[Cite as Lakewood v. Hocter, 2023-Ohio-375.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF LAKEWOOD, :
Plaintiff-Appellee, : No. 111572 v. :
RICHARD R. HOCTOR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 3, 2023
Criminal Appeal from the Lakewood Municipal Court Case No. 2022CRB00327
Appearances:
Brian T. Corrigan, Lakewood Director of Law, and Andrew N. Fleck, Assistant Prosecuting Attorney, for appellee.
Milton and Charlotte Kramer Law Clinic, Case Western Reserve University School of Law, Andrew S. Pollis, Supervising Attorney; Matt Borcas, Tristan Cavanaugh, and Richard McGraw, Legal Interns, for appellant.
SEAN C. GALLAGHER, J.:
Defendant-appellant, Richard R. Hoctor, appeals his judgment of
conviction, following a plea of no contest on three counts. Upon review, we reverse the judgment and remand the case to the trial court with instructions to vacate the
plea and to conduct further proceedings consistent with this opinion.
Appellant was charged with four misdemeanor offenses in this case.
He entered a plea of not guilty at the arraignment held on April 26, 2022.1 On May 3,
2022, pursuant to a plea agreement, appellant entered a plea of no contest to three
of the four counts, including aggravated menacing, a misdemeanor of the first
degree in violation of R.C. 2903.21; resisting arrest, a misdemeanor of the second
degree in violation of R.C. 2921.33; and intimidation of a victim in a criminal case,
a misdemeanor of the first degree in violation of R.C. 2921.04. The trial court found
appellant guilty of those three offenses, and the remaining count for assault was
dismissed. The trial court imposed a total sentence of 360 days in jail with credit for
time served.
In his sole assignment of error on appeal, appellant claims that the
trial court erred by accepting his no-contest plea without informing him of the effect
of a no-contest plea as required by Crim.R. 11(E) and in accordance with the
language of Crim.R. 11(B)(2). We conduct a de novo review to determine whether
the trial court accepted a plea in compliance with Crim.R. 11. State v. Meadows, 8th
Dist. Cuyahoga No. 111489, 2022-Ohio-4513, ¶ 18, citing State v. Cardwell, 8th Dist.
Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26.
1Appellant was initially arraigned on three charges, and thereafter a fourth charge was added against him. A defendant’s plea must be made knowingly, intelligently, and
voluntarily. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286,
¶ 10, citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992);
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. The
enforcement of a plea that is not so made is unconstitutional under both the United
States Constitution and the Ohio Constitution. State v. Byas, 8th Dist. Cuyahoga
No. 110157, 2021-Ohio-3924, ¶ 25, citing State v. Engle, 74 Ohio St.3d 525, 527, 660
N.E.2d 450 (1996).
Crim.R. 11, which outlines the procedures that trial courts are to
follow when accepting pleas, “‘ensures an adequate record on review by requiring
the trial court to personally inform the defendant of his rights and the consequences
of his plea and determine if the plea is understandingly and voluntarily made.’”
Dangler at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411
(1975). The rule includes a requirement of informing the defendant of the effect of
a plea. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 20-
21, citing Crim.R. 11(C)(2)(b), (D), and (E). The requirement appears in Crim.R.
11(C)(2)(b) for felony cases, in Crim.R. 11(D) for misdemeanor cases involving
serious offenses, and in Crim.R. 11(E) for misdemeanor cases involving petty
offenses.
As applicable to this matter, Crim.R. 11(E) requires that “[i]n
misdemeanor cases involving petty offenses the court * * * shall not accept [a plea
of guilty or no contest] without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty.” Crim.R. 11(E) requires the trial court to inform
the defendant of the effect of the specific plea being entered. Jones at ¶ 14, 20. The
requirement of informing the defendant of the effect of the plea is not satisfied by
informing the defendant of the maximum possible penalty and the right to a jury
trial. Id. at ¶ 22. Instead, “to satisfy the requirement of informing a defendant of
the effect of a plea, a trial court must inform the defendant of the appropriate
language under Crim.R. 11(B)” either orally or in writing before accepting a plea.
Jones at ¶ 25, 51. On the effect of a no-contest plea, Crim.R. 11(B)(2) provides as
follows:
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 admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
When there is a failure by the trial court to make any mention of the
Crim.R. 11(B) language regarding the effect of a no-contest plea to a petty
misdemeanor offense, a prejudice analysis is not necessary and the plea must be
vacated. State v. Clay, 2d Dist. Miami No. 2021-CA-21, 2022-Ohio-631, ¶ 11, citing
Brecksville v. Grabowski, 2017-Ohio-7885, 98 N.E.3d 919, ¶ 13 (8th Dist.); State v.
