Opinion
L-22-1172
07-14-2023
State of Ohio Appellee v. Christopher Hair Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, Evy M. Jarrett and Brandon J. Allen, Assistant Prosecuting Attorneys, for appellee. Anthony J. Richardson, II, for appellant.
Trial Court No. CR0202001671
Julia R. Bates, Lucas County Prosecuting Attorney, Evy M. Jarrett and Brandon J. Allen, Assistant Prosecuting Attorneys, for appellee.
Anthony J. Richardson, II, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Following a guilty plea, the defendant-appellant, Christopher Hair, was convicted of criminal trespass, a misdemeanor of the first degree, by the Lucas County Court of Common Pleas. On appeal, Hair claims that the court committed reversible error by failing to call for an "explanation of circumstances" under R.C. 2937.07, before finding him guilty. We affirm.
I. Background
{¶ 2} Hair was originally indicted on a single count of menacing by stalking, in violation of R.C. 2903.211(A)(1) and (B)(2)(c), a fourth-degree felony. At his June 16, 2020 arraignment, the state alleged that Hair engaged in a "pattern of conduct" that included "making multiple contacts with his ex-girlfriend" and showing up "unannounced [and] uninvited" to her home and place of employment. Hair pled not guilty and was released on a supervised "own recognizance" bond that included electronic monitoring. The bond restrictions were later removed to allow Hair to attend training sessions with the Army Reserve.
{¶ 3} Over the next two years, the trial date was repeatedly postponed for a variety of reasons, mostly to accommodate Hair, who requested continuances to consider various plea offers or because he was out of town with his unit.
{¶ 4} When the case was called for trial on June 28, 2022, the trial court inquired whether Hair intended to accept "the offer that [was] extended by the State." Hair told the court that "numerous * * * brigade people" told him that a guilty plea "will still pose an issue," and therefore, Hair preferred to "tak[e] it to trial." Hair's counsel relayed his opinion that it would be in Hair's best interest to resolve the matter "short of trial," which Hair was "obviously rejecting." A discussion ensued, revealing an intent by all sides to achieve a result that did "not affect[] [Hair's] career long term." For its part, the trial court instructed that Hair would have the ability to withdraw his plea, consistent with Crim.R. 32.1, in the event a conviction adversely impacted his ability to deploy, "even if it's two years delayed." Following a short break, the state indicated that the parties had reached an agreement whereby Hair would plead guilty to an "added" count of criminal trespass, in violation of R.C. 2911.21(A)(5) and (D)(1), a misdemeanor of the first degree (Count 2), and the state would seek dismissal of the felony count alleged in Count 1.
{¶ 5} Following the plea colloquy, the court accepted Hair's guilty plea, entered a finding of guilt, and convicted him. The trial court imposed a jail of term of 90 days, which it suspended, plus a three-year term of probation. The judgment entry specifies that the probation term is non-supervisory and non-reporting, so as not to conflict with Hair's need to travel. Hair was also ordered to have no direct or indirect contact with the victim and to pay various costs.
{¶ 6} Hair appealed and assigns a single assignment of error for our review:
ASSIGNED ERROR: THE TRIAL COURT COMMITTED ERROR BY FINDING APPELLANT GUILTY WITHOUT CALLING FOR A BASIS TO SUPPORT THE MISDEMEANOR CRIME.
II. Law and Analysis
{¶ 7} Hair claims that the trial court erred in entering a finding of guilt without first calling for an "explanation of circumstances," in violation of R.C. 2937.07. Hair seeks an order of remand and an instruction that the case against him be dismissed.
