Toledo v. Wyley

2017 Ohio 6921

• Court: Ohio Court of Appeals
• Decided: July 21, 2017
• Docket: L-16-1235
• Status: Published

Opinion

[Cite as Toledo v. Wyley, 2017-Ohio-6921.]

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

State of Ohio/City of Toledo Court of Appeals No. L-16-1235

Appellee Trial Court No. CRB-16-06436

v.

Cyrussolon Wyley DECISION AND JUDGMENT

Appellant Decided: July 21, 2017

*****

David Toska, City of Toledo Chief Prosecutor, and Henry Schaefer, Assistant Prosecutor, for appellee.

Emil G. Gravelle III, for appellant.

MAYLE, J.

{¶ 1} Defendant-appellant, Cyrussolon Wyley, filed this accelerated appeal from

the July 7, 2016 judgment of the Toledo Municipal Court convicting him of menacing, a

violation of Toledo Municipal Code 537.06(A), and sentencing him to 30 days in jail. He assigns the following error for our review: “The Trial Court failed to comply with

Crim.R. 11(E) in any way, to the prejudice of Appellant.”1

Wyley entered a plea of no contest to the menacing charge, but he claims that

before accepting his plea, the trial court failed to inform him of the effect of his plea,

thereby violating Crim.R. 11(E). He contends that a trial court commits prejudicial error

when it fails to comply with Crim.R. 11(E), and that, as a result, he is entitled to

withdraw his plea. The city concedes error and agrees that Wyley is entitled to withdraw

his plea on remand.

Crim.R. 11(E) provides that “[i]n misdemeanor cases involving petty offenses the

court may refuse to accept a plea of guilty or no contest, and shall not accept such plea

without first informing the defendant of the effect of the pleas of guilty, no contest, and

not guilty.” Under Crim.R. 2(D), a petty offense is “a misdemeanor other than a serious

offense.” A serious offense as defined in Crim.R. 2(C) is “any misdemeanor for which

the penalty prescribed by law includes confinement for more than six months.” Here, the

offense at issue is a fourth-degree misdemeanor punishable by up to 30 days in jail.

Toledo Municipal Code 501.99(a).

As we recognized in State v. Lloyd, 2016-Ohio-331, 58 N.E.3d 520, ¶ 10 (6th

Dist.), “where there is absolutely no compliance with [Crim.R. 11(E)], prejudicial error is

1 In his brief, Wyley also argues that the trial court violated Crim.R. 32(A)(1), however, he failed to assign error in this aspect of the court’s judgment. We, therefore, decline to consider this argument. See State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017- Ohio-4339, ¶ 103.

2. presumed and the defendant is entitled to withdraw his or her plea on remand.” We have

reviewed the July 7, 2016 transcript of the plea hearing in this case, and we agree that the

trial court wholly failed to comply with Crim.R. 11(E). Appellant’s assignment of error

is found well-taken.

Accordingly we reverse the trial court’s July 7, 2016 judgment, and remand

this matter to the trial court. The city is ordered to pay the costs of this appeal under

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.

Thomas J. Osowik, J. _______________________________ JUDGE James D. Jensen, P.J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE

3.