[Cite as State v. Ruley, 2018-Ohio-3201.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2017-CA-10 : v. : Trial Court Case No. 2017-CRA-338 : MATTHEW RULEY : (Criminal Appeal from : Municipal Court) Defendant-Appellant : :
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OPINION
Rendered on the 10th day of August, 2018.
JONATHAN B. FREEMAN, Atty. Reg. No. 0067683, 215 W. Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee
JULIA B. PEPPO, Atty. Reg. No. 0037172, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant
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FROELICH, J. -2-
{¶ 1} Matthew Ruley appeals from a judgment of the Miami County Municipal
Court that sentenced him to 180 days of incarceration following his guilty plea to a
first-degree misdemeanor count of drug possession and ordered him to pay costs. For the
reasons that follow, the judgment of the trial court will be affirmed.
Factual and Procedural Background
{¶ 2} On January 20, 2017, Ruley was dropped outside the Tipp City fire station in
an unconscious state, apparently suffering from a drug overdose. Emergency medical
services [“EMS”] personnel at the fire station revived Ruley by administering “numerous”
doses of Narcan. One EMS crew member directed the responding Tipp City police officer
to “a used syringe” that EMS personnel had removed from Ruley’s pocket and “a small
baggie with a white substance” found on the ground next to Ruley. Based on those items,
Ruley was charged with possession of “suspected heroin” in violation of R.C. 2925.11(A),
a felony of the fifth degree, and possession of drug abuse instruments in violation of R.C.
2925.12, a misdemeanor of the second degree.1
{¶ 3} Because Tipp City EMS immediately transported Ruley to a hospital for
further treatment, he was notified of the charges against him via a summons to appear in
the Miami County Municipal Court on February 7, 2017. Ruley personally appeared on
that date and remained out of custody under the terms of an own-recognizance bond.
{¶ 4} On March 16, 2017, Ruley appeared in court without an attorney and entered
a plea of guilty to a first-degree misdemeanor. The transcript of that proceeding includes
1 Although the police report and certain trial court records indicate that Ruley was charged with possession of drug abuse instruments, the record on appeal does not include documents from Miami County Municipal Court Case No. 2017 CRA 339, which relate to that second charge. -3- the following dialogue between Ruley and the trial court:
JUDGE: * * * Mr. Ruley, you’re charged, you’re charged with Possession of
Drugs, a felony of the fifth degree and that case comes on today for what we
call a preliminary hearing and at that preliminary hearing the State is
required to go forward with substantial, credible proof that the offense was
probably committed and that you probably committed the offense. Do you
understand that?
RULEY: Yes sir.
JUDGE: Okay. And you’re also charged with Possession of Drug Abuse
Instrument, a misdemeanor of the second degree. That is punishable by a
maximum fine of $750.00 and ninety (90) days in jail, do you understand
that?
RULEY: Um hum.
JUDGE: Now, it’s my understanding that you’ve had a discussion with the
prosecutor and the prosecutor has agreed to amend the felony five,
Possession of Drugs, to a misdemeanor one Possession of Drugs, which is
punishable by a maximum fine of $1,000.00 and six months in jail. Is that
your understanding?
JUDGE: And then the agreement was that you’d plead to the Possession of
Drugs and the Possession of a Drug Abuse Instrument. Is that your
understanding?
RULEY: Uh, I was under the understanding that the drug abuse instrument -4- was getting dismissed.
JUDGE: That the what was?
RULEY: That the drug abuse instrument was getting dismissed.
JUDGE: You are correct, I misread. Okay. So, you’re going to plead to the
misdemeanor one Possession of Drugs, the drug abuse instrument’s going
to be dismissed. That is your understanding, correct?
RULEY: Yes.
JUDGE: Okay. And is that what you want to do today?
JUDGE: You’re here without a lawyer?
JUDGE: You understand that you have a right to an attorney and that if you
can’t afford an attorney we’ll appoint one for you?
JUDGE: Is it your desire to go ahead and enter a plea today without benefit
of an attorney?
JUDGE: And I have to explain your other constitutional rights that you have
with respect to these charges. You have the right to a speedy public trial to
a court or to a jury, do you understand that?
JUDGE: You’d have the right to testify or not to testify in [sic] your own
behalf, do you understand that? -5- RULEY: Yes sir.