{¶ 8} R.C. 2937.07 ("Action on pleas of 'guilty' and 'no contest' in misdemeanor cases") provides,
If the offense is a misdemeanor and the accused pleads guilty to the offense, the court or magistrate shall receive and enter the plea unless the court or magistrate believes that it was made through fraud, collusion, or mistake. If the court or magistrate believes that it was made through fraud, collusion, or mistake, the court or magistrate shall enter a plea of not guilty and set the matter for trial pursuant to Chapter 2938. of the Revised Code. Upon receiving a plea of guilty, the court or magistrate shall call for an explanation of the circumstances of the offense from the affiant or complainant or the affiant's or complainant's representatives unless the offense to which the accused is pleading is a minor misdemeanor in which case the court or magistrate is not required to call for an explanation of the circumstances of the offense. After hearing the explanation of circumstances, together with any statement of the accused or after receiving the plea of guilty if an explanation of the circumstances of the offense is not required, the court or magistrate shall proceed to pronounce the sentence or shall continue the matter for the purpose of imposing the sentence. (Emphasis added.)
A plea to a misdemeanor offense of "no contest" or words of similar import shall constitute an admission of the truth of the facts alleged in the complaint and that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense. If the offense to which the accused is entering a plea of "no contest" is a minor misdemeanor, the judge or magistrate is not required to call for an explanation of the circumstances of the offense, and the judge or magistrate may base a finding on the facts alleged in the complaint. If a finding of guilty is made, the judge or magistrate shall impose the sentence or continue the case for sentencing accordingly. A plea of "no contest" or words of similar import shall not be construed as an admission of any fact at issue in the criminal charge in any subsequent civil or criminal action or proceeding.
{¶ 9} "R.C. 2937.07 contains two paragraphs-the first dealing with the procedure required by the court before accepting a guilty plea in misdemeanor cases, and the second detailing the necessary procedure before the court accepts a no contest plea in misdemeanor cases." (Emphasis added.) State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995) (Considering an earlier version of R.C. 2937.07). In this case, Hair pled guilty to the offense, and therefore, the first paragraph of the statue applies.
{¶ 10} In his brief, Hair relies exclusively on cases applying the second paragraph of R.C. 2937.07, i.e. cases involving no contest pleas. Within the context of R.C. 2937.07, however, no contest cases "have no relevance to cases in which an accused entered a guilty plea." State v. Ostrander, 6th Dist. Fulton No. F-10-011, 2011-Ohio-3495, ¶ 23, citing State v. Russell, 7th Dist. Mahoning No. 09MA156, 2011-Ohio-1181, ¶ 14. As explained by the court in Russell, "[t]here is a fundamental difference between pleading guilty and pleading no contest because a guilty plea constitutes an actual admission of guilt, whereas a plea of no contest [does not]." Id. at ¶ 12. That is, "[b]y entering a plea of guilty, the accused is not simply stating that he did the discreet acts described in the indictment; he is admitting guilt of a substantive crime." United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). By contrast, a no contest plea is "a stipulation that the court may make a finding of guilt." (Emphasis added.) Russell at ¶ 12. Therefore, a plea of no contest "requires the trial court to make a finding of guilt based on some type of evidence, at least in a misdemeanor case." Id. at ¶ 12, citing State v. Knaff, 128 Ohio St.3d 90, 93, 713 N.E.2d 1112 (1988). Without an explanation of circumstances in a no contest case, "there [would be] no facts on which to find the defendant guilty." Russell, citing Cuyahoga Falls v. Bowers, 9 Ohio St.3d 148, 156, 459 N.E.2d 532 (1984). In Bowers, the Supreme Court of Ohio found that R.C. 2937.07 confers a "substantive right" and therefore, "a no contest plea may not be the basis for a finding of guilty without an explanation of circumstances." Id. at 150. But, the explanation of circumstances "has been deemed a substantive right only in situations where a defendant pleads 'no contest,'" and not where a defendant pleads guilty. (Emphasis added.) State v. Jones, 11th Dist. Ashtabula No. 2015-A-0068, 2016-Ohio-6987, ¶ 32. In short, the authority relied upon by Hair is inapposite to his case.
