State v. Herman , 2016 Ohio 2871 ( 2016 )

[Cite as State v. Herman, 2016-Ohio-2871.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WILLIAMS COUNTY
State of Ohio Court of Appeals No. WM-15-006
Appellee Trial Court No. TRD1502655
v.
Tyler A. Herman DECISION AND JUDGMENT
Appellant Decided: May 6, 2016
*****
Rhonda L. Fisher, Bryan City Attorney, for appellee.
Clayton J. Crates, for appellant.
*****
YARBROUGH, J.
{¶ 1} This is an accelerated appeal from the judgment of the Bryan Municipal
Court, convicting appellant, Tyler Herman, of one count of drag racing in violation of
Bryan Municipal Code Section 333.07, a misdemeanor of the first degree.1 For the
reasons that follow, we reverse.
1
The Bryan Municipal Code refers to the offense as “street racing,” but the ticket and the
court used the term “drag racing.”
I. Facts and Procedural Background
{¶ 2} On July 2, 2015, appellant appeared in the Bryan Municipal Court to be
arraigned on the charge of drag racing. Prior to the cases being called, the court played a
recorded video message of the judge giving the defendants their rights.
{¶ 3} Upon reaching the podium after his case was called, appellant signed a form
acknowledging that he was informed of the charge against him, his rights including the
right to counsel and to a jury trial, and the nature of the pleas of not guilty, guilty, no
contest, and not guilty by reason of insanity. The trial court then informed him that he
was charged with drag racing, which carries a potential fine of up to $1,000, a potential
jail sentence of up to 180 days, and a driver’s rights suspension. When asked how he
wished to plead, appellant entered a plea of guilty.
{¶ 4} The court then instructed appellant to read a waiver form located on the
podium, and to understand that by entering the plea he was waiving the rights read to him
in the recording. The court further stated that if appellant understood the rights he was
waiving, then he must initial on the four lines corresponding to the waiver of those rights.
{¶ 5} Upon receiving the written waiver form, the prosecution offered the factual
basis for the charge, following which the trial court found appellant guilty. The court
then sentenced appellant to pay a fine of $500 plus costs, and ordered a driver’s rights
suspension of 180 days.
{¶ 6} Appellant has timely appealed his judgment of conviction, asserting three
assignments of error for our review:
2.
1. The Trial Court Erred to the Prejudice of the Appellant by failing
to properly inform him of his rights prior to asking for his plea, violating
Ohio Traffic Rule 8 and failing to determine whether counsel should be
appointed violating Ohio Rules of Criminal Procedure 22 and 44.
2. Any waiver of Appellant’s rights, including his right to counsel,
was not done knowingly and intelligently and is therefore invalid.
3. The Trial Court Erred to the Prejudice of the Appellant by
Accepting a Plea when the appellant was not fully informed as to all the
consequences of the plea in violation of Traffic Rule 10.
II. Analysis
{¶ 7} In his brief, appellant addresses his three assignments of error together, thus
we will do the same.
{¶ 8} First, appellant argues that the trial court failed to comply with Traf.R. 8(B),
which states:
(B) Arraignment procedure. Arraignment shall be conducted in
open court and shall consist of reading the complaint to the defendant, or
stating to him the substance of the charge, and calling on him to plead
thereto. The defendant shall be given a copy of the complaint, or shall
acknowledge receipt thereof, before being called upon to plead and may in
open court waive the reading of the complaint.
3.
Appellant contends that the court did not determine that he received a copy of the
complaint before being called upon to enter a plea. Therefore, appellant asserts that he
was not sufficiently informed of the charge against him, particularly where the municipal
code contains no offense of “drag racing.”
{¶ 9} Upon review, we hold that the trial court complied with Traf.R. 8(B), and
that appellant was sufficiently informed of the charge against him. Pursuant to Traf.R.
3(A), “the complaint and summons shall be the ‘Ohio Uniform Traffic Ticket.’” Here,
the record contains the uniform traffic ticket, which was signed by appellant, and which
listed the offense as drag racing in violation of ordinance 333.07. In addition, the record
contains appellant’s signed “Statement of Rights and Acknowledgment” in which
appellant acknowledged that “I have been given a copy of the charge/ticket.” Finally, the
transcript reveals that the trial court told him that he was being charged with drag racing.
