State v. Muhire

2023 Ohio 1181

• Court: Ohio Court of Appeals
• Decided: April 10, 2023
• Docket: CA2022-10-095
• Status: Published

Opinion

[Cite as State v. Muhire, 2023-Ohio-1181.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-10-095

: OPINION - vs - 4/10/2023 :

FAUSTIN MUHIRE, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY AREA II COURT Case No. CRB 2200560

Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee.

Andrew J. Karas, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Faustin Muhire, appeals his conviction in the Butler County Area II

Court for one count of second-degree misdemeanor vehicular manslaughter.1 For the

reasons outlined below, we reverse and remand this matter to the trial court for further

proceedings.

1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar for purposes of issuing this opinion. Butler CA2022-10-095

Facts and Procedural History

{¶ 2} On July 12, 2022, a complaint was issued charging Muhire with one count of

first-degree misdemeanor vehicular homicide in violation of R.C. 2903.06(A)(3)(a).

Pursuant to that statute, no person, while operating or participating in the operation of a

motor vehicle, shall negligently cause the death of another. The charge arose following a

fatal accident between two semi-trucks traveling northbound on I-75 near mile marker 27 in

Liberty Township, Butler County, Ohio on the morning of April 22, 2022. The two semi-

trucks involved in the accident were driven by Muhire, a Texas resident, and the deceased

victim, James Barnett III.

{¶ 3} On September 28, 2022, Muhire and his defense counsel appeared before

the trial court for what ultimately resulted in a combined plea and sentencing hearing.

During this hearing, Muhire's counsel advised the trial court that Muhire would be entering

a plea of no contest to the charged vehicular homicide offense. Upon being so advised, the

trial court addressed Muhire and stated:

Sir, you understand that a no contest plea is a full admission to the facts of the case, okay? But you're saying that you don't necessarily agree that those facts constitute the elements of the offense. That's what it says legally. I can tell you almost, probably about 97 percent of the cases where someone pleads no contest it ends up being a finding of guilty. And I understand that you want to enter a no contest plea. Is that what you're telling me?

To this, Muhire answered with what the transcriptionist described as an inaudible response.

{¶ 4} Although not particularly clear, it appears the trial court then advised Muhire

that rather than a plea of no contest to the first-degree misdemeanor vehicular homicide

offense as originally charged, that he would instead be entering a no contest plea to an

amended charge of second-degree misdemeanor vehicular manslaughter in violation of

R.C. 2903.06(A)(4). Pursuant to that statute, no person, while operating or participating in

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the operation of a motor vehicle, shall cause the death of another:

[a]s the proximate result of committing a violation of any provision of any section contained in Title XLV of the Revised Code that is a minor misdemeanor or of a municipal ordinance that, regardless of the penalty set by ordinance for the violation, is substantially equivalent to any provision of any section contained in Title XLV of the Revised Code that is a minor misdemeanor.

The record is devoid of any evidence to indicate why the trial court may have made this

amendment, nor is there anything in the record to indicate either party ever requested such

an amendment. The record is also devoid of any evidence to indicate that either party even

knew that such an amendment was being made.

{¶ 5} The trial court then advised Muhire of his rights, including his right to a jury

trial and his right to have the state prove his guilt beyond a reasonable doubt. The transcript

indicates that the trial court then addressed Muhire again and, according to the

transcriptionist, had the following exchange:

THE COURT: * * * Do you understand [your rights]?

THE DEFENDANT: (Inaudible)

THE COURT: Okay. And you understand that by pleading no contest (indiscernible) and that's what you want to do and nobody is forcing you to do that?

[DEFENSE COUNSEL]: That's a question. He's asking you a question.

THE COURT: Is that what you want to do? Nobody is forcing you to do anything. The prosecutor is not forcing you to take (indiscernible) your attorney is not forcing you to do?

THE DEFENDANT: (Indiscernible)

THE COURT: This is a no contest plea.

{¶ 6} Muhire's defense counsel then interrupted the proceedings and stated, "Your

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Honor, before we get into that, if I could just address the Court as to my client's citizenship."

Muhire's counsel then assured the trial court that Muhire was, in fact, a United States citizen

despite it being "a little unclear * * * from the State's perspective." Following this exchange,

the trial court then asked the state to read a recitation of the facts into the record. The facts

read into the record by the state were as follows:

[O]n April 22nd, 2022 at 8:30 a.m. [Muhire] was operating a motor vehicle on I-75 approximately mile marker 27, Liberty Township, Butler County, Ohio. He caused the death of another. He operated his truck in a negligent manner. That negligent manner caused the death of the victim in this case.

{¶ 7} Once the state concluded its recitation of the facts, Muhire's defense counsel

stated, "Nothing on the facts, Your Honor." The trial court then stated, "So I'm going to take

your no contest plea and will find you guilty." The record indicates the trial court made this

guilt finding without Muhire ever actually entering a no contest plea into the record on either

the originally charged first-degree misdemeanor vehicular homicide in violation of R.C.

2903.06(A)(3)(a) or the court amended charge of second-degree misdemeanor vehicular

manslaughter in violation of R.C.2903.06(A)(4).