Jackson, 2d Dist. Champaign No. 2021-CA-44, 2022-Ohio-3662, ¶ 12, 14; State v.
Brown, 9th Dist. Lorain No. 19CA011588, 2021-Ohio-3443, ¶ 12; Parma v.
Buckwald, 8th Dist. Cuyahoga Nos. 92356 and 92356, 2009-Ohio-4032, ¶ 46. The
same is true when a trial court fails to provide any explanation regarding the effect
of a no-contest plea as required by Crim.R. 11(C)(2) in a felony case. Byas, 8th Dist. Cuyahoga No. 110157, 2021-Ohio-3924, at ¶ 56, citing Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, 164 N.E.3d 286, at ¶ 15. As stated in Dangler, “a trial court’s
complete failure to comply with a portion of Crim.R. 11(C) eliminates the
defendant’s burden to show prejudice.” Dangler at ¶ 15.2
In this case, the transcript reflects that before accepting appellant’s
plea of no contest, the trial court informed appellant of the nature of the charges, the
maximum penalties involved, and of the constitutional rights he would be giving up.
However, the record reflects that at no point did the trial court inform appellant of
the effect of a no-contest plea, either orally or in writing. While we have little doubt
that appellant was aware of what was transpiring and understood the charges to
which he was pleading no contest, we are constrained to follow the authority
discussed herein. “Although Crim.R. 11(E) does not require the trial court to engage
in a lengthy inquiry when a plea is accepted to a misdemeanor charge involving a
petty offense, the rule does require that certain information be given on the ‘effect
of the plea.’” Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at ¶ 51.
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[Cite as Lakewood v. Hocter, 2023-Ohio-375.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
CITY OF LAKEWOOD, :
Plaintiff-Appellee, : No. 111572 v. :
RICHARD R. HOCTOR, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 3, 2023
Criminal Appeal from the Lakewood Municipal Court Case No. 2022CRB00327
Appearances:
Brian T. Corrigan, Lakewood Director of Law, and Andrew N. Fleck, Assistant Prosecuting Attorney, for appellee.
Milton and Charlotte Kramer Law Clinic, Case Western Reserve University School of Law, Andrew S. Pollis, Supervising Attorney; Matt Borcas, Tristan Cavanaugh, and Richard McGraw, Legal Interns, for appellant.
SEAN C. GALLAGHER, J.:
Defendant-appellant, Richard R. Hoctor, appeals his judgment of
conviction, following a plea of no contest on three counts. Upon review, we reverse the judgment and remand the case to the trial court with instructions to vacate the
plea and to conduct further proceedings consistent with this opinion.
Appellant was charged with four misdemeanor offenses in this case.
He entered a plea of not guilty at the arraignment held on April 26, 2022.1 On May 3,
2022, pursuant to a plea agreement, appellant entered a plea of no contest to three
of the four counts, including aggravated menacing, a misdemeanor of the first
degree in violation of R.C. 2903.21; resisting arrest, a misdemeanor of the second
degree in violation of R.C. 2921.33; and intimidation of a victim in a criminal case,
a misdemeanor of the first degree in violation of R.C. 2921.04. The trial court found
appellant guilty of those three offenses, and the remaining count for assault was
dismissed. The trial court imposed a total sentence of 360 days in jail with credit for
time served.
In his sole assignment of error on appeal, appellant claims that the
trial court erred by accepting his no-contest plea without informing him of the effect
of a no-contest plea as required by Crim.R. 11(E) and in accordance with the
language of Crim.R. 11(B)(2). We conduct a de novo review to determine whether
the trial court accepted a plea in compliance with Crim.R. 11. State v. Meadows, 8th
Dist. Cuyahoga No. 111489, 2022-Ohio-4513, ¶ 18, citing State v. Cardwell, 8th Dist.
Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26.
1Appellant was initially arraigned on three charges, and thereafter a fourth charge was added against him. A defendant’s plea must be made knowingly, intelligently, and
voluntarily. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286,
¶ 10, citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992);
State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25. The
enforcement of a plea that is not so made is unconstitutional under both the United
States Constitution and the Ohio Constitution. State v. Byas, 8th Dist. Cuyahoga
No. 110157, 2021-Ohio-3924, ¶ 25, citing State v. Engle, 74 Ohio St.3d 525, 527, 660
N.E.2d 450 (1996).