As to appellant’s argument that being informed of the charge of “drag racing” was not
sufficient when the name of the offense is “street racing,” we disagree. Here, the ticket
referred appellant to the proper ordinance section, and we can find no inherent confusion
between the synonymous terms “street racing” and “drag racing.” See Barberton v.
O’Connor, 17 Ohio St.3d 218, 221, 478 N.E.2d 803 (1985) (“[A] complaint prepared
pursuant to Traf.R. 3 simply needs to advise the defendant of the offense with which he is
charged, in a manner that can be readily understood by a person making a reasonable
attempt to understand.”). Therefore, we find appellant’s first argument to be without
merit.
4.
{¶ 10} In his second argument, appellant contends that the trial court failed to
comply with Traf.R. 8(D). Relatedly, in his third argument, appellant contends that any
waiver of his right to counsel was not done in accordance with Traf.R. 10 and Crim.R.
44, and thus was not made knowingly and intelligently.
{¶ 11} Traf.R. 8(D) provides,
(D) Explanation of rights. Before calling upon a defendant to
plead at arraignment the judge shall cause him to be informed and shall
determine that defendant knows and understands:
(1) That he has a right to counsel and the right to a reasonable
continuance in the proceedings to secure counsel, and, pursuant to Criminal
Rule 44, the right to have counsel assigned without cost to himself if he is
unable to employ counsel;
(2) That he has a right to bail as provided in Rule 4;
(3) That he need make no statement at any point in the proceeding;
but any statement made may be used against him;
(4) That he has, where such right exists, a right to jury trial and that
he must, in petty offense cases, make a demand for a jury pursuant to
Criminal Rule 23;
(5) That if he is convicted a record of the conviction will be sent to
the Bureau of Motor Vehicles and become part of his driving record.
5.
{¶ 12} Here, the record contains the audio recording and a transcript of the general
instructions given to all defendants, which includes an explanation of the rights
enumerated in Traf.R. 8(D), as well as the effect of the pleas of guilty, no contest, and not
guilty. We find that such a recording was a permissible method to adequately inform
appellant of those rights. See Traf.R. 8(E) (“If there are multiple defendants to be
arraigned, the judge may advise, or cause them to be advised, of their rights by general
announcement.”); Traf.R. 10(D) (“In misdemeanor cases involving petty offenses, * * *
the court may refuse to accept a plea of guilty or no contest and shall not accept such
pleas without first informing the defendant of the effect of the plea of guilty, no contest,
and not guilty. This information may be presented by general orientation or
pronouncement.”).
{¶ 13} However, in addition to informing appellant of his rights, the trial court
also “shall determine that defendant knows and understands” those rights. Traf.R. 8(D).
This requires an individualized inquiry. State v. Donkers, 170 Ohio App.3d 509, 2007-
Ohio-1557, 867 N.E.2d 903, ¶ 42 (11th Dist.); State v. Baratko, 9th Dist. Medina No.
1654, 1988 WL 40390, *1 (Apr. 27, 1988). Similarly, when waiving counsel, “[A]
meaningful dialogue between the trial court and a defendant is required whenever the
possibility of incarceration exists and a written waiver of counsel does not satisfy such
requirement.” State v. Groner, 7th Dist. Mahoning No. 96 C.A. 144, 1998 WL 158856,
*5 (Mar. 31, 1998), citing Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 218, 479 N.E.2d
309 (8th Dist.1984).
6.
{¶ 14} In this case, no dialogue between the court and appellant occurred.
Therefore, we hold that the trial court failed to comply with the requirement of Traf.R.
8(D) to determine that appellant knew and understood the rights he was waiving,
particularly the right to counsel. Accordingly, appellant’s assignments of error are well-
taken.
III. Conclusion
{¶ 15} For the foregoing reasons, the judgment of the Bryan Municipal Court is
reversed and vacated. This matter is remanded to the trial court for a new arraignment
and proceedings in accordance with this decision. The state is ordered to pay the costs 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.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, 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.sconet.state.oh.us/rod/newpdf/?source=6.
7.