State v. Roepke

[Cite as State v. Roepke, 2011-Ohio-6369.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 10 MA 138

)

PLAINTIFF-APPELLEE )

)

VS. ) OPINION

)

GLENDA JEAN ROEPKE )

)

DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the County Court

No. 5, of Mahoning County, Ohio

Case No. 09CR00297CNF

JUDGMENT: Affirmed in Part. Reversed in Part.

Sentence Vacated. Remanded.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains

Mahoning County Prosecutor

Atty. Ralph M. Rivera

Assistant Prosecuting Attorney

21 West Boardman Street, 6th Floor

Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Donald P. Leone

4800 Market Street, Suite D

Youngstown, Ohio 44512

JUDGES:

Hon. Cheryl L. Waite

Hon. Gene Donofrio

Hon. Joseph J. Vukovich

Dated: December 7, 2011

[Cite as State v. Roepke, 2011-Ohio-6369.]

WAITE, P.J.

{1} Appellant Glenda Jean Roepke was notified in 2003 that a sanitary

sewer line was accessible to her property and that she was required to abandon her

septic system and connect to the sewer line. From 2003 to the present, Appellant

has failed to connect to the sanitary sewer line. On June 25, 2010 Appellant pleaded

guilty to violating Ohio Health Code due to this failure. Her indictment, plea, and

sentence all misidentified the charged violation as a first degree misdemeanor. On

appeal Appellant argues her plea was invalid due to the trial court’s failure to comply

with Crim.R. 44 and Crim.R. 11, and that her sentence should be vacated. In

Appellant’s argument she misapplies and overstates the law regarding the plea

requirements in her second degree misdemeanor offense. Nevertheless, due to an

incomplete and contradictory record we cannot fully evaluate whether the trial court

complied with Crim.R. 11 and Appellant must be allowed to withdraw her plea for this

reason. Additionally, Appellant was sentenced for a first degree misdemeanor when

she committed a second degree misdemeanor offense. Appellant, who appeared pro

se, was also sentenced to a period of incarceration, to be served in a day reporting

program, when pursuant to Crim.R. 44(B) no term of incarceration could be imposed.

For these reasons her plea and sentence are vacated and the matter remanded for

further proceedings.

PROCEDURAL HISTORY AND HISTORY OF THE CASE

{2} From July 1, 2003, Appellant Glenda Jean Roepke continues to be in

violation of Administrative Code Section 3701-29-02(M) which provides: “Whenever

a sanitary sewage system becomes accessible to the property, a household sewage

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disposal system shall be abandoned and the house sewer directly connected to the

sewerage system.” This Administrative Code Section was adopted pursuant to the

powers of the Public Health Council under R.C. 3701.34. Failure to comply with the

health code is a violation of R.C. 3701.352, which states that “[n]o person shall

violate any rule the public health council, director of health, or department of health

adopts or any order the director or department of health issues under this chapter to

prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism

event.” These violations constitute second degree misdemeanors under R.C.

3701.99(C). In this matter, the state’s complaint, filed on June 3, 2009, misidentified

the violation as an M-1.

{3} The initial pre-trial was held August 5, 2009. A subsequent status

conference was rescheduled four times until the matter was finally set for Appellant to

enter into a plea agreement on June 25, 2010. On that date, Appellant signed a form

acknowledging that she had appeared before the court and was advised of the

nature of the charge, her right to counsel, her Crim.R. 44 right to appointed counsel,

her right to remain silent, and her right to a speedy trial. Appellant waived her right to

a speedy trial. Appellant met with the prosecutor and signed a Crim.R. 11 form. The

form indicates that Appellant appeared with counsel, however the transcript of the

hearing and subsequent motion to withdraw her plea clearly indicate that she

appeared pro se.