Crim.R. 11, which outlines the procedures that trial courts are to
follow when accepting pleas, “‘ensures an adequate record on review by requiring
the trial court to personally inform the defendant of his rights and the consequences
of his plea and determine if the plea is understandingly and voluntarily made.’”
Dangler at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411
(1975). The rule includes a requirement of informing the defendant of the effect of
a plea. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 20-
21, citing Crim.R. 11(C)(2)(b), (D), and (E). The requirement appears in Crim.R.
11(C)(2)(b) for felony cases, in Crim.R. 11(D) for misdemeanor cases involving
serious offenses, and in Crim.R. 11(E) for misdemeanor cases involving petty
offenses.
As applicable to this matter, Crim.R. 11(E) requires that “[i]n
misdemeanor cases involving petty offenses the court * * * shall not accept [a plea
of guilty or no contest] without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty.” Crim.R. 11(E) requires the trial court to inform
the defendant of the effect of the specific plea being entered. Jones at ¶ 14, 20. The
requirement of informing the defendant of the effect of the plea is not satisfied by
informing the defendant of the maximum possible penalty and the right to a jury
trial. Id. at ¶ 22. Instead, “to satisfy the requirement of informing a defendant of
the effect of a plea, a trial court must inform the defendant of the appropriate
language under Crim.R. 11(B)” either orally or in writing before accepting a plea.
Jones at ¶ 25, 51. On the effect of a no-contest plea, Crim.R. 11(B)(2) provides as
follows:
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 admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
When there is a failure by the trial court to make any mention of the
Crim.R. 11(B) language regarding the effect of a no-contest plea to a petty
misdemeanor offense, a prejudice analysis is not necessary and the plea must be
vacated. State v. Clay, 2d Dist. Miami No. 2021-CA-21, 2022-Ohio-631, ¶ 11, citing
Brecksville v. Grabowski, 2017-Ohio-7885, 98 N.E.3d 919, ¶ 13 (8th Dist.); State v.
Jackson, 2d Dist. Champaign No. 2021-CA-44, 2022-Ohio-3662, ¶ 12, 14; State v.
Brown, 9th Dist. Lorain No. 19CA011588, 2021-Ohio-3443, ¶ 12; Parma v.
Buckwald, 8th Dist. Cuyahoga Nos. 92356 and 92356, 2009-Ohio-4032, ¶ 46. The
same is true when a trial court fails to provide any explanation regarding the effect
of a no-contest plea as required by Crim.R. 11(C)(2) in a felony case. Byas, 8th Dist. Cuyahoga No. 110157, 2021-Ohio-3924, at ¶ 56, citing Dangler, 162 Ohio St.3d 1,
2020-Ohio-2765, 164 N.E.3d 286, at ¶ 15. As stated in Dangler, “a trial court’s
complete failure to comply with a portion of Crim.R. 11(C) eliminates the
defendant’s burden to show prejudice.” Dangler at ¶ 15.2
In this case, the transcript reflects that before accepting appellant’s
plea of no contest, the trial court informed appellant of the nature of the charges, the
maximum penalties involved, and of the constitutional rights he would be giving up.
However, the record reflects that at no point did the trial court inform appellant of
the effect of a no-contest plea, either orally or in writing. While we have little doubt
that appellant was aware of what was transpiring and understood the charges to
which he was pleading no contest, we are constrained to follow the authority
discussed herein. “Although Crim.R. 11(E) does not require the trial court to engage
in a lengthy inquiry when a plea is accepted to a misdemeanor charge involving a
petty offense, the rule does require that certain information be given on the ‘effect
of the plea.’” Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at ¶ 51.
Because the trial court failed to provide any explanation of the effect of a no-contest
plea, appellant’s plea was not knowingly, voluntarily, and intelligently made and
must be vacated in this case.
Appellant’s sole assignment of error is sustained.
2We note that the Supreme Court of Ohio held in Dangler that when reviewing a Crim.R. 11 plea challenge, “the traditional rule” continues to apply with certain exceptions to the prejudice component. Id. at ¶ 16. The analysis no longer focuses on strict, substantial, or partial compliance. See Dangler at ¶ 17. The trial court’s judgment is reversed, and the case is remanded with
instructions for the trial court to vacate Hoctor’s plea and to conduct further
proceedings consistent with this opinion. The trial court shall expedite the matter.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Lakewood Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________ SEAN C. GALLAGHER, JUDGE
MICHELLE J. SHEEHAN, P.J., and EILEEN T. GALLAGHER, J., CONCUR