{¶ 8} The hearing then proceeded immediately to Muhire's sentencing. Following

mitigation, and after hearing from the victim's fiancé, the trial court sentenced Muhire to

serve 90 days in jail, with 85 of those days suspended, to begin on the evening of October

12, 2022. The trial court also suspended Muhire's driver's license for a period of two years

and ordered Muhire to pay a $750 fine plus court costs. On September 30, 2022, Muhire

filed a motion with the trial court requesting to stay the execution of his sentence pending

appeal. The trial court granted Muhire's request on October 4, 2022. Muhire filed his notice

of appeal the next day, October 5, 2022.

Muhire's Appeal and Three Assignments of Error

{¶ 9} Muhire now appeals his conviction, raising three assignments of error for

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review. In his first assignment of error, Muhire argues his no contest plea, if such a plea

was actually ever made, was not knowingly, intelligently, and voluntarily entered. In his

second assignment of error, Muhire argues his conviction for one count of second-degree

misdemeanor vehicular manslaughter was not supported by sufficient evidence. In his third

assignment of error, Muhire argues the trial court erred by sentencing him to serve what

amounts to five days in jail. This court has read the briefs submitted by Muhire and the

state. This court has also thoroughly reviewed the record on appeal. This includes a careful

review of the transcript of Muhire's joint plea and sentencing hearing. Upon such review,

we find Muhire's first assignment of error to be dispositive in this case, thereby rendering

Muhire's second and third assignments of error moot. Therefore, because we find Muhire's

first assignment of error dispositive, we will limit our review and analysis to Muhire's first

assignment of error only.2

Muhire Never Entered a No Contest Plea into the Record

{¶ 10} It is well established that when the trial court accepts a defendant's plea of no

contest, the record must affirmatively demonstrate that the defendant's plea was knowingly,

intelligently, and voluntarily entered. State v. Erdman, 12th Dist. Butler No. CA2016-07-

126, 2017-Ohio-1092, ¶ 7. In this case, however, the record firmly establishes that Muhire

never actually entered a no contest plea into the record prior to the trial court issuing its

decision finding Muhire guilty. The record instead plainly demonstrates that while Muhire

was attempting to enter his plea of no contest that Muhire's defense counsel interrupted the

proceedings to assure the trial court that Muhire was a United States citizen. A trial court

cannot find a defendant guilty based upon a plea of no contest when the defendant never

actually entered his or her no contest plea into the record. This holds true even where, as

2. App.R. 12(A)(1)(C) requires this court to decide each assignment of error and give reasons in writing for its decision "[u]nless an assignment of error is made moot by a ruling on another assignment of error." -5- Butler CA2022-10-095

here, the record indicates the defendant had the clear intention of entering such a plea prior

to the trial court making its guilt finding. Therefore, because the record in this case

demonstrates that Muhire never actually entered a plea of no contest into the record prior

to the trial court issuing its decision finding him guilty, Muhire's conviction must be reversed

and this matter remanded to the trial court for further proceedings.

Any No Contest Plea Muhire May Have Made was Not Knowingly, Intelligently, and Voluntarily Entered

{¶ 11} Alternatively, even if we were to find Muhire had entered a no contest plea

prior to the trial court finding him guilty, Muhire's plea was not knowingly, intelligently, and

voluntarily made. To ensure that a defendant's no contest plea is knowingly, intelligently,

and voluntarily entered, "trial courts must accurately advise defendants of the law in Crim.R.

11 plea colloquies." State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 41. "A trial

court's obligations in accepting a plea [is] depend[ent] upon the level of offense to which

the defendant is pleading." State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 6. "The

advisements required for misdemeanors under Crim.R. 11 depend on whether the

misdemeanor is a 'serious offense' or a 'petty offense.'" State v. Ybarra, 6th Dist. Wood No.

WD-19-006, 2019-Ohio-4824, ¶ 28; see Crim.R. 11(D) and (E). A "petty offense" is defined

by Crim.R. 2(D) to mean "a misdemeanor other than a serious offense." Crim.R. 2(C)

defines a "serious offense" as "any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months."

{¶ 12} Both offenses relevant to this case, first-degree misdemeanor vehicular

homicide in violation of R.C. 2903.06(A)(3)(a) and second-degree misdemeanor vehicular

manslaughter in violation of R.C. 2903.06(A)(4), are considered petty offenses given the

maximum possible punishment for either offense was not more than six months in jail. See

R.C. 2929.24(A)(1) and (2) (a first-degree misdemeanor offense carries a maximum of not

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more than 180 days in jail, whereas a second-degree misdemeanor offense carries with it

a maximum of not more than 90 days in jail); see also State v. Rusu, 9th Dist. Summit No.

25597, 2012-Ohio-2613, ¶ 8 ("[t]he [s]tate correctly classifies [appellant's] vehicular

homicide conviction as a petty offense because it is a first-degree misdemeanor punishable

by up to six months in jail"). Therefore, because both first-degree misdemeanor vehicular

homicide in violation of R.C. 2903.06(A)(3)(a) and second-degree misdemeanor vehicular

manslaughter in violation of R.C. 2903.06(A)(4) are petty offenses as defined by Crim.R.

