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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

NO CONTEST PLEAS (064)

Also see Guilty Pleas/Motion to withdraw guilty plea; Sentencing; Plea Bargaining.

 

Basics

Felony cases

Plea hearings

Misdemeanor and traffic cases

Preservation of issues for appeal

Other issues

 

Criminal Rule 11 -- Pleas; Rights Upon Pleas.

Traffic Rule 10 -- Pleas; Rights Upon Pleas.

 

R.C. 2937.07 -- Action on pleas of "guilty" and "no contest" in misdemeanor cases. [Compare Crim. R. 11(B).

Statute imposes additional duty that the court obtain an explanation of the circumstances of the offense.]

R.C. 2943.031 -- Advice as to possible deportation, exclusion or denial of naturalization upon guilty or no

contest pleas.

Basics

State v. Hoerig, 181 Ohio App. 3d 86, 2009-Ohio-541 – Custodian of a pit bull pled no contest to failure to obtain liability insurance on a vicious dog. (1) Complaint was insufficient to support conviction on a no contest plea as it only identified the charging statute and stated the maximum penalty. It failed to include a written statement of the facts constituting the offense charged. (2) Ordinarily the defendant would have lost the ability to make this challenge once sentence had been imposed, because Crim. R. 12(C)(2) provides challenges may be made at any time while the action is pending. But the defendant raised the issue in a motion in arrest of judgment prior to the filing of a notice of appeal. The first appeal was dismissed because the judgment entry failed to state the offense on which conviction was entered. Thus the case remained pending until a proper judgment entry was filed.

State v. Mendell, 191 Ohio App. 3d 325, 2010-Ohio-6107 – In a weapon under disability prosecution the no contest plea did not preserve for appeal the defendant’s immunity from prosecution claim based on 2923.23(A) where he did not obtain a ruling on the motion before the plea was entered. Issue cannot be raised as a matter of first impression on appeal.

State v. Singleton, 169 Ohio App. 3d 585, 2006-Ohio-6314 -- A no contest plea must actually be tendered, and not just implied. Dickering with a visiting judge in a code case over necessary improvements to property ran ahead of the formalities required for entry of a valid plea, making the sentence unenforceable. Furthermore, punishing the defendant for contempt for noncompliance was invalid as there was no writ, process, order, judgement or command that he could be said to have violated.

State v. Puterbaugh (2001), 142 Ohio App. 3d 185 -- The essence of the no contest plea is that the defendant cannot be heard in defense. Any statement by him must be considered in mitigation of sentence. However, the factual proffer by the prosecutor must establish an offense. Defendant told officer that the person sought on a warrant was not in her house, but allowed search which resulted in that person's arrest. While the false information element of obstructing official business was established, the "hampers or impedes a public official in the performance of his lawful duties" element was not.

State v. Cooper, 168 Ohio App. 3d 378, 2006-Ohio-4004 -- ¶6: "Unlike with respect to a misdemeanor offense to which a plea of no contest is entered, the court is not required to have before it a statement of the particular conduct constituting the alleged offense when it accepts a defendant's plea of no contest to a felony charge. However, if the prosecutor presents a statement of facts and those facts positively contradict the felony charged in the indictment by negating an element essential to commission of the offense alleged. the court cannot make a finding of guilt on the basis of the charges alleged in the indictment."

State v. V.F.W. Post 431, Montgomery App. No. 19892, 2004-Ohio-3566 -- A no contest plea waives the right to present an affirmative defense.

Garfield Heights v. Skerl (1999), 135 Ohio App. 3d 586 -- When a complaint is based on possession and possession is not the basis for an offense, a court errs by accepting a no contest plea. Defendant is also entitled to the return of a $29.95 K-Mart bow and arrow he had bought as a present for his son, seized by an overzealous park ranger.

State v. Kuhner, 154 Ohio App. 3d 457, 2003-Ohio-4631, ¶ 13 -- "A trial judge is within the bounds of his discretion in refusing a no-contest plea based on procedural considerations in the particular case." But a court may not adopt a blanket policy of refusing no-contest pleas.

State v. Mathis, Butler App. No. CA94-06-127, 2003-Ohio-4613 -- Prosecutor cross-examined the defendant regarding his attempt to enter a no contest plea, which had been rejected by the court. Reversed on the basis of Crim. R. 11(G), which provides that if a court refuses to accept a no contest plea, that plea shall not "be admissible in evidence or the subject of comment by the prosecuting attorney or court."