{4} Appellant’s plea form reflects that she entered her guilty plea to a

charge of failure to comply with the health code in violation of R.C. 3701.352, and

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that she waived the introduction of evidence. She also acknowledges that the court

ordered a $250.00 fine, incarceration for 180 days (150 of which were suspended)

and twelve months of non-reporting probation. The thirty (30) days of Appellant’s

sentence that were not suspended were to be served in the Mahoning County

Sheriff’s Office Day Reporting Program. Appellant was also ordered to tie into the

sanitary sewer within sixty (60) days. This form specified the rights Appellant waived

by agreeing to enter a plea: trial by jury, trial to the judge, right to proof beyond a

reasonable doubt, right to counsel and to appointed counsel, right to compel

witnesses to appear and testify, right to confront and examine witnesses, right to

testify or to remain silent. The form acknowledging waiver of rights on plea was

signed by both the trial judge and Appellant. The opposite side of the form specifying

the plea and sentence were signed by both the prosecutor and Appellant. The form

was journalized on June 25, 2010. The docket summary information entered by court

staff reflects that Appellant entered a “no contest” plea, as opposed to a guilty plea,

and that Appellant was actually found guilty by the court.

{5} On July 16, 2010, through counsel, Appellant sought to withdraw her

plea pursuant to Crim.R. 11(C)(2), alleging that she had not made a knowing,

intelligent, and voluntary plea and waiver of her right to counsel. The motion was set

for hearing on July 20, 2010. The prosecutor filed in opposition, asserting that

Crim.R. 11(C)(2) applied only to felony pleas, not misdemeanors, and asked that the

motion be denied. The hearing on the motion was reset for August 6, 2010. On

August 6, Appellant filed a brief in support of the motion to withdraw her plea. On

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that same day, the trial court held its hearing on the motion to withdraw, denied the

motion, and stayed Appellant’s sentence pending the outcome of her appeal.

Appellant, through counsel, had earlier filed a timely notice of appeal on July 26,

2010.

Assignment of Error Number One

{6} “THAT THE DEFENDANT/APPELLANT IN THIS CASE DID NOT

MAKE A KNOWINGLY, INTELLIGENTLY, AND VOLUNTARY WAIVER OF

COUNSEL BECAUSE TRIAL COURT DID NOT IN OPEN COURT QUESTION

DEFENDANT/APPELLANT AS TO WHETHER DEFENDANT UNDERSTOOD HER

RIGHT TO COUNSEL AND WAS WAIVING THAT RIGHT, KNOWINGLY,

INTELLIGENTLY AND VOLUNTARILY REQUIRED BY RULE 44(A) OHIO RULES

OF CRIMINAL PROCEDURE TO THE PREJUDICE OF BY THE TRIAL COURT

DENYING DEFENDANT/APPELLANT RIGHT TO COUNSEL AND MAKING THE

PLEA CONTRARY TO LAW SUBJECT TO REVERSAL BY THIS COURT.” [SIC]

{7} Appellant argues in her first assignment of error that her plea was

contrary to law and subject to reversal because she was not informed of her right to

counsel and was not questioned in open court concerning her waiver of this right

pursuant to Crim.R. 44(A). Criminal Rule 44(A) requires that “[w]here a defendant

charged with a serious offense is unable to obtain counsel, counsel shall be assigned

to represent him at ever stage of the proceedings* * *.” A “serious offense” is defined

by Crim.R. 2(C) as, “any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months.” Appellant was

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charged with a violation of R.C. 3701.352 which, by statute, is a second degree

misdemeanor, although in the criminal complaint and subsequent state filings it is

misidentified as a first degree misdemeanor. The maximum penalty for a first degree

misdemeanor is six months (180 days). The maximum penalty for a second degree

misdemeanor is ninety days. R.C. 2929.24 (A)(1)-(2). Both offenses, Appellant’s

actual second degree misdemeanor and the erroneous first degree misdemeanor

referenced by the state, are petty offenses under the criminal rules and are not

subject to the representation requirements of Crim.R. 44(A) (a “petty offense” is

defined by Crim.R. 2(D) as “a misdemeanor other than a serious offense”).

{8} Sections (B) and (C) of Crim.R. 44 however, do apply to petty offenses.

The rule provides in pertinent part:

{9} “(B) Counsel in petty offenses. Where a defendant charged with a

petty offense is unable to obtain counsel, the court may assign counsel to represent

him. When a defendant charged with a petty offense is unable to obtain counsel, no

sentence of confinement may be imposed upon him, unless after being fully advised

by the court, he knowingly, intelligently, and voluntarily waives assignment of

counsel.

