State v. Bourn

2018 Ohio 2040

• Court: Ohio Court of Appeals
• Decided: May 25, 2018
• Docket: S-17-032 S-17-029
• Status: Published

Opinion

[Cite as State v. Bourn, 2018-Ohio-2040.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals Nos. S-17-032 S-17-029 Appellee Trial Court No. TRD 1503114A

v.

Jermaine R. Bourn DECISION AND JUDGMENT

Appellant Decided: May 25, 2018

*****

Brett A. Klimkowsky, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal from an August 4, 2017 judgment of the Fremont

Municipal Court, Sandusky County, Ohio, denying appellant’s post-sentence Crim.R. 32.1 motion to withdraw a no contest plea to one count of driving with fictitious plates, in

violation of R.C. 4549.08.

{¶ 2} We note that appellee declined to submit a brief opposing the instant appeal.

For the reasons set forth below, this court vacates the plea, reverses the trial court

judgment, and remands this matter back to the trial court for further proceedings

consistent with this opinion.

{¶ 3} Appellant, Jermaine R. Bourn, sets forth the following assignment of error:

1. [T]he Trial Court committed reversible error by refusing to permit

Appellant to withdraw Appellant’s nolo contendere plea.

{¶ 4} The following undisputed facts are relevant to this appeal. On September

28, 2015, appellant was cited on one count of driving under suspension, in violation of

R.C. 4510.16, and one count of driving with fictitious plates, in violation of R.C.

4549.08.

{¶ 5} On June 20, 2017, appellant entered a no contest plea to the fictitious plates

offense, in exchange for dismissal of the other pending traffic offense. The trial court

sentenced appellant to a 10-day suspended term of incarceration, $100.00 fine, and court

costs.

{¶ 6} On August 1, 2017, upon discovering that this plea agreement would be

reported to the Ohio Bureau of Motor Vehicles (“BMV”), triggering an additional license

2. suspension, appellant filed a Crim.R. 32.1 post-sentence motion to withdraw the

previously entered plea. On August 4, 2017, the motion was denied. This appeal ensued.

{¶ 7} In the sole assignment of error, appellant maintains that the trial court failed

to comply with Crim.R. 11(E) such that it was prejudicial error to deny appellant’s

motion to withdraw the no contest plea as it was not knowingly and intelligently made.

We concur.

{¶ 8} Crim.R. 32.1 establishes that, “A motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest injustice

the court after sentence may set aside the judgment of conviction and permit the

defendant to withdraw his or her plea.”

{¶ 9} It is well-established that when a trial court completely fails to comply with

Crim.R. 11, whether the rights at stake are constitutional or non-constitutional, it may be

presumed that a knowing, intelligent, and voluntarily plea could not have been made such

that the plea must be vacated. State v. Whitfield, 6th Dist. Lucas No. L-17-1083, 2018-

Ohio-667, ¶ 9.

{¶ 10} In conjunction with the above, Crim.R. 11(E) establishes that in

misdemeanor cases such as the traffic offenses underlying the instant case, “[T]he court *

* * shall not accept such pleas without first informing the defendant of the effect of the

plea of guilty, no contest, and not guilty.”

3. {¶ 11} We have carefully reviewed and considered the record of evidence in the

instant case, paying particular attention to the transcript of the change of plea

proceedings.

{¶ 12} The record reflects that the trial court failed to comply with Crim.R. 11(E).

The record shows that the trial judge did not directly address the defendant regarding any

of the rights being waived or the effects of the plea being entered. On the contrary, the

record shows that the trial court addressed solely appellant’s trial counsel, but did not

directly address appellant, on substantive matters. The record further shows that the trial

court’s discourse wholly failed to address the rights being waived and the effects of the

plea.

{¶ 13} The record reflects that the trial court stated to appellant’s counsel, “Today

you wish to withdraw a not guilty plea entered in this charge?” Counsel for appellant

answered in the affirmative. Shortly thereafter, the trial court summarily stated, “I think

we’ve touched all the bases. Defendant found guilty.” The record of evidence refutes that

conclusion.

{¶ 14} While the record reflects that the trial court did engage in direct discourse

at the change of plea hearing with appellant on a wide range of periphery issues, the trial

court failed to engage in any discourse with appellant to affirm appellant’s understanding

of the rights being waived or the effects of the plea.

4. {¶ 15} Based upon the foregoing, we find that the trial court did not comply with

Crim.R. 11(E) in this case. Therefore, we find appellant’s sole assignment of error well-

taken.

{¶ 16} Wherefore, the judgment of the Fremont Municipal Court is reversed,

appellant’s plea is vacated, and this case is remanded to the trial court for further

proceedings consistent with this decision. Appellee is ordered to pay the cost of this

appeal pursuant to App.R. 24.

Judgment reversed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. ____________________________ James D. Jensen, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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