[This opinion has been published in Ohio Official Reports at
81 Ohio St.3d 582.]
THE STATE OF OHIO, APPELLEE, v. BIRD, APPELLANT.
[Cite as State v. Bird, 1998-Ohio-606.]
Criminal procedure—Where indictment, information, or complaint contains
sufficient allegations to state a felony offense and defendant pleads no
contest, court must find defendant guilty of the charged offense.
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,
662 N.E.2d 370, 373, followed.)
(No. 97-376—Submitted February 18, 1998—Decided May 6, 1998.)
APPEAL from the Court of Appeals for Franklin County, No. 96APA04-505.
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{¶ 1} On October 12, 1993, defendant-appellant, Jimmy L. Bird, was
indicted for one count of felonious assault with a deadly weapon. The charge
stemmed from an incident where appellant, who is infected with the human
immunodeficiency virus (“HIV”), spat in a police officer’s face.
{¶ 2} On January 7, 1994, appellant entered a no contest plea. At the
hearing, the prosecutor stated that the police officer was tested for the virus
immediately after this incident and the test was negative. However, doctors
recommended that the officer submit to a follow-up test in six months. According
to the prosecutor, the officer planned to schedule the test for late March or early
April. At defense counsel’s request, sentencing was postponed until April to allow
time for the completion of this test.
{¶ 3} A sentencing hearing was held on April 7, 1994. The prosecutor had
no objection to probation, since appellant had already served six months by that
time. The court rejected this recommendation, primarily due to appellant’s
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extensive criminal history. The court imposed the minimum term of incarceration
of three to fifteen years. However, the court stated that it would favorably consider
a motion for shock probation filed at the earliest time appellant became eligible.
{¶ 4} On October 11, 1994, appellant filed a motion for super shock
probation. The state filed a memorandum in support of this motion. One month
later, the motion was granted.
{¶ 5} In April 1995, the court found that appellant had violated the terms of
probation. Nevertheless, the court continued probation. However, one year later,
in April 1996, the court revoked appellant’s probation because of his two
misdemeanor convictions, his two outstanding misdemeanor charges, his discharge
from the Columbus Community Hospital for drunken belligerent behavior, and his
failure to complete community service and maintain employment.
{¶ 6} On April 23, 1996, appellant filed a pro se motion for leave to appeal
and a notice of appeal. The court of appeals granted the motion and appointed
counsel. In December 1996, the court of appeals affirmed appellant’s conviction.
{¶ 7} The cause is now before us pursuant to the allowance of a
discretionary appeal.
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Ron O’Brien, Franklin County Prosecuting Attorney, and Thomas K.
Lindsey, Assistant Prosecuting Attorney, for appellee.
Judith Stevenson, Franklin County Public Defender, and David L. Strait,
Assistant Public Defender, for appellant.
Cloppert, Portman, Sauter, Latanick & Foley and Robert L. Washburn,
urging affirmance for amici curiae, Fraternal Order of Police, Capital City Lodge
No. 9, and Ohio State Fraternal Order of Police.
Rittgers & Mengle and W. Andrew Hasselbach, urging reversal for amicus
curiae, Ohio Association of Criminal Defense Lawyers.
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January Term, 1998
Heather C. Sawyer, urging reversal for amici curiae, Lambda Legal
Defense and Education Fund, Inc., and Ohio Human Rights Bar Association.
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FRANCIS E. SWEENEY, SR., J.
{¶ 8} After his probation was revoked, appellant filed a delayed appeal
challenging the trial court’s acceptance of his no contest plea and the effectiveness
of his attorney. For the following reasons, we find appellant’s contentions
meritless. Accordingly, we affirm the judgment of the court of appeals.
{¶ 9} First, appellant finds fault with the trial court’s acceptance of his no
contest plea. Appellant contends that the indictment was insufficient to charge him
with the offense of felonious assault with a deadly weