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City of Conneaut v. Erwin C. Coleman

September 30, 2011

CITY OF CONNEAUT, PLAINTIFF-APPELLEE,
v.
ERWIN C. COLEMAN, DEFENDANT-APPELLANT.



Criminal Appeal from the Conneaut Municipal Court, Case No. 10 CRB 703.

The opinion of the court was delivered by: Cynthia Westcott Rice, J.

Cite as Conneaut v. Coleman,

OPINION

Judgment: Affirmed.

{¶1} After pleading no contest to one count of misdemeanor domestic violence, in violation of R.C. 2919.25(C), appellant, Erwin C. Coleman, was sentenced to 30 days in jail, conditionally suspended. Appellant now appeals, and we affirm.

{¶2} For his first assignment of error, appellant alleges:

{¶3} "The trial court erred by accepting the appellant's plea of guilty in violation of Crim.R. 11 and the due process clauses of the United States Constitution and the Constitution of the state of Ohio."

{¶4} Under this assignment of error, appellant contends his plea was not offered knowingly, voluntarily, and intelligently because the trial court failed to advise him of all relevant effects of entering the plea. In particular, he claims the trial court erred by failing to apprise him that his conviction could be used to enhance a future domestic violence charge from a misdemeanor to a felony. We do not agree.

{¶5} Initially, we point out that appellant pleaded no contest to domestic violence, a misdemeanor of the fourth degree; he did not plead guilty. A misdemeanor of the fourth degree is punishable by a jail term of not more than 30 days and is thus a petty offense. R.C. 2929.24; Crim.R. 2(C) and (D). Crim.R. 11(E) provides: "In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty." To meet the requirement of "informing the defendant of the effect" of a particular plea under Crim.R. 11(E), "a trial court must inform the defendant of the appropriate language under Crim.R. 11(B)." State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, syllabus.

{¶6} The "effects" of which a court must inform a defendant when entering a plea of no contest are set forth under Crim.R. 11(B)(2). That rule provides: "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 the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding."

{¶7} Pursuant to Crim.R. 11(B)(2), therefore, a court is only required to (1) advise the defendant that the plea "is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged," as well as (2) apprise the defendant that "*** the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding."

{¶8} With these points in mind, however, appellant cites this court's holding in State v. Clevenger, 11th Dist. No. 2001-L-160, 2002-Ohio-5515 as authority for his position. In Clevenger, the state of Ohio appealed the lower court's dismissal of a felony domestic violence charge. In affirming the lower court's judgment, this court determined the record failed to demonstrate the defendant knowingly, voluntarily, and intelligently waived his right to counsel in a previous domestic violence action, the predicate offense that functioned to enhance the later charge from a misdemeanor to a felony. As an uncounseled misdemeanor conviction cannot be used to enhance a future charge, this court held the trial court properly refused to use the appellee's prior conviction to enhance the later domestic violence charge.

{¶9} The issue in Clevenger was whether the defendant's waiver of counsel, made at the time he pleaded no contest to the previous domestic violence charge, was knowing and intelligent. Based upon the record, this court determined the state failed to produce evidence supporting the validity of the defendant's waiver. Id. at ¶18.

Subsequent to resolving this issue, this court also observed, perhaps gratuitously, that the defendant was not "adequately advised of his rights in accordance with the Criminal Rules of Procedure." Id. With respect to this point, this court noted "the state [also] failed to produce any evidence demonstrating that [the defendant] was apprised that a possible ...


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