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State v. Roland

Court of Appeals of Ohio, Second District

July 7, 2006

STATE OF OHIO Plaintiff-Appellee
v.
TONY M. ROLAND Defendant-Appellant

Criminal Appeal from Municipal Court T.C. NO. 05 CRB 00384

G. S. WEITHMAN, Atty. Reg. No. 0018377, Attorney for Plaintiff-Appellee

RICHARD E. MAYHALL, Atty. Reg. No. 0030017Attorney for Defendant-Appellant

OPINION

WOLFF, J.

{¶ 1} Tony Roland was charged with misdemeanor counts of vehicular homicide and failure to stop for a red light. He pleaded no contest to the vehicular homicide charge and was found guilty. After referral for a pre-sentence investigation, he was sentenced to six months incarceration with ninety days suspended. Roland was fined $1, 000 and costs and placed on five-years probation with general and particularized conditions. The court also imposed a five-year license suspension. Restitution was not requested and, therefore, not ordered because damages occasioned by the vehicular homicide are being pursued in a civil action. The trial court and this court overruled Roland's motion for an appeals bond and he has served ninety days incarceration.

{¶ 2} Roland's first assignment of error asserts:

{¶ 3} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT ON HIS PLEA OF NO CONTEST WITHOUT FIRST TAKING AN EXPLANATION OF THE CIRCUMSTANCES AS REQUIRED BY R.C. 2937.07."

{¶ 4} In this assignment, Roland contends that the trial court's finding of guilty upon his plea of no contest is invalid because the court failed to base its finding upon an explanation of circumstances, as required by R.C. 2937.07, and which states in part:

{¶ 5} "A plea to a misdemeanor offense of 'no contest' or words of similar import shall constitute a stipulation that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense."

{¶ 6} The State responds by observing that the court had the officer's offense report, that Roland stipulated that he would be found guilty, and that Roland - by counsel -either waived the requirement of the explanation of circumstances by not insisting upon it or - by not insisting upon it - invited the court's error in not considering the explanation of circumstances.

{¶ 7} Following City of Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, we have held that a defendant has a substantive right to be discharged by a finding of not guilty where "no explanation of circumstances is made." State v. Keplinger (Nov. 13, 1998), Greene App. No. 98 CA 24. Following Bowers, we also held that the explanation of circumstances requirement "is not satisfied by a presumption that the court was aware of facts which may be gleaned from a review of 'the available documentation.'" Id . Hence, the fact that the court had the officer's offense report in its file did not dispense with the requirement that the record reflect that the court considered the offense report, i.e., the explanation of circumstances, before finding Roland guilty. Id., Bowling Green v. Schabel (Dec. 9, 2005), Wood App. No. WD-05-013, 2005-Ohio-6522.

{¶ 8} At the time he pleaded no contest, Roland executed a written "waiver of rights and entry of plea" form that stated in part:

{¶ 9} "I am pleading (NO CONTEST - stipulation of Guilt) (GUILTY) to the charge of Vehicular Homicide." Before Roland entered his plea, the following occurred among him, his counsel, and the court:

{¶ 10} "THE COURT: . . . Mr. Roland, it's my understanding you're wanting to change your plea to the charge of ...


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