For years, it has been the general practice of many of the municipal courts in Cuyahoga County and throughout Ohio to accept pleas of “no contest” from defendant’s looking to resolve their cases. Generally, this practice was followed by the court inquiring whether the defendant was stipulate to a finding of fact or a finding of guilt and then proceeding forward with entering a finding of guilt and imposing sentence. However, for serious misdemeanor cases which include drunk driving or “OVI” this practice is not enough and actually requires the resulting conviction to be vacated and replaced with a finding of “not guilty.”
This conclusion has been reached by appellate courts throughout Ohio and has recently been set forth in Cuyahoga County’s Eighth District Court of Appeals in its holdings in Berea v. Moorer, (Cuyahoga Cty., 2016), 2016-Ohio-3452 and Cleveland v. Wynn, (Cuyahoga Cty., 2016), 2016-Ohio-5417.
Under R.C. 2937.07, the Ohio statute governing no contest pleas in misdemeanor cases, a plea of no contest is an admission of the truth of the facts alleged in the complaint. Unlike with a plea of guilty, when a defendant enters a plea of no contest the judge or magistrate must actually make a finding that the defendant is either guilty or not guilty of the offense. A finding of guilt must be based upon the reading of facts into the record and the trial court offering an explanation of the circumstances based upon the facts supporting a finding of guilt for the offense.
The explanation of circumstances is actually a substantive right of the defendant. Therefore, stipulating to a finding of fact or a finding of guilt is not sufficient. (There is some indication that a specific waiver of an explanation of circumstances might satisfy to comply with this rule. See, Moorer, at ¶ 13). There must actually be an explanation of facts placed on the record before the trial court can make a finding of guilty or not guilty with a guilty finding actually being supported by an explanation of circumstances.
The Ohio Supreme Court has previously addressed this issue in Cuyahoga Falls v. Bowers, (1984), 9 Ohio St.3d 148, 150. The Court said that an explanation of circumstances is required so the trial court does not simply make a perfunctory finding of guilt. It is not whether the facts and documents which are available to the court support a conviction but whether the facts and evidence are actually put on the record to allow the court to make a finding of guilt based thereon.
Where this really gets interesting is under the recent decisions in Moorer and Wynn the Court of Appeals found that jeopardy attaches to convictions made as a result of a no contest plea where no explanation of circumstances was supporting a finding of guilt was made. The error is substantial and actually results in a failure of the trial court to establish facts sufficient to support a conviction. As a result of the lack of sufficient evidence to support a conviction, the trial court was actually required to find the defendant not guilty of the offense and a reviewing court must vacate the conviction and order that the trial court enter an acquittal. As double jeopardy attaches the prosecution is precluded from having a second chance at prosecute the offense.
What does this mean? On its face, it appears that anyone who has been convicted of a serious misdemeanor offense after entering a plea of no contest and stipulating to a finding of fact or a finding of guilt could have their conviction(s) reversed where no facts establishing the offense were put on the record prior to the court finding them guilty. While this might seem like a heavy burden to meet it actually encompasses a great number of misdemeanor convictions in Northeast Ohio over the last ten plus years.
Procedurally, the question is whether the court of appeals with jurisdiction over that case will grant leave to file a delayed appeal to challenge the conviction. In most cases the appeal of a conviction must be filed within thirty days of judgment. However, an appeals court is permitted to allow the filing of delayed appeals under Rule 5 of the Ohio Rules of Appellate Procedure. Alternatively, there might be an interest in exploring if there is any type of post-conviction motion which might get the matter back before the trial court to be reconsidered.
If a conviction of this type, including those for drinking and driving, does get in front of an appellate court there is a good chance the conviction can be reversed thus removing it from the individual’s record. For offenses, such as drinking and driving this could have serious benefits such as lowering the cost of automotive insurance or reinstating an individual’s driver’s license. For other offenses, such as drinking and driving or domestic violence which have enhanced penalties or degrees of offense for more than one conviction a reversal of the prior conviction could result in an additional offense carrying the penalties associated with a first-time offender. This is extremely beneficial especially for offenses of violence, drinking and driving or others which cannot otherwise be sealed or expunged from an individual’s record.
I recently raised this issue before the Eighth District Court of Appeals in the matter of Cleveland v. Catchings-EL, (Cuyahoga Cty., 2017), 2017-Ohio-189. The Catchings-EL, case was actually filed prior to the rulings in Moorer and Wynn being released. However, I did raise the issue in the initial brief and was able to cite to the new law in the reply brief. The Appeals Court ultimately reversed Mr. Catchings-El’s conviction for OVI where in addition to not offering an explanation of facts and circumstances on the record prior to conviction the trial court actually failed to take any change of plea at all. Therefore, the conviction was reversed before even getting to the issue of the explanation of circumstances.
These recent holdings offer an extreme benefit to individuals who have previously been convicted with a serious misdemeanor offense including OVI/drinking and driving to explore having their convictions vacated. As the rules of double jeopardy apply these individuals must be acquitted of the offense which cannot be re-prosecuted thereafter. These cases are facts specific and require the review of prior trial court entries and transcripts followed by substantial briefing to the applicable court
If you or someone you know believes they have been convicted of an OVI/DUI, domestic violence or other serious misdemeanor offense in Ohio after a plea of no contest under these circumstances please do not hesitate to contact my office at (216) 456-2488 Ext. 3 for a free initial consultation.