State v. Stewart, Montgomery App. No. 19971, 2004-Ohio-3103 -- Prosecutor made no proffer of facts following a no contest plea. The defendant's statement did not include admissions covering the elements of menacing. Remedy for conviction on insufficient evidence is discharge. Also see State v. Wellington, Mahoning App. No. 03 MA 199, 2004-Ohio-6807.

State v. Gilbo (1994), 96 Ohio App. 3d 332, 337 -- "The plea of no contest constitutes an admission, not of guilt, but of the truth of the facts alleged in the indictment, information or complaint. Crim. R. 11(B)(2). In order to obtain a conviction of a defendant who has plead no contest, the state must offer an explanation of the circumstances to support the charge. This explanation is sufficient if it supports all the essential elements of the offense. Chagrin Falls v. Katelanos (1988), 54 Ohio App. 3d 157, 159...(T)he court may consider an argument by the defendant that the facts as admitted do not constitute the offense charged...However, by pleading no contest, the defendant waives his right to present additional affirmative factual allegations to prove that he was not guilty." Also see State v. Murphy (1996), 116 Ohio App. 3d 41.

State v. Pernell (1976), 47 Ohio App. 2d 261 -- (1) When a no contest plea is entered, the state is not required to prove each element of the offense beyond a reasonable doubt. (2) A no contest plea allows the court to find the defendant guilty, but unlike a guilty plea, is not a complete admission of guilt. (3) In felony cases, the same procedures apply to the taking of both guilty and no contest pleas.

State, ex rel. Sawyer, v. O'Connor (1978), 54 Ohio St. 2d 380 -- Court may find a defendant guilty of a lesser-included offense pursuant to a no contest plea. Also see State, ex rel. Leis, v. Gusweiler (1981), 65 Ohio St. 2d 58.

State v. Rader (1988), 55 Ohio App. 3d 102 -- When the indictment or complaint contains sufficient allegations to state an offense, and the defendant pleads no contest to the offense, the trial court may not find the defendant guilty of a lesser included offense. Though the prosecutor won the issue on appeal, the error could not be corrected because of double jeopardy.

State v. Cohen (1978), 60 Ohio App. 2d 182 -- When the facts submitted to the court upon a no contest plea support conviction of a lesser included offense, but not of the offense charged, it is error to find the defendant guilty of the greater offense.

State v. Thorpe (1983), 9 Ohio App. 3d 1 -- In addition to finding the defendant guilty of a lesser included offense, two of three judges hold court may also dismiss a felony charge on a no contest plea if the proffer of evidence is insufficient.

State v. Carter (1997), 124 Ohio App. 3d 423, 424 -- An "across-the-board policy of not accepting no-contest pleas, without particularized consideration of the facts and circumstances of each case, is an abuse of discretion."

State v. Harper (1988), 47 Ohio App. 3d 109 -- Headnote 1: "In deciding whether to accept a no contest plea, a trial court abuses its discretion by considering such inappropriate matters as plea bargaining and defendant's expressed desire to preserve his right to appeal; by repeatedly advising defendant that any plea agreement must be based upon a guilty plea, the court adversely affects the voluntariness of defendant's eventual decision to plead guilty."

In re Green (1982), 4 Ohio App. 3d 196 -- Juvenile rules do not provide for no contest pleas. Disposition of a case on a no contest plea would be ill advised since the court found the plea not to be an unequivocal admission of guilt and remanded the case for trial, without addressing the suppression issue advanced on appeal.

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Felony cases

State v. Mullen, 191 Ohio App. 3d 788, 2011-Ohio-37 – Defendant pleaded no contest and received consecutive sentences. Subsequently he sought to withdraw his pleas. The motion was denied but the court conducted a resentencing hearing because postrelease control had not been addressed in court at the first sentencing hearing. The appeal comes from the resentencing hearing. (1) Though a count within an indictment must be sufficient may be sufficient to charge an offense, a court shall not enter a guilty finding if the factual proffer in support of the plea negates the existence of an essential element. With respect to the felonious assault count at issue here, the prosecutor’s proffer omitted an essential element, but did not negate it, so reversal is not necessary. (2) With respect to two counts of abduction, the indictment failed to allege the defendant either created a risk of physical harm to the victims, or placed them in fear. Having admitted the facts alleged in the indictment, but not pleading guilty, the defendant may not be found guilty of abduction, but may be found guilty of unlawful restraint. The scope of such resentencing hearings is now restricted by State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238.

State v. Baker, 170 Ohio App. 3d 331, 2006-Ohio-7085 -- A plea is not knowing, intelligent and voluntary when the court misleads the defendant as to the sentence he will receive. Defendant pled no contest to aggravated vehicular assault. The plea exchange plainly indicated the judge was receptive to the recommended sentence of three years, with judicial release and alcohol treatment after one year. But a five year sentence was imposed including three years of mandatory time.