JUDGE: You’d have the right to subpoena in witnesses to testify for you.
You’d have the right to cross-examine State witnesses called against you,
do you understand that?
JUDGE: And you’d have the right to make the State prove you guilty by
proof beyond a reasonable doubt of each and every element of these
offenses by proof beyond a reasonable doubt before a court or a jury could
find you guilty, do you understand that?
JUDGE: Did you read and sign this white form?
JUDGE: Did you understand it?
JUDGE: You got any questions about it?
RULEY: No sir.
JUDGE: And what plea did you want to enter to that misdemeanor one
Possession of Drugs?
RULEY: Uh, guilty, Your Honor.
{¶ 5} Following a brief discussion of Ruley’s criminal record, his prior drug
treatment history and efforts to “stay clean,” and his duty to “[c]ooperate” as part of his
plea agreement, the trial court determined that Ruley should return for sentencing after
the completion of a presentence investigation. A copy of that PSI report is included in the -6- record on appeal, and it indicates several drug offense convictions and a prison sentence
for possession.
{¶ 6} Although Ruley was scheduled to be sentenced on April 26, 2017, the trial
court issued a bench warrant when Ruley failed to appear on that date. Ruley was
apprehended and returned to court on May 24, 2017, both for sentencing on the drug
possession charge and to enter a plea of not guilty on an unrelated theft charge in Miami
County Municipal Court Case No. 2017 CRB 1585.2 The transcript of the proceedings on
that date reflects that a public defender appeared on Ruley’s behalf as to Case No. 2017
CRB 1585, but Ruley spoke on his own behalf as to his prior failure to appear for
sentencing as scheduled in Case No. 2017 CRA 338.3 Ruley explained that he had been
working in Charlottesville, Virginia and was not able to leave the jobsite in order to return
for the April 26, 2017 sentencing. The following dialogue with the trial court then
transpired:
JUDGE: Okay. Now, I understand that and in terms of the scope of this stuff
that’s really kinda water over the damn [sic] now so I’ll accept what you have
to say for its value but let’s talk a little bit about your sentencing. What do
you want me to know before I sentence you on this drug abuse, or
possession of drug charge?
RULEY: Your Honor, I got out, when I got out of prison, they put me in the
2 No other information about the theft case is available in the record on this appeal. 3 We agree, as Ruley urges in his reply brief, that the record does not support the State’s supposition that the unnamed public defender then present also was representing Ruley for purposes of sentencing on the drug possession offense in this case. -7- VOA.4 I got out of the VOA, I made a mistake and I used. I OD’d and, I
mean, that’s what it was. I got charged for it. I mean, since then, I was
working. I was trying to do what I was supposed to do and I mean, I mean, I
want the opportunity to maybe get put on the Vivitrol shot and some
supervision or something. I mean, I always get put in jail and released, put
in jail and released and it’s not, I mean, it doesn’t do anything. I’m asking for
some, you know, some help through the courts. Maybe the Vivitrol shot or
something else, you know? * * *
***
RULEY: * * * I mean I’m asking for your mercy and asking for help. You
know, if you can release me or you know, if we can work something out as
far as anything but staying in jail again. I mean, I don’t know, I don’t know.
RULEY: * * * I’m just hoping maybe you can, you know, give me a chance.
Give me another chance.
JUDGE: Well, at this time, I’m not going to. I’m going to sentence you to
costs and 180 days in jail.
{¶ 7} The trial court then entered a written judgment imposing the stated 180-day
sentence, plus $187.00 in costs, with no fines, license suspension, or other terms
specified. Ruley appeals from that judgment, setting forth four assignments of error.
Mootness
4 Presumably, the Volunteers of America treatment center. -8- {¶ 8} As a preliminary matter, we must decide whether Ruley’s appeal presents a
justiciable controversy for this Court to resolve. “Where a defendant, convicted of a
criminal offense, has voluntarily paid the fine or completed the sentence for that offense,
an appeal is moot when no evidence is offered from which an inference can be drawn that
the defendant will suffer some collateral disability or loss of civil rights from such judgment
or conviction.” State v. Wilson, 41 Ohio St.2d 236, N.E.2d 236 (1975), paragraph one of
the syllabus; State v. Nared, 2d Dist. Clark No. 2017-CA-3, 2017-Ohio-6999, ¶ 11.
