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City of Strongsville v. Semenchuk

Court of Appeals of Ohio, Eighth District

July 25, 2013

CITY OF STRONGSVILLE PLAINTIFFS-APPELLEES
v.
ELIZABETH SEMENCHUK DEFENDANT-APPELLANT

Criminal Appeal from the Berea Municipal Court Case No. 11 TRC 04324

ATTORNEY FOR APPELLANT Paul Mancino, Jr.

ATTORNEY FOR APPELLEES George F. Lonjak City of Strongsville Prosecutor

BEFORE: Rocco, P.J., Blackmon, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, PRESIDING JUDGE

{¶ 1} After entering a plea of no contest in Berea Municipal Court to the charge of operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(l)(a)("OVI"), defendant-appellant Elizabeth Semenchuk appeals from her conviction and from the sentence imposed.

{¶ 2} Semenchuk presents five assignments of error. She claims the municipal court violated her constitutional right to due process of law in accepting her plea because, prior to asking her if she wanted to change her plea from "not guilty, " the court: (1) failed to inform her of the potential penalties involved; (2) and (5) failed to explain fully the effect of a no contest plea; and (3) failed to require her to personally state that she pleaded no contest. Semenchuk also claims in her fourth assignment of error that the municipal court improperly imposed a fine and ordered her to pay the costs of the action, because she stated during the sentencing hearing that she was indigent.

{¶3} Upon a review of the record, this court cannot find merit to any of Semenchuk's claims. Consequently, Semenchuk's conviction and sentence are affirmed.

{¶ 4} According to the record, a Strongsville police officer cited Semenchuk on September 9, 2011 for three traffic violations. Semenchuk was cited for OVI in violation of R.C. 4511.19(A)(1)(a), and two violations of the Strongsville municipal code, i.e., failure to maintain an assured clear distance (speed), and operating a vehicle with a prohibited blood alcohol concentration ("BAC"). Her case went to the Berea Municipal Court, where she pleaded not guilty to the offenses.

{¶5} Eventually, the prosecutor and Semenchuk's retained defense attorney notified the court that a plea agreement had been reached. On August 31, 2012, the municipal court called Semenchuk's case for a hearing on the matter. Semenchuk and her attorney were present.

{¶ 6} The municipal court judge began the proceeding by stating to Semenchuk that it was his understanding that she had "convinced the Prosecutor to dismiss the BAC over .17 and the Assured Clear Distance * * * ." This left only the OVI.[1] The judge further noted that " as a part of the plea bargain, " Semenchuk had "agreed to pay the court costs on those dismissed charges."[2]

{¶ 7} Although Semenchuk's attorney verified that those were the terms of the plea agreement, the judge nevertheless asked Semenchuk personally if that were also her understanding; she replied "Yes." When the judge asked what Semenchuk's plea would be to the remaining charge, defense counsel stated: "No contest, contest (sic) to finding guilty."

{¶ 8} The transcript indicates this exchange then followed:

THE COURT: Ms. Semenchuk, you know that [your attorney] is an excellent lawyer and I'm sure that he has reviewed with you the consequences of a no contest plea, but the Supreme Court requires that I have a dialogue with you in that regards so be advised when you plead no contest, you're not admitting guilt to the charge itself, but you are admitting that the facts that the charge is based on [are] true. So, you can assume that I'd find you guilty but the results of the plea can't be used against you later on in a civil or criminal proceeding. Do you understand that?
MS. SEMENCHUK: Yes, Your Honor.
THE COURT: I'll accept a no contest, find guilty, refer to ...

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