{¶ 11} Separately, Hair also cites a line of cases that, in addition to being inapplicable, have been expressly overturned by the Ohio Supreme Court. In his brief, Hair contends that-assuming his assignment of error has merit-his conviction must be overturned because "a trial court's failure to comply with R.C. 2937.07 results in insufficient evidence * * * [and] as such, double jeopardy attaches." (Appellant's brief at 7, quoting State v. Lloyd, 6th Dist. Lucas No. L-15-1035, 2016-Ohio-331). In State v. Giordano, 155 Ohio St.3d 470, 2018-Ohio-5024, 122 N.E.2d 151, the Ohio Supreme Court expressly abrogated that part of State v. Lloyd (and cases like it) that had found double jeopardy attaches to cases where the trial court failed to call for an explanation of circumstances before accepting a no-contest plea. The court found that "a reversal of a conviction based on a no-contest plea for failure to comply with the explanation-of-circumstances requirement is not equivalent to an acquittal based on the insufficiency of the evidence, as would trigger double-jeopardy protections." Id. at paragraph one of the syllabus and footnote 1.
{¶ 12} Turning to the merits of Hair's assignment of error, he claims that "the trial court erred by finding [him] guilty without calling for [an explanation of circumstances] to support the misdemeanor crime."
{¶ 13} Again, R.C. 2937.07 provides that "[u]pon receiving a plea of guilty, the court * * * shall call for an explanation of the circumstances of the offense from the affiant or complainant * * * unless the offense to which the accused is pleading is a minor misdemeanor." In this case, Hair pled guilty to criminal trespass, which is classified as a first-degree misdemeanor, not a minor misdemeanor. See R.C. 2911.21(A)(5) and (D)(1) and 2901.02(G). Therefore, an explanation of circumstances was "mandated by R.C. 2937.07." Russell at ¶ 7.
{¶ 14} The state bears the burden of ensuring that an explanation of circumstances appears on the record before a conviction is entered. State v. Holley, 2d Dist. Greene No. 2019-CA-44, 2020-Ohio-5104, ¶ 20 citing State v. Schornack, 2d Dist. Greene No. 2014-CA-59, 2015-Ohio-3383, ¶ 8 ("[I]t is "immaterial who actually states the explanation on the record [but] the record must affirmatively demonstrate that a sufficient explanation of circumstances was made.").
{¶ 15} Although R.C. 2937.07 does not define the phrase "explanation of circumstances," we noted in Ostrander that,
"At a minimum, it [requires] evidence sufficient to demonstrate the accused's criminal liability on the standards imposed by R.C. 2901.21
['Requirements for criminal liability'] with respect to the offense alleged." State v. Keplinger, 2d Dist. Greene No. 98-CA-24, 1998WL864837 (Nov. 13, 1998). In that regard, when a court recites the charges against an accused, that recitation follows the terms of the statute under which the accused was charged, and the accused agrees to the truth of the charges and pleads guilty, a sufficient explanation of circumstances supports the finding of guilty.Ostrander, 6th Dist. Fulton No. F-10-011, 2011-Ohio-3495, at ¶ 24.
{¶ 16} In Ostrander, the defendant pled guilty to two first-degree misdemeanors, theft and possession of criminal tools. After the plea colloquy, the trial court reviewed the charges against the defendant, mirroring the wording of each statute and reciting the time, place, and specific conduct that the state alleged defendant had engaged in. The defendant agreed that the allegations against him were "true," and the trial court found him guilty. Id. at ¶ 7-12. On appeal, the defendant argued that the trial court's failure to call for an explanation of circumstances before accepting his guilty plea was reversible error. We denied the appeal, finding that the exchange constituted a "sufficient explanation of circumstances" to support the finding of guilt. Id. at ¶ 24.