Indeed, “it is reversible error for an appellate court to consider the merits of an appeal that
has become moot after the defendant has voluntarily satisfied the sentence.” Cleveland
Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶ 18, citing State v.
Berndt, 29 Ohio St.3d 3, 4, 504 N.E.2d 712 (1987). The Ohio Supreme Court has limited
the holdings of Wilson and Berndt “to appeals from misdemeanor convictions in which the
appellant has voluntarily completed the sentence and in which no collateral
consequences resulted from the conviction, Lewis at ¶ 19, meaning that Ruley’s appeal of
his misdemeanor conviction in his case implicates mootness concerns.
{¶ 9} Acknowledging that he already has completed his 180-day sentence for the
subject offense, Ruley nonetheless argues in his Fourth Assignment of Error5 that this
appeal is not moot because 1) his fines remain unpaid, 2) the expected suspension of his
driver’s license is a “collateral consequence[ ]” of his conviction, and 3) this is a matter of
“first impression” regarding the conviction of a person who would be a “qualified
5 Ruley’s “Fourth Assignment of Error” more accurately would be termed an “issue presented for review,” as the argument neither attributes a mistake to the trial court nor includes a “reference to the place in the record where each error is reflected,” as required by App.R. 16(A)(3). -9- individual” immune from prosecution under Ohio’s “911 Good Samaritan Law,” codified at
R.C. 2529.11(B)(2)(b). The State counters that all issues raised by Ruley’s appeal in fact
are moot because he has served his full sentence, he is not subject to any fines, license
suspension or other “collateral consequences” of his conviction, and he is not a “qualified
individual” for purposes of R.C. 2529.22(B)(2)(b)’s protection.
{¶ 10} The trial judge did not order Ruley’s driver’s license suspended as part of
his sentence, and the version of R.C. 2925.11(E) applicable to this case does not require
a license suspension. Similarly, despite Ruley’s reference to unpaid “fines,” the judgment
entered by the trial court shows the amount of fines imposed to be zero. Nevertheless, the
trial court did impose court costs, and nothing in the record suggests that Ruley has paid
those costs. Unpaid court costs alone suffice to prevent a judgment from being moot,
even if an appellant has completed his jail sentence. See State v. Laster, 2d Dist.
Montgomery No. 25019, 2013-Ohio-621, ¶ 3, fn.1 (“Because the court costs remain
unpaid, Laster’s misdemeanor appeal is not moot * * *”); Nared at ¶ 12, citing Laster6.
Accordingly, we agree with Ruley’s argument that his appeal is not moot and proceed to
address the merits of his First, Second and Third Assignments of Error.
Effectiveness of Waiver of Right to Counsel
{¶ 11} Each of Ruley’s first two assignments of error is premised on his assertion
that the trial court’s inquiry into Ruley’s intention to proceed without an attorney was
insufficient to constitute an effective waiver of his right to counsel. Ruley argues both that
6 Significantly, the appellant in Nared was sentenced after the effective date of R.C. 2947.23(C), which provides that a trial court “retains jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * * at the time of sentencing or at any time thereafter.” Despite Mr. Nared’s apparent failure to seek a waiver of court costs from the trial court, this Court determined that his unpaid court costs presented an active controversy for purposes of appeal. See Nared, 2017-Ohio-6999, ¶ 6, ¶ 12 -10- his waiver of that right was invalid (First Assignment of Error) and that the trial court erred
by imposing the maximum jail sentence despite Ruley’s invalid waiver of the right to
counsel (Second Assignment of Error).
{¶ 12} The right to counsel extends to misdemeanor criminal cases that could
result in the imposition of a jail sentence. State v. Perdue, 2d Dist. Montgomery No.
23151, 2010-Ohio-565, ¶ 33, citing, among others, State v. Downie, 183 Ohio App.3d
665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 17 (7th Dist.). An appellate court conducts an
independent review to determine whether a defendant voluntarily, knowingly, and
intelligently waived his right to counsel based on the totality of the circumstances. Id. at
¶ 43.
{¶ 13} “In order to establish an effective waiver of right to counsel, the trial court
must make sufficient inquiry to determine whether defendant fully understands and
intelligently relinquishes that right.” State v. Gibson, 45 Ohio St.2d 366, 366, 345 N.E.2d
399 (1976), paragraph two of the syllabus. To be valid, a waiver of counsel “must be
made with an apprehension of the nature of the charges, the statutory offenses included
within them, the range of allowable punishments thereunder, possible defenses to the
charges and circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the whole matter.” Id. at 377, quoting Von Moltke v. Gillies, 332 U.S.