{10} “(C) Waiver of counsel. Waiver of counsel shall be in open court and

the advice and waiver shall be recorded as provided in Rule 22. In addition, in

serious offense cases the waiver shall be in writing.”

{11} Pursuant to Crim.R. 44(B) and (C), whether or not a defendant is

represented will control the nature of the penalty that may be imposed on that

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defendant, unless there is knowing, intelligent and voluntary waiver in the record of

the proceedings made by a defendant who was informed in open court of his or her

right to counsel. While Crim.R. 44 does control the type of penalty that may be

imposed on an unrepresented defendant charged with a petty offense, it does not

alter or qualify the ability of such a defendant to enter a guilty plea or a no contest

plea, nor does it in any way condition the trial court’s ability to accept such a plea.

{12} Although Appellant did sign a form that discussed her right to an

attorney and to have an attorney appointed if she could not afford one, the form

indicates only that she was waiving her speedy trial rights and does not include an

explicit or implicit waiver of her right to counsel. However, the fact that there is no

explicit waiver of counsel does not ordinarily, impact, as Appellant argues, the validity

of her plea. In the matter at bar, Appellant was charged with a petty offense, not a

serious offense. She appeared pro se and entered either a plea of no contest

(according to the docket) or a guilty plea (according to the forms on record). This

seeming confusion is irrelevant to this issue, because in whatever form she entered

her plea would ordinarily be valid. Nothing in Crim.R. 44 voids or invalidates her

ability to enter a plea.

{13} Appellant also argues that the trial court was required by Crim.R. 44 to

discuss possible defenses and mitigating circumstances when warning Appellant of

the dangers of self-representation. Criminal Rule 44 contains no such requirement in

connection with petty offenses. Violations of the regulation concerned in this matter

are petty offenses; the regulation itself governs public health and safety, and carries

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strict liability. DeMoise v. Dowell (1984), 10 Ohio St.3d 92, 461 N.E.2d 1286, Clark v.

Greene Cnty. Combined Health Dist., 108 Ohio St.3d 427, 2006-Ohio-1326, 844

N.E.2d 330. An inability to pay is not a defense for non-compliance. State v. Boyer,

6th Dist. No. WD 09-045, 2010-Ohio-935 (The Sixth District Court of Appeals

affirmed a $10,000.00 fine for failure to connect during the original 120-day period,

and during the extension allowed by the trial court, despite the defendant’s assertion

that she had attempted to connect, but was unable to pay for the necessary work.).

Even if Crim.R. 44 contained the type of requirement Appellant claims, it appears

there are no defenses or mitigating circumstances the trial court could have

discussed. The trial court satisfied the applicable portions of Crim.R. 44. The

additional requirements advanced by Appellant are only appropriate to more serious

offenses. Appellant’s first assignment of error is overruled.

Assignment of Error Number Two

{14} “THAT DEFENDANT WAIVER OF RIGHT TO TRIAL AND HER PLEA

OF NO CONTEST WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY

BECAUSE THE TRIAL COURT DID NOT ADVISE DEFENDANT/APPELLANT OF

HER RIGHTS PURSUANT TO RULE 11(D) OHIO RULES OF CRIMINAL

PROCEDURE IN OPEN COURT AS REQUIRED BY LAW, TO THE PREJUDICE OF

DEFENDANT/APPELLANT AND MAKING HER PLEAS CONTRARY TO LAW AND

SUBJECT TO REVERSAL BY THIS COURT.” [SIC]

{15} While Appellant states in her second assignment of error that her plea

was contrary to law and subject to reversal because she was not advised of her

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rights pursuant to Crim.R. 11(D), the body of her argument instead focuses on

Crim.R. 11(C). Appellant’s reliance on either section of Crim.R. 11 is in error.

Section (C) addresses pleas in felony cases only and (D) addresses misdemeanor

cases involving serious offenses. As earlier discussed, Appellant’s violation

constitutes a petty offense. Hence, only section (E) of Crim.R. 11 is relevant. This

section provides: “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.”