State v. Bird (1998), 81 Ohio St. 3d 582 -- Syllabus: "Where the indictment, information, or complaint contains sufficient allegations to state a felony offense and the defendant pleads no contest, the court must find the defendant guilty of the charged offense. (State ex rel. Stern v. Mascio [1996], 75 Ohio St. 3d 422, 425...followed.)" Court fails to decide whether spit or saliva probably carrying the AIDS virus is a deadly weapon. Defendant's no contest plea accepted this characterization as alleged in the indictment.

State v. Kutz (1993), 87 Ohio App. 3d 329, 337 -- "Following a no contest plea in a felony case, 'the prosecution does not have the obligation to present evidence proving the defendant guilty beyond a reasonable doubt'...The trial court needs only to examine the facts alleged in the indictment to determine whether a defendant is guilty of the crime charged. The only exception to this rule is when a representation is made to the court, where such representation would negate a factual representation of the indictment." Citing State v. Thorpe (1983), 9 Ohio App. 3d 1, 2.

State v. Brock (1996), 110 Ohio App. 3d 656 -- After jury trial had begun, defendant in a death penalty case entered a no contest plea as to the guilt phase, but tried penalty phase to the jury, which recommended death. It was error for a single judge to receive the no contest plea as a three judge panel was required. All further proceedings were a nullity.

State v. Post (1987), 32 Ohio St. 3d 380, 392-393 -- When a no contest plea is entered to aggravated murder with specifications, the requirements of Crim. R. 11(C)(3) are satisfied but a proffer of facts by the prosecutor and an opportunity for the defense to respond. Also see State v. Muenick (1985), 26 Ohio App. 3d 3.

State v. Mapes (1985), 19 Ohio St. 3d 108 -- Paragraph one of the syllabus: "Crim. R. 11(B)(2) and Evid. R. 410 do not preclude admission of a conviction entered upon a no contest plea to prove a prior murder specification under R.C. 2929.04(A)(5)."

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Plea hearings

State v. Hackathorn, Ashtabula App. No. 2004-A-0008, 2004-Ohio-6694 -- Sua sponte reversal as the court failed to advise defendant of his right to plead no contest. Based on the defendant's responses, the court should have referred the unrepresented defendant for a competency hearing, but was not under a duty to do so.

State v. Klein, Franklin App. No. 03AP-945, 2004-Ohio-4557 -- In a felony OMVI prosecution the defense stipulated authenticity of former judgment entries, but claimed two of three were defective. A no contest plea requires an admission of the facts alleged in the complaint or indictment. It may not be "customized" to accommodate determination of a disputed issue in this manner.

State v. Myers, Marion App. No. 9-02-65, 2003-Ohio-2936 -- A finding of guilty upon entry of a no contest plea must be supported by an explanation of circumstances provided by the state covering the elements of the offense. Whether the complaint was sufficient was not an issue in this case as it was not read into the record. While there had been a suppression hearing, it was conducted before a different judge.

Cleveland v. Lupica, Cuyahoga App. No. 83912, 2004-Ohio-5221 -- Appellant intended to challenge the "forfeiture" of her pit bull, but collective confusion as to what charges were being pled to leads to sua sponte reversal.

State v. Mehozonek (1983), 8 Ohio App. 3d 271 -- When the facts offered in support of a felony charge negate an essential element of the crime, it is an abuse of discretion to accept a no contest plea.

State ex rel. Stern v. Mascio (1996), 75 Ohio St. 3d 422 -- Writ of prohibition granted to prevent judge from conducting a hearing on an affirmative defense asserted in conjunction with a no contest plea. At p. 424: "Although the trial court retains discretion to consider a defendant's contention that the admitted facts do not constitute the charged offense, the defendant who pleads no contest waives the right to present additional affirmative factual allegations to prove that he is not guilty of the charged offense."

State v. Jenkins (January 18, 1994), Franklin Co. App. No. 93AP-859, unreported (1994 Opinions 57) -- While the explanation of circumstances offered at the time a no contest plea is entered must contain a statement of facts covering all of the elements of the offense, the prosecution is not required to produce documentary evidence. Also see State v. Young (1988), 37 Ohio St. 3d 249, 255, fn. 1.

State v. Moore (1996), 111 Ohio App. 3d 833 -- No contest plea should not have been accepted in a serious offense case where the court failed to independently advise the defendant of the effect of his plea, including the minimum and maximum penalties, the possibility of consecutive sentences, and the waiver of Fifth and Sixth Amendment rights, and further failed to ascertain that the plea was entered intelligently and voluntarily. Also see Garfield Heights v. Mancini (1997), 121 Ohio App. 3d 155.