708, 723, 68 S.Ct. 316 (1948). Additionally, the defendant “should be made aware of the
dangers and disadvantages of self-representation.” Perdue at #44, quoting State v.
Gatewood, 2d Dist. Clark No. 2008 CA 64, 2009-Ohio-5610, ¶ 33.
{¶ 14} After reviewing the transcript of Ruley’s plea hearing in light of the totality of
the circumstances presented by this case, we conclude that Ruley’s waiver was effective -11- to relinquish his right to counsel. The trial judge informed Ruley of his constitutional rights,
including not only the rights to an attorney and to have an attorney appointed if unable to
afford one, but also the rights to require the State to prove beyond a reasonable doubt all
elements of the offense charged, to a speedy trial, to a jury, to testify or not testify on his
own behalf, and to subpoena and cross-examine witnesses. The judge also accurately
advised Ruley that the misdemeanor possession charge to which he was pleading guilty
was “punishable by a maximum fine of $1,000.00 and six months in jail.” In addition, the
“white paper” to which the judge referred,7 and which Ruley signed, confirmed Ruley’s
understanding of the nature and elements of the offense charged, the maximum penalty
for that offense, his applicable rights as enumerated on that document, and his knowing
and voluntary waiver of his right to counsel. Ruley also orally confirmed his understanding
of his rights and his intent to waive counsel.
{¶ 15} Ruley faults the trial court for not asking him whether he was under the
influence of drugs at the time of his plea and for not advising him that he “had a defense”
under R.C. 2925.11(B)(2)(b) to the offense charged. Neither omission undermines the
effectiveness of Ruley’s waiver of the right to counsel.
{¶ 16} Ruley does not assert that his faculties in fact were impaired during the plea
proceeding, and his statements on the record at that time belie any implication that he
may have been unable to understand that proceeding. Absent corroborating evidence, a
guilty plea will be not invalidated based merely on an appellant’s suggestion “that he may
have been under the influence of drugs or medication at the time of his plea.” See State v.
7 Ruley’s brief confirms that the “white paper” so referenced is the document captioned “Plea of Guilty or No Contest” and appearing as Document #10 in the “Summary of Docket and Journal Entries” included in the appellate record. -12- Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, #8, #15-16. Here, the record is
devoid of evidence of any possible harm resulting from the omission of a question about
the influence of drugs.
{¶ 17} As to Ruley’s other criticism of the trial court’s waiver inquiry, we conclude
below that Ruley did not have a viable defense in the form of R.C. 2925.11(B)(2)(b),
because he was not eligible for the protection provided by the statute. As a result, no
constitutional concern is implicated by the trial court’s failure to inform Ruley of that invalid
defense.
{¶ 18} Ruley’s First and Second Assignments of Error therefore are overruled.
“Qualified Individual” under R.C. 2925.11(B)(2)(b)
{¶ 19} Ruley’s Third Assignment of Error contends that the trial court’s acceptance
of his uncounseled guilty plea “was reversible error because the charge was barred from
prosecution” due to Ruley’s status as “a ‘qualified individual’ under” R.C. 2925.11(B)(2).
After reviewing the record, we conclude that Ruley was not a “qualified individual”
protected under R.C. 2925.11(B)(2)(b) from conviction for the subject drug possession
offense. That statute provides in pertinent part as follows:
(b) Subject to division (B)(2)(f) of this section, a qualified individual shall not
be arrested, charged, prosecuted, convicted, or penalized pursuant to this
chapter for a minor drug possession offense if all of the following apply:
(i) The evidence of the obtaining, possession, or use of the controlled
substance or controlled substance analog that would be the basis of
the offense was obtained as a result of the qualified individual
seeking the medical assistance or experiencing an overdose and -13- needing medical assistance.
(ii) Subject to division (B)(2)(g) of this section, within thirty days after
seeking or obtaining the medical assistance, the qualified individual
seeks and obtains a screening and receives a referral for treatment
from a community addiction services provider or a properly
credentialed addiction treatment professional.