2(D), it is the plea procedure set forth in Crim.R. 11(E) that applies to the case at bar. See

State v. Doty, 12th Dist. Clermont No. CA2018-07-055, 2019-Ohio-917, ¶ 4, fn. 1.

{¶ 13} Pursuant to Crim.R. 11(E), in misdemeanor cases involving petty offenses,

the trial court must not accept a defendant's no contest plea without first informing the

defendant of the effect of his or her plea. See State v. Jones, 116 Ohio St.3d 211, 2007-

Ohio-6093, ¶ 20 ("in accepting a plea to a misdemeanor involving a petty offense, a trial

court is required to inform the defendant only of the effect of the specific plea being

entered"). This requires the trial court to "inform the defendant of the appropriate language

found under Crim.R. 11(B)." State v. Chapman, 12th Dist. Butler No. CA2019-02-034,

2019-Ohio-5026, ¶ 13, citing id. at ¶ 25. "Thus, for a no contest plea, a defendant must be

informed that the plea of no contest is not an admission of guilt but is an admission of the

truth of the facts alleged in the complaint, and that the plea or admission shall not be used

against the defendant in any subsequent civil or criminal proceeding." Jones at ¶ 23, citing

Crim.R. 11(B)(2).

{¶ 14} The record in this case indicates that although the trial court did advise Muhire

that a no contest plea would serve as an admission of the truth of the facts alleged in the

complaint, the trial court did not advise Muhire that a no contest plea was not an admission

of guilt. The trial court also did not advise Muhire that a no contest plea could not be used

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against him in any subsequent civil or criminal proceeding. We find the trial court's

adherence, or lack thereof, to the requirements set forth in Crim.R. 11(E) troubling given

the ease in which those requirements can be satisfied. That is, as noted above, by

informing the defendant of the effect of the specific plea being entered by simply reading,

word-for-word, if necessary, the appropriate language found under Crim.R. 11(B). See

Jones at ¶ 20.

{¶ 15} What we find more troubling, however, is the lack of evidence to indicate

Muhire, Muhire's defense counsel, the state, or even the trial court knew to what charge

Muhire was, or should have been, pleading. Was Muhire pleading to first-degree

misdemeanor vehicular homicide in violation of R.C. 2903.06(A)(3)(a) or second-degree

misdemeanor vehicular manslaughter in violation of R.C. 2903.06(A)(4)? The record is

unclear and full of contradictions that cannot be ignored.3 This is because, and as is now

well established, "[d]ue process requires that a plea in a criminal case be made knowingly,

intelligently, and voluntarily." State v. Willenburg, 12th Dist. Clermont No. CA2008-06-066,

2009-Ohio-1454, ¶ 8, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). This due process

protection applies regardless of whether the plea being entered by the defendant is a plea

of guilty or a plea of no contest. State v. Underwood, 7th Dist. Mahoning No. 11 MA 170,

2012-Ohio-4263, ¶ 9. It should be understood that a defendant's plea is not knowingly,

intelligently, or voluntarily entered when the defendant, defense counsel, the state, and the

trial court do not know to what charge the defendant is, or should be, pleading.

Conclusion

{¶ 16} For the reasons outlined above, any plea that Muhire may have made at the

3. These contradictions began almost immediately after the complaint was filed when the trial court issued a summons that misadvised Muhire that he was being summoned and ordered to appear for his arraignment on a charge of first-degree misdemeanor vehicular manslaughter rather than on a charge of first-degree misdemeanor vehicular homicide. -8- Butler CA2022-10-095

joint plea and sentencing hearing held on September 28, 2022 is hereby vacated as such

plea, if one was in fact entered, was not knowingly, intelligently, and voluntarily made. The

trial court's decision finding Muhire guilty of one count of second-degree misdemeanor

vehicular manslaughter is also hereby reversed and this matter is remanded to the trial

court for further proceedings. Upon remand, the trial court shall hold a hearing, on the

record in a manner that can be properly transcribed, where a decision shall be made as to

whether Muhire is facing the originally charged offense of first-degree misdemeanor

vehicular homicide in violation of R.C. 2903.06(A)(3)(a) or the amended charge of second-

degree misdemeanor vehicular manslaughter in violation of R.C. 2903.06(A)(4).4 Once that

decision has been made, and Muhire properly notified, the matter shall proceed in a manner

that the trial court deems fit and as is consistent with law and this court's decision herein.

This includes, but is not limited to, Marsy's Law as set forth in Article I, Section 10a of the

Ohio Constitution.

{¶ 17} Judgment reversed and remanded.

PIPER and BYRNE, JJ., concur.

4. We note that Muhire conceivably could have, but did not, avail himself of the procedures set forth in App.R. 9 rather than relying on a transcript that contained so many references to responses that were inaudible and/or audio that was indiscernible. See App.R. 9(C) and (D). That rule, however, also requires the trial court "ensure that all proceedings of record are recorded by a reliable method, which may include a stenographic/shorthand reporter, audio-recording device, and/or video-recording device." App.R. 9(A)(2). That was clearly not done in this case, thereby making this case more difficult than what would have otherwise been necessary. -9-