State v. Mascaro (1991), 81 Ohio App. 3d 214 -- Conviction reversed where court, in taking a no contest plea, did not advise the defendant of his right to counsel and as to other consequences of conviction.

State v. Hays (1982), 2 Ohio App. 3d 376 -- Failure to advise the defendant of the effect of no contest plea warrants reversal, even though defendant was represented by counsel. Also see Cleveland v. Technisort (1985), 20 Ohio App. 3d 139.

State v. Walton (1977), 50 Ohio App. 2d 386 -- Failure to advise defendant that she was not eligible for probation not prejudicial error where facts of the case had not been known to the court before the no contest plea was accepted.

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Misdemeanor and traffic cases

State v. Watkins, 99 Ohio St. 3d 12, 2003-Ohio-2419 -- The Traffic Rules apply to non-felony OMVI cases. ¶ 28: "Crim. R. 11(C) sets forth how a judge should explain those rights to a defendant. However, there are no such constitutionally mandated informational requirements for defendants charged with misdemeanors. The protections that the Criminal Rules provide to felony defendants should not be read into the Ohio Traffic Rules, which deal only with misdemeanor offenses." Syllabus: "When a defendant charged with a petty misdemeanor traffic offense pleads guilty or no contest, the trial court complies with Traf. R. 10(D) by informing the defendant of the information contained in Traf. R. 10(B)."

State v. Oklata, 156 Ohio App. 3d 123, 2004-Ohio-569 -- Though State v. Watkins, 99 Ohio St. 3d 13, 2003-Ohio-2419 may reduce the court's obligations when taking a no contest plea in a traffic case, the failure to inform the defendant of the effect of his no contest plea, as outlined in Traffic Rule 10(B)(2), requires reversal.

State v. Herbst, Lucas App. No. L-03-1238, 2004-Ohio-3157 -- A no contest plea may not be the basis for a finding of guilty without an explanation of circumstances. Footnote observes that the trial court also failed to advise on rights in accordance with Traffic Rule 10(D).

State v. Shugars, 165 Ohio App. 3d 379, 2006-Ohio-718 -- Defendant pled no contest to a housing code offense for which the culpable mental state was declared to be recklessness. Since the complaint failed to allege an essential element, and there was nothing in evidence establishing recklessness, there was insufficient evidence to support conviction. Even a guilty plea does not waive insufficiency of the complaint. Since the complaint did not state an offense, double jeopardy would not bar refiling.

Chagrin Falls v. Katelanos (1988), 54 Ohio App. 3d 157 -- (1) Before accepting a no contest plea, the court must advise the defendant of its consequences. (2) Before entering a conviction on a no contest plea the court must call for an explanation of the circumstances of the offense. (3) For such explanation to support a guilty finding, it must support all of the essential elements of the offense. (4) If documents are relied upon, the record must so indicate.

State v. Joseph (1988), 44 Ohio App. 3d 212 -- Headnote: "Crim. R. 11(E) requires that in a misdemeanor case the record must affirmatively demonstrate that a plea of no contest was entered knowingly, intelligently and voluntarily. The trial court must explain the effect of a no contest plea and its duty is not discharged by merely handing the defendant a document entitled 'waiver of rights' which is a list of the rights waived by the plea. Also see Toledo v. Chiaverini (1983), 11 Ohio App. 3d 43; State v. Luhrs (1990), 69 Ohio App. 3d 731.

Cuyahoga Falls v. Bowers (1984), 9 Ohio St. 3d 148 -- Syllabus: "The provision in R.C. 2937.07 requiring an explanation of circumstances following a plea of no contest has not been superseded by the enactment of Crim. R. 11 because the statutory provision confers a substantive right." Also see Columbus v. Good (August 22, 1991), Franklin Co. App. No. 91AP-175, unreported (1991 Opinions 4111, 4114).

State v. Waddell (1995), 71 Ohio St. 3d 630 -- Syllabus: "In the case of a no contest plea to a misdemeanor offense, a court may make its finding from the explanation of circumstances by the state. The court is required to consider the accused's statement only where the plea is guilty. (R.C. 2937.07, construed.)

State v. Fish (1995), 104 Ohio App. 3d 236 -- Syllabus by the Court: "Once the defendant has properly demanded a jury trial in a petty offense case, the trial court cannot make a finding of guilt after accepting a no-contest plea without a written jury waiver, signed by the defendant and made part of the record." Also see discussion of factors to be considered in determining a motion to withdraw a no contest plea.

