.R. 2 and 11(E).
2. Prior to the acceptance of a plea of guilty or no contest, the court must inform the defendant of the effect of a plea of guilty, no contest and not guilty pursuant to Crim.R. 11(E).
3. Upon a plea of no contest, the court must make a finding of guilty or not guilty from an explanation of circumstances of the offenses charged in the complaint.
John T. Madigan, Chief Prosecutor, for appellee.
Arnold N. Gottlieb, Toledo, for appellant.
This is an appeal from the Toledo Municipal Court. Appellant was charged with the offense of assault, a violation of Toledo Municipal Code Section 537.03. On October 20, 1982, his case came on for trial to the court. The appellant was not represented by an attorney. After being advised by the court of his right to be represented by an attorney and the penalty involved in the charge of assault, appellant gave up his right to be represented by counsel and entered a plea of no contest. The trial court made a finding of guilty and referred the case to the probation department.
On November 23, 1982, the matter came on for sentencing. The appellant appeared in open court with an attorney. Prior to sentencing, appellant's attorney requested the court to vacate the plea entered on October 20, 1982, contending that the appellant was confused and did not fully comprehend the consequences of the finding of guilty. The lower court denied the request and proceeded to sentence the appellant to ten days in the Toledo House of Correction. It is from this sentence that the appellant has filed a timely appeal.
The appellant has raised the following assignments of error:
After a review of the record, this court finds that the lower court fully advised the appellant of his right to retain an attorney and that if he could not afford an attorney, the court would appoint one for him. The lower court also advised the appellant of the penalty involved in the case. This court finds, however, that a defendant, whether or not he is represented by counsel, must be advised of other constitutional and statutory rights, pursuant to Crim.R. 11(E). When the appellant entered his plea of no contest, he was, in effect, waiving several constitutional rights, including, but not limited to, his right to a trial, his privilege against self-incrimination, his right to confront those who brought the charge against him and the right to compulsory process.
Appellant contends that Crim.R. 11(D) applies in the case sub judice. Crim.R. 11(D) provides:
The definition of "serious offense" is found in Crim.R. 2:
" 'Serious offense' means any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months." (Emphasis added.)
The maximum penalty for the charge of assault is six months' incarceration. Therefore, pursuant to Crim.R. 2, the words "serious offense" as used in Crim.R. 11(D) do not apply. The offense of assault, not falling within the language of Crim.R. 2, must be construed as a "petty offense" and, therefore, the procedure set forth in Crim.R. 11(E) controls. Crim.R. 11(E) provides as follows:
(Emphasis added.)
In the case sub judice, the record does not evidence the fact that the lower court complied with Crim.R. 11(E) by advising the appellant of the effect of the plea of no contest. In fact, the court erroneously advised the appellant that if he pleaded no contest, the court would automatically make a finding of guilty. The transcript reveals the lower court stated in this regard:
There is no showing that the lower court either read the complaint or sought an explanation of the circumstances from the complainant or prosecutor to determine whether the appellant was guilty or not guilty of the charge. The court, when informing a defendant of the effect of a plea of guilty, no contest or not guilty, pursuant to Crim.R. 11(E), should advise the defendant of his right to a trial by jury or to the court; the burden upon the prosecution to prove his guilt beyond a reasonable doubt if he were to go to trial; his right to cross-examine the witnesses called against him; his right not to testify; and his right to subpoena any witness he may have in his own defense. The court should further advise the defendant that, if he pleads no contest, the court will make a finding with regard to the defendant's guilt or innocence, based upon an explanation of the circumstances as they are set forth in the complaint, as they are presented by the prosecution, or as they are presented by the complainant.
It has been held in the case of State v. Herman (1971), 31 Ohio App.2d 134, at 135, 286 N.E.2d 296 , that:
"* * * [T]he plea of 'no contest' is not synonymous with the ancient plea of ' nolo contendere' in that the plea of 'nolo contendere' is an implied admission of guilt and, for the purpose of the case in which it is entered, is equivalent to a plea of guilty, whereas, in a plea of no contest, the court must go further and make a finding of guilty or not guilty from the 'explanation of circumstances.' "
Clearly, in the instant case, there is no showing in the record that the lower court complied with the criminal rule. In State v. Kristanoff (1972), 32 Ohio App.2d 218, at page 220, 289 N.E.2d 402 , the court stated that:
...
To continue reading
Request your trial-
State v. Paul Besimer
... ... consequences resulting from those choices. In Toledo v ... Chiaverini (1983), 11 Ohio App.3d 43, 463 N.E.2d 56, the ... Sixth District, ... ...
-
State v. Rocky D. Newman
... ... COUNSEL ... FOR APPELLEE: Mark E. Kuhn, Assistant City Prosecutor, ... Municipal Building, 728 Second Street, Portsmouth, Ohio ... 45662 ... Hays (1982), 2 Ohio App.3d 376, ... 442 N.E.2d 127 ... In ... Toledo v. Chiaverini (1983), 11 Ohio App.3d 43, 44, ... 463 N.E.2d 56, 58 the court, when concluding ... ...
-
City of Garfield Heights v. Brewer
...for more than six months' confinement but only up to six months' confinement. See Crim.R. 2; R.C. 4509.99(B); Toledo v. Chiaverini (1983), 11 Ohio App.3d 43, 463 N.E.2d 56. Accordingly, Crim.R. 11(E), 44(B) and (C), and 22 must be complied Crim.R. 11(E) provides that: "In misdemeanor cases ......
-
State v. Claude Michael Meade, 86-LW-1529
...(1984), 21 Ohio App.3d 102; State v. Blatnik (1984), 17 Ohio App.3d 201; State v. Dickey (1984), 15 Ohio App.3d 151; Toledo v. Chiaverini (1983), 11 Ohio App.3d 43; Cleveland Heights v. Perryman (1983), 8 Ohio 443; Cuyahoga Falls v. Simich (1982), 5 Ohio App.3d 10; State v. Longo (1982), 4 ......