(iii) Subject to division (B)(2)(g) of this section, the qualified individual
who obtains a screening and receives a referral for treatment under
division (B)(2)(b)(ii) of this section, upon the request of any
prosecuting attorney, submits documentation to the prosecuting
attorney that verifies that the qualified individual satisfied the
requirements of that division. The documentation shall be limited to
the date and time of the screening obtained and referral received.
(Emphasis added.)
{¶ 20} R.C. 2925.11(B)(2)(a) defines the relevant terms above as follows:
(iv) “Minor drug possession offense” means a violation of this section that is
a misdemeanor or a felony of the fifth degree.
(viii) “Qualified individual” means a person who is not on community control
or post-release control and is a person acting in good faith who seeks or
obtains medical assistance for another person who is experiencing a drug
overdose, a person who experiences a drug overdose and who seeks
medical assistance for that overdose, or a person who is the subject of -14- another person seeking or obtaining medical assistance for that overdose
as described in division (B)(2)(b) of this section.
(ix) “Seek or obtain medical assistance” includes, but is not limited to
making a 9-1-1 call, contacting in person or by telephone call an on-duty
peace officer, or transporting or presenting a person to a health care facility.
{¶ 21} This Court previously determined that failure to comply with the 30-day limit
that R.C. 2925.11(B)(2)(b)(ii) sets for a “qualified individual” to “seek[ ] and obtain[ ] a
screening and receive[ ] a referral for treatment” renders that individual ineligible for the
statute’s protection from arrest, prosecution and conviction. State v. Melms, 2d Dist.
Montgomery No. 27685, 2018-Ohio-1947. In the particular facts of Melms, we determined
that “the clear and unambiguous 30-day window set forth by the legislature” operates to
deny R.C. 2925.11(B)(2)(b) immunity even to an otherwise qualified individual who was
incarcerated throughout the 30 days after he received medical assistance for an opiate
overdose. Id. at ¶ 4, ¶ 35. Ruley, who was not in custody throughout the month following
his overdose, had no such arguable impediment to his ability to seek drug treatment.
{¶ 22} The record reflects that Ruley was prosecuted for a misdemeanor drug
offense based on evidence obtained as a consequence of medical assistance rendered
while he was experiencing an opiate overdose. While Ruley thus falls into the category of
persons whom the statute was designed to protect, see R.C. 2925.11(B)(2)(b)(i), Ruley
did not satisfy R.C. 2925.11(B)(2)(b)(ii)’s additional requirement that he “seek[ ] and
obtain[ ] a screening and receive[ ] a referral for treatment” within 30 days after “obtaining
the medical assistance” that presumably saved his life. He therefore is not immune from
prosecution under the “clear and unambiguous” language of R.C. 2925.11(B)(2)(b)(ii). -15- See Melms at ¶ 35.
{¶ 23} Without acknowledging that he failed to do so within the 30-day limit set by
statute, Ruley asserts that he advised the trial court that “he needed help with his opiate
addiction” at “both his preliminary hearing and his sentencing hearing.” While the
transcript of his May 24, 2017 sentencing hearing does record Ruley’s expression of
interest in a drug treatment option at that time, that request came more than four months
after he was revived from his January 20, 2017 overdose. The transcript of Ruley’s March
16, 2017 plea proceeding is far less clear as to whether Ruley can be said to have
conveyed an affirmative request for a referral to drug treatment on that date, but even a
request made at that time would have occurred beyond the 30-day window permitted
under R.C. 2925.11(B)(2)(b)(ii).
{¶ 24} Notwithstanding this Court’s concerns, as expressed within the Melms
opinion, about the consequences of that 30-day limit, we are bound to apply the
applicable statute as enacted. See Melms at ¶ 2, ¶ 35. Because the terms of R.C.
2925.11(B)(2)(b) do not insulate Ruley from prosecution for the minor drug possession
offense that arose from the substance found near his person while he was being treated
for a drug overdose, we conclude that the trial court did not err by accepting Ruley’s guilty
plea to that offense. His Third Assignment of Error therefore is overruled.
{¶ 25} For the foregoing reasons, Ruley’s Assignments of Error are overruled, and
the judgment of the trial court will be affirmed.
HALL, J. and TUCKER, J., concur. -16- Copies mailed to:
Jonathan B. Freeman Julia B. Peppo Hon. Gary A. Nasal