Chardon v. Moyer (1986), 33 Ohio App. 3d 154 -- When the court permits the withdrawal of a no contest plea in a petty offense case, any previous waiver of the right to jury trial is withdrawn as well.

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Preservation of issues for appeal

State v. Lewis, 164 Ohio App. 3d 318, 2005-Ohio-5921 -- Defendant filed what was styled as a "motion to suppress/dismiss in limine" challenging the territorial jurisdiction of a Fairfield County deputy acting in Franklin County. The court did not rule on the motion but accepted a no contest plea mistakenly believing the issue could be pursued in the court of appeals. Reversed as the plea was not knowing and voluntary.

State v. Wood (2001), 141 Ohio App. 3d 634, 637 -- No contest plea was entered after the court ruled against the defense on a claim of privilege. Held to be an evidentiary issue capable of determination without trial of the general issue, and thus appealable.

State v. Palicki (1994), 97 Ohio App. 3d 177 -- A no contest plea preserves for appeal the court's ruling on a notion to suppress evidence.

State v. Parsley (1994), 93 Ohio App. 3d 788 -- A no contest plea does not waive appellate review of a non-constitutional evidentiary issue. Also see State v. Ulis (1992), 65 Ohio St. 3d 83, 85.

State v. Engle (1996), 74 Ohio St. 3d 525 -- No contest plea was entered after court overruled Rule 29 motion for acquittal and motions in limine. It was the mistaken understanding of the judge, prosecutor and defense attorney that those rulings could be appealed following a no contest plea. Plea held not to have been entered knowingly or intelligently.

State v. Amburgey (1993), 86 Ohio App. 3d 635 -- No contest plea was improperly accepted where it was based on the mistaken belief that it would preserve for appellate review an adverse ruling on a motion in limine. Also see State v. Watson (August 27, 1981), Franklin Co. App. No. 80AP-880, unreported (1981 Opinions 2657).

State v. Luna (1994), 96 Ohio App. 3d 207 -- A no contest plea preserves the issue of the sufficiency of an indictment for appeal.

State v. Bowsher (1996), 116 Ohio App. 3d 170 -- Police officer was charged with theft in office based on taking funds from a benefit organization. No contest plea preserved the issue whether there was the necessary nexus between his public office as a police officer and the theft.

State v. Owens (1974), 44 Ohio App. 2d 428 -- Headnote 1: "The taking of sworn testimony upon the plea of 'no contest' more than satisfies the requirements of R.C. 2937.07, in regard to an 'explanation of circumstances,' and the taking of such sworn testimony does not constitute error."

State, ex rel. Sawyer, v. O'Connor (1978), 54 Ohio St. 2d 380 -- Mandamus does not afford a prosecutor a remedy where the outcome of the hearing on a no contest plea is allegedly erroneous. Since jeopardy attaches when the court accepts the plea, granting the writ would be a vain act, as the defendant could not subsequently be found guilty. Also see State, ex rel. Leis, v. Gusweiler (1981), 65 Ohio St. 2d 58.

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Other issues

State v. Peek (1996), 110 Ohio App. 3d 165 -- Defendant entered a no contest plea to receiving stolen property, specifically a motor vehicle. Judge found him guilty of unauthorized use of a motor vehicle. Defendant appealed. Held that no contest plea placed defendant in jeopardy, and double jeopardy bars reprosecution for RSP. Further held that unauthorized use is not a lesser included offense, leading to reversal of that conviction. However, defendant may still be prosecuted for unauthorized use.

Columbus v. Wolfinger (February 8, 1996), Franklin Co. App. No. 95APC07-859, unreported (1996 Opinions 439) -- Pursuant to a plea bargain, defendant pleaded guilty to a defective complaint, which failed to allege a culpable mental state. Since by appealing, and by prevailing rendering the plea void, the defendant did not perform his part of the agreement, upon remand, the original charges may be reinstated.

State v. Posta (1988), 47 Ohio App. 3d 144 -- Headnote: "Even though a presentence motion to withdraw a no contest plea is to be freely granted, a denial of the motion may not be reversed by an appellate court without a showing of an abuse of discretion by the trial court."

State v. Gillard (1988), 40 Ohio St. 3d 226, 233-134 -- A witness, other than the defendant, may be asked about a previous offense disposed of through a no contest plea.

State v. Mintz (1991), 74 Ohio App. 3d 62 -- Defendant was placed in a diversion program for those charged with domestic violence. This entailed entering a no contest plea, waiving his right to a speedy trial and agreeing to have finding entered at a later date. Court found entry of no contest plea alone did not amount to waiver of speedy trial rights and waiver of speedy trial was void when defendant was removed from program.

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