State ex rel. Sawyer v. O'Connor

• Decision Date: 21 June 1978
• Docket Number: No. 77-390,77-390
• Citation: State ex rel. Sawyer v. O'Connor, 377 N.E.2d 494, 54 Ohio St.2d 380, 8 O.O.3d 393 (Ohio 1978)
• Parties: , 8 O.O.3d 393 The STATE ex rel. SAWYER et al., Appellees, v. O'CONNOR, Judge, Appellant.
• Court: Ohio Supreme Court

Page 380

54 Ohio St.2d 380

377 N.E.2d 494, 8 O.O.3d 393

The STATE ex rel. SAWYER et al., Appellees, v. O'CONNOR, Judge, Appellant.

No. 77-390.

Supreme Court of Ohio.

June 21, 1978.

James J. Brandenburg was charged with driving while intoxicated, in violation of R.C. 4511.19.

The charge came on for trial before Judge John P. O'Connor of the Hamilton County Municipal Court, at which time a plea of no contest was entered by Brandenburg. The city prosecutor then proceeded to state the details of the charge and to elicit unsworn statements about the incident from two state highway patrolmen. The facts brought out by this "explanation of circumstances," included the following: Brandenburg's breathalyzer test was .17; his pick-up truck was observed weaving across the road; he ran the truck into a patrol car causing minor damage; there was a strong odor of alcohol about his person; and he failed the finger-to-nose and balance tests. Both officers stated that the defendant was under the influence of alcohol.

Prior to determination, Judge O'Connor held a conference of the lawyers and patrolmen in chambers during the course of which it was brought out that this was a "hardship" case, and that a finding of guilty of driving under the influence of alcohol would cause Brandenburg to lose his job, which he had held for more than 20 years, and that he would then be unable to support his family consisting of a wife and six children. However, neither the officers nor the city prosecutor were willing to agree to any change in the charge, nor were they willing to agree to a reduction to a lesser offense.

Calling the court back into session, Judge O'Connor then made the following pronouncement:

"THE COURT: There will be a finding of guilty of 4511.20. (Reckless operation.) The case is reduced to 4511.20 for the reason set forth in the record. Anything in mitigation?"

After hearing statements in mitigation, the court fined defendant $50 and costs and suspended his operator's license for 30 days.

Relators, the Senior Assistant Prosecutors for the city of Cincinnati, brought a mandamus action in the Court of Appeals for Hamilton County requesting an order to vacate the reduction of the charge of driving while intoxicated to reckless driving and to require the trial to proceed to make a finding consistent with law.

The Court of Appeals issued a writ of mandamus to Judge O'Connor directing him to vacate the reduction of the charge in the Brandenburg case and to set aside the finding of guilty of reckless operation and the sentence imposed for that charge. The Court of Appeals ordered Judge O'Connor to proceed with the disposition of the charge of driving while under the influence of alcohol.

The cause is now before this court as a matter of right.

Thomas A. Luebbers, City Sol., Paul J. Gorman and J. Anthony Sawyer, Cincinnati, for appellees.

Richard C. Gasen, Cincinnati, for appellant.

PER CURIAM.

The charge against Brandenburg of operating a motor vehicle while under the influence of alcohol was properly before the Hamilton County Municipal Court. In relation to that charge, the defendant may plead no contest with consent of the court. Crim.R. 11(A). In that event, Crim.R. 11(B)(2) provides as follows:

"The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint and such plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding."

Both parties agree that the trial court has the power to consider whether the facts alleged in the complaint, which are admitted by the plea of no contest, constitute the basis for a finding of guilty or not guilty. In the event of a finding of not guilty as to the principal charge, the court may find defendant guilty of a lesser-included offense.

If the court, in so exercising its power, erred to the prejudice of defendant, the defendant's remedy is to appeal to the Court of Appeals. The state, however, has no right to appeal a judgment in a criminal case, no matter how erroneous, except where the judgment of such court decides " 'a motion to quash, a plea in abatement, a demurrer, or a motion in arrest of judgment,' or the equivalent thereof." Euclid v. Heaton (1968), 15 Ohio St.2d 65, 238 N.E.2d 790.

Appellees argue that the trial court's finding of guilt of reckless operation after the plea of no contest was a gross abuse of discretion which entitles the state to proceed in mandamus as there is no...