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State v. Clark

Court of Appeals of Ohio, Seventh District, Mahoning

June 9, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
KEWAN CLARK, DEFENDANT-APPELLANT.

         Criminal Appeal from the Youngstown Municipal Court of Mahoning County, Ohio Case No. 2016 CRB 1597

          For Plaintiff-Appellee: Atty. Jeffrey Moliterno Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. Edward Czopur Degenova & Yarwood, Ltd

          JUDGES: Hon. Carol Ann Robb Hon. Gene Donofrio Hon. Mary DeGenaro.

          OPINION

          ROBB, P.J.

         {¶1} Defendant-Appellant Kewan Clark appeals the judgment of the Youngstown Municipal Court finding him guilty upon his no contest plea. He contends the trial court erred in finding him guilty, alleging the record does not contain an adequate explanation of circumstances as required by R.C. 2937.07 for misdemeanor no contest pleas. For the following reasons, the trial court's judgment is affirmed.

         STATEMENT OF THE CASE

         {¶2} After a July 3, 2016 traffic stop, complaints were filed against Appellant in the Youngstown Municipal Court; the Ohio State Highway Patrol (OSHP) incident report was incorporated and attached. Appellant was charged with fifth-degree felony drug trafficking in violation of R.C. 2925.03(A)(2) and tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony. He was also issued three traffic tickets. A written plea agreement was entered just prior to the scheduled preliminary hearing.

         {¶3} In return for Appellant's no contest plea, the prosecution agreed to amend the felony drug trafficking charge to first-degree misdemeanor drug possession in violation of R.C. 2925.11. The prosecution also agreed to amend the felony tampering with evidence charge to obstruction of official business, a second-degree misdemeanor. See R.C. 2921.31(A) ("No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties."). The prosecution recommended one year of probation plus forfeiture of the $6, 721 seized during Appellant's arrest.

         {¶4} After the plea hearing, the court sentenced Appellant to 90 days in jail and three years of intensive probation. The court imposed a $200 fine on each offense and ordered the $6, 721 to be forfeited to the OSHP. Appellant filed a timely notice of appeal from the July 12, 2016 sentencing order.

         ASSIGNMENT OF ERROR

         {¶5} Appellant's sole assignment of error provides:

"The trial court committed reversible error when it found Appellant guilty, of each charge, without an explanation of the circumstances as required by R.C. 2937.07."

         {¶6} Appellant argues the discussion of the offenses by the prosecution was insufficient to constitute an explanation of circumstances. He notes the Supreme Court's main case of the subject held "a defendant has a substantive right to be discharged by a finding of not guilty where the statement of facts reveals a failure to establish all of the elements of the offense." See City of Cuyahoga Falls v. Bowers,9 Ohio St.3d 148, 150, 459 N.E.2d 532 (1984) (but then vacating the plea and remanding to the trial for further proceedings). Appellant concludes the failure to provide an adequate explanation of circumstances upon a no contest plea equates to insufficient evidence, which requires ...


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