{¶ 17} Ostrander cited State v. Russell, 7th Dist. Mahoning No. 09MA156, 2011-Ohio-1181 and State v. Jones, 11th Dist. Ashtabula No. 2015-A-0068, 2016-Ohio-6987, two of the very few cases pertaining to R.C. 2937.07 and guilty pleas. The cases are of limited value, however, because the defendants, in both cases, failed to appeal the underlying judgment of conviction. As a result, the courts found that the defendants were collaterally estopped from arguing that the trial courts' failure to call for an explanation of circumstances amounted to reversible error. See Russell at ¶ 11 ("Appellant's failure to file an appeal of his conviction bars him, on the basis of res judicata, from challenging any issues that could have been raised on direct appeal."); Jones at ¶ 33 ("[A]ny argument relating to the court's failure to strictly adhere to the requirements of R.C. 2937.07 must be raised on direct appeal."). Nonetheless, in dicta from Jones, the court suggested that "[e]ven though the [trial] court did not require the state to give an explanation, appellant's plea of guilty renders any error harmless as a matter of law." Id. at ¶ 32. The record in Jones indicated that the trial court and the defendant discussed "how the charges arose" and the court remarked that the defendant's version of events was consistent with the police report. Id. at ¶ 31.
{¶ 18} Here, Hair was charged with criminal trespass on the same day he pled guilty. According to the record, Hair had the "opportunity to review" the new charge in writing, and both the state and Hair's counsel "entertained" questions from him about it. (6/28/2022 Tr. at 8). Hair was charged by way of a Bill of Information, a copy of which he acknowledged receiving, and he "waive[d] its reading in open court, [and] waive[d] any defect as to time, place, [and] manner of service." (6/28/2022 Tr. at 8-9). According to the Bill of Information, "on or about the 6th day of May, 2020, in Lucas County, Ohio, without privilege to do so, [Hair] did knowingly enter or remain on a crititical [sic] infrastructure facility, in violation of R.C. 2911.21(A)(5) of the Ohio Revised Code, Criminal Trespass, being a misdemeanor of the first degree, herein referred to as the Second count in this case." The trial court asked Hair to confirm whether he understood that he was "entering a guilty plea to the information that's been filed in Count 2 today, that's criminal trespass, in violation of R.C. 2911.21(A)(5) and (D)(1). That's a misdemeanor of the first degree." Hair confirmed, "Yes, I'm being found guilty." Hair also acknowledged his understanding that, by entering a guilty plea he was "making a complete admission that [he] committed the allegations that are contained in this information in Count 2."
{¶ 19} Although it is "immaterial who actually states the explanation on the record * * * the record must affirmatively demonstrate that a sufficient explanation of circumstances was made." (Citation omitted.) Holley, 2d Dist. Greene No. 2019-CA-44, 2020-Ohio-5104, at ¶ 21. Upon review, we find that Hair's acknowledgment of the charge set forth in the Bill of Information and the recitation between him and the trial court establishing his understanding of the charge and his plea of guilty to it were sufficient to demonstrate Hair's criminal liability. Importantly, we also find that there is nothing in the record to suggest that Hair did not understand the underlying facts before he pled guilty, and Hair has not claimed otherwise. Indeed, "a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case." State v. Ellis, 2d Dist. Montgomery No. 27520, 2017-Ohio-8104, ¶ 6, quoting Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), fn. 2. Accordingly, under the circumstances of this case, we find that the explanation-of-circumstances requirement of R.C. 2937.07 was satisfied. Therefore, Hair's assignment of error is found not well-taken.
{¶ 20} Finally, Hair seeks review of "arguments" that he made in his motion to dismiss and notice of appeal. Hair requests that we comb through the record in search of his unidentified "arguments," notwithstanding his belief that he likely "waived the right to assert [them] on appeal." Under App.R. 12(A)(1)(b), an appellate court must determine an appeal based on the assignments of error set forth in the briefs. See, e.g., State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 103. An appellate court rules on assignments of error only. We do not address mere arguments, much less unidentified or self-described meritless arguments. Id. Because Hair did not assign as error the purported arguments, there is nothing for us to address.
III. Conclusion
{¶ 21} The record indicates that the explanation of circumstances provided in this case was sufficient under R.C. 2937.07. Accordingly, Hair's assignment of error is found not well-taken, and the June 30, 2022 judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to App.R. 24, Hair is ordered to pay the costs of this appeal.
Judgment affirmed.
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., CHRISTINE E. MAYLE, J., GENE A. ZMUDA, J. CONCUR.