{16} On June 25, 2010, Appellant received and signed a form containing a

notice which specified the rights she was foregoing by entering her plea. On the

record in open court the trial court judge discussed with her the penalties that would

result from her plea. Although the discussion between the court and Appellant is

limited to the nature of the penalty imposed, it is very apparent that Appellant does

not dispute her violation of the statute, understands the penalties to be imposed

following her plea, and is primarily concerned with the cost of compliance. The two

waiver forms signed by Appellant further establish the nature of the rights Appellant is

giving up when she enters her plea and the extent of her right to counsel. These

forms in combination with the transcript reflect that the court was in at least

substantive compliance with Crim.R. 11.

{17} The record does, however, reflect some confusion. In her forms it

appears that Appellant is entering a guilty plea, but the docket sheet summary for

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June 25, 2010 states “no contest found guilty.” It is not apparent how this confusion

was created. Appellant has seized on the summary entry on the docket sheet and

suggests that this alleged difference affects the validity of her plea. (Appellant’s

Reply Brf., p. 2.) This is not the case. As the Supreme Court of Ohio notes:

“[d]ockets and journals are distinct records kept by clerks. See R.C. 2303.12 (‘The

clerk of the court of common pleas shall keep at least four books[:] * * * the

appearance docket, trial docket * * *, journal, and execution docket.')” State ex rel.

White v. Junkin (1997), 80 Ohio St. 3d 335, 337. A municipal court clerk is similarly

charged: “The clerk shall do all of the following: file and safely keep all journals,

records, books, and papers belonging or appertaining to the court; record the

proceedings of the court; perform all other duties that the judges of the court may

prescribe * * * [t]he clerk shall prepare and maintain a general index, a docket, and

other records that the court, by rule requires, all of which shall be the public records

of the court. In the docket, the clerk shall enter, at the time of the commencement of

an action, the names of the parties in full, the names of the counsel, and the nature

of the proceedings. Under proper dates, the clerk shall note the filing of the

complaint, issuing of summons or other process, returns, and any subsequent

pleadings. The clerk also shall enter all reports, verdicts, orders, judgments, and

proceedings of the court, clearly specifying the relief granted or orders made in each

action.” R.C. 1901.31(E). Ohio Supreme Court Superintendence Rule 26.05(B) also

governs municipal court record keeping, and requires that municipal courts “maintain

an index, docket, journal and case files.”

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{18} The general index created by the clerk, and the “docket [are] not the

same as a journal.” Junkin at 337. The docket and index are created and

maintained by the clerk. Sup.R. 26.05(A) and (C). In contrast, “[a] court speaks

through its journals and an entry is effective only when it has been journalized. Civ.

R. 58 and Crim. R. 32 (B). To journalize a decision means that certain formal

requirements have been met, i.e., the decision is reduced to writing, it is signed by a

judge, and it is filed with the clerk so that it may become a part of the permanent

record of the court.” State v. Ellington (1987), 36 Ohio App.3d 76, 77-78. Ohio

Supreme Court Superintendence Rule 26. (B)(4) defines a court’s journal as “a

verbatim record of every order or judgment of a court.” The journalization

requirements are not empty formalities, where a court issues a decision verbally or

even in writing, but it has not been journalized, the verbal judgment is not final. State

v. Ginocchio (1987), 38 Ohio App.3d 105, 526 N.E.2d 1366. Similarly, a court will

lose jurisdiction if it fails to journalize its decision within the period prescribed by

statute. Ellington, paragraph two of the syllabus.

{19} In the current matter, the June 25, 2010 entry in the trial court’s journal

reflects a guilty plea. No writing signed by the judge, filed with the clerk and

journalized in the record of this proceeding indicates that Appellant entered a no

contest plea. While the docket and the last of six index entries for June 25, 2010

state that Appellant entered a plea of no contest and was found guilty, the docket

sheet is not the court’s journal. The court’s journal contains no contradiction with

regard to the plea. The journal entry is consistent with the transcript of the

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proceedings and does not reflect confusion as to the entry of the plea on the part of

the court.

{20} However, while Appellant’s plea would ordinarily be valid and nothing in

the record suggests non-compliance with the criminal rules, nothing in the record

reflects an explicit discussion of the meaning of a “guilty” as opposed to a “no

contest” or a “not guilty” plea, and the ramifications of those pleas. The record

reflects that Appellant signed forms stating that she was represented by counsel in

these proceedings, while the transcript clearly shows she acted pro se. Her

indictment misidentified her violation as a first degree misdemeanor. The court and

prosecutor thought Appellant’s violation amounted to a first degree misdemeanor,

when the charge was actually a second degree misdemeanor. Appellant was

informed of her possible sentence, but it was for the higher degree of misdemeanor

and not the actual offense she admitted. Coupled with the error in consistently

reflecting the actual plea Appellant entered, this record does reflect a multitude of

deficiencies. While none of these, taken alone, clearly support Appellant’s argument

that her plea was not entered knowingly, we cannot state that, based on this record,

the plea was so entered. Hence, acting under an abundance of caution and

considering the series of discrepancies and contradictions in this record, we cannot

say the plea was entered in a knowing, intelligent and voluntary fashion.

Accordingly, we must overrule in part and sustain in part Appellant’s second

assignment of error and remand the matter to allow Appellant to withdraw her plea.

Assignment of Error Number Three

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{21} “THAT THE SENTENCE OF THE TRIAL COURT WAS CONTRARY

TO LAW LAW BECAUSE THE MAXIMUM SENTENCE TO THE CRIME CHARGED

WAS A MINOR MISDEMEANOR NOT A MISDEMEANOR OF THE FIRST DEGREE

AS THE COURT SENTENCED HER. THE DEFENDANT/APPELLANT WAS

CHARGED WITH VIOLATION OF R.C. 3701.352 VIOLATION OF OHIO HEALTH

CODE BY NOT ABANDING HER SEPTIC SYSTEM AND TIE IN TO THE COUNTY

SEWER SYSTEM. THE PENALTY FOR THAT VIOLATION IS DEFEINDED IN R.C.

3701.99(A) WHICH IS DEFINED AS A MINOR MISDEMEANOR, TO THE

PREJUDCICE OF DEFENDANT/APPELLANT AND SUBJECT TO REVERSAL BY

THIS COURT.” [SIC]

{22} While Appellant’s plea may be withdrawn on remand, by her own

admission she has done nothing to correct her violation and acknowledges that she

remains in violation of law. Hence, discussion of the penalties inherent to a finding of

guilt remains necessary. Appellant and the state agree that the sentence imposed by

the trial court is clearly and convincingly contrary to law, although they disagree as to

the nature of the misdemeanor to which Appellant entered a plea. As earlier

discussed, Appellant was charged in the criminal complaint that initiated this matter

on June 3, 2009 with a violation of R.C. 3701.352. The violation was dated July,

2003, and continues to the present. The penalties for violations of R.C. 3701.352

were increased pursuant to legislation passed on October 15, 2003 and effective on

February 12, 2004. The fact that Appellant’s conduct in violation of the statute was

initiated prior to the increase in penalty does not alter the fact that it continued after

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the enactment of increased penalties and that she was charged in 2009 with that

continuing offense. As she admits she continues to be in violation of the law, this

record reflects that she would be liable for the enhanced penalty.

{23} Appellant was sentenced to 180 days of incarceration, 150 of which

were suspended. Thirty days were to be served by attendance in the Mahoning

County Day Program. This is both contrary to R.C. 2929.24, which limits the penalty

to be imposed for a second degree misdemeanor to ninety days, and Crim.R. 44,

which states that where the defendant is unrepresented, incarceration may not be

imposed unless the defendant explicitly waives his or her right to counsel. Because

this record does not reflect such an explicit waiver, no term of incarceration of any

kind, could be imposed. Probation, financial, and other penalties that may be

imposed pursuant to R.C. 2929.24, R.C. 2929.28 or any other statutory provision are

within the court’s discretion to include, but they must be consistent with penalties

allowed for a second degree misdemeanor.

{24} Appellant’s third assignment of error is overruled with regard to the

nature of the offense and sustained with regard to the sentence. As we are

remanding this matter to allow Appellant to withdraw her plea, the sentence is hereby

vacated and the matter likewise remanded for resentencing.

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CONCLUSION

{25} Appellant’s first assignment of error is overruled and her second and

third assignments are overruled in part and sustained in part. Appellant’s sentence is

vacated and she is permitted to withdraw her plea. This matter is remanded to the

trial court. Any future sentence, if any, must be compliant with the parameters for a

second degree misdemeanor, and Crim.R. 44.

Donofrio, J., concurs.

Vukovich, J., concurs.