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State v. Mullett

Court of Appeals of Ohio, Second District

July 12, 2013

STATE OF OHIO Plaintiff-Appellee
v.
NEILL T. MULLETT Defendant-Appellant

(Criminal appeal from Municipal Court) T.C. NO. 12TRD2261

GIL S. WEITHMAN, Atty. Reg. No. 0018377 and BREANNE N. PARCELS, Atty. Reg. No. 0089370, Champaign Municipal Prosecutor, Attorneys for Plaintiff-Appellee.

HALLI BROWNFIELD WATSON, Atty. Reg. No. 0082466, The Greene Town Center, Attorney for Defendant-Appellant.

OPINION

FROELICH, J.

{¶ 1} Neill T. Mullett pled guilty in the Champaign County Municipal Court to speeding (82/55). The court accepted his guilty plea, found that he had recklessly operated his vehicle, and imposed a $150 fine, a six-month driver's license suspension, and court costs. The court indicated that it would suspend three months of the driver's license suspension if Mullett wrote a five-page paper on speeding and fatalities. Upon the filing of Mullett's notice of appeal, the trial court stayed Mullett's sentence.

{¶ 2} Mullett appeals from his conviction. He claims that the trial court erred in requiring him to personally appear in court to address his traffic ticket, that R.C. 4510.15 is unconstitutional, that the evidence did not support a finding of recklessness for purposes of R.C. 4510.15, and that his plea was not made knowingly, intelligently, and voluntarily.

{¶ 3} As discussed below, Mullett has waived any challenge to his personal appearance in the trial court by not raising that issue before the trial court. However, Mullett's plea was not given knowingly, intelligently, and voluntarily, because the record does not reflect that the trial court complied with Traf R. 8(D) before calling upon defendant to plead. In light of that conclusion, we decline to address Mullett's additional arguments. The trial court's judgment will be reversed, and the case will be remanded for further proceedings.

I. Requirement that Defendant Personally Appear in Court

{¶ 4} Mullett's first assignment of error states:

THE TRIAL COURT ERRED BY REQUIRING APPELLANT TO PERSONALLY APPEAR BEFORE IT IN CONTRAVENTION OF R.C. 2935.26 AND TRAF. R. 13 RESULTING IN THE DEPRIVATION OF APPELLANT'S RIGHT TO DISPOSE OF THIS TRAFFIC CITATION BY PAYING AN ESTABLISHED FINE AND COSTS WITHOUT ANY APPEARANCE BEFORE THE TRIAL COURT AND IMPOSITION OF A DRIVER'S LICENSE SUSPENSION.

{¶ 5} In his first assignment of error, Mullett claims that the trial court erred in requiring to him to personally appear in court, rather than allowing him to pay his speeding ticket through the violations bureau. Mullett relies on R.C. 2935.26, which addresses the procedures for issuing a citation for an individual who committed a minor misdemeanor, and TrafR. 13.

{¶ 6} When Mullett appeared for his arraignment (as required by the ticket), Mullett did not object to his personal appearance before the trial court and pled guilty. Accordingly, Mullett waived any challenge to his personal appearance, and we decline to address this issue in the first instance.

{¶ 7} Mullett's first assignment of error is overruled.

II. Validity of Defendant's Guilty Plea

{¶ 8} Mullett's fourth assignment of error states:

THE TRIAL COURT ERRED BY ACCEPTING APPELLANT'S GUILTY PLEA TO THE OFFENSE OF SPEEDING WITHOUT ENSURING THAT APPELLANT UNDERSTOOD THE EFFECT OF HIS PLEA AND THE MAXIMUM SENTENCE THAT MAY BE IMPOSED AGAINST HIM.

{¶ 9} Mullett's fourth assignment of error argues that his guilty plea was not entered knowingly, intelligently, and voluntarily.

{¶ 10} Mullett was charged with and found guilty of speeding, in violation of R.C. 4511.21(D)(1).[1] Therefore, the proceedings were governed by the Ohio Traffic Rules. Crim.R. 1(C); Traf.R. 1(A). A conviction for speeding in violation of R.C. 4511.21(D)(1) is a minor misdemeanor, for which the only criminal penalty is a fine not exceeding $150. R.C. 4511.21(P); R.C. 2929.28(A)(2)(v). Under Traf.R. 2(D), a "petty offense" is defined as "an offense for which the penalty prescribed by law includes confinement for six months or less"; speeding is a petty offense.

{¶ 11} Mullett entered a guilty plea during the course of his arraignment. Arraignments for speeding violations are governed by Traf.R. 8, which provides, in part:

(B) Arraignment procedure
Arraignment shall be conducted in open court and shall consist of reading the complaint to the defendant, or stating to him the substance of the charge, and calling on him to plead thereto. The defendant shall be given a copy of the complaint, or shall acknowledge receipt thereof, before being called upon to plead and may in open court waive the reading of the complaint. * * *
(D) Explanation of rights
Before calling upon a defendant to plead at arraignment the judge shall cause him to be informed and shall determine that defendant knows and understands:
(1) That he has a right to counsel and the right to a reasonable continuance in the proceedings to secure counsel, and, pursuant to Criminal Rule 44, the right to have counsel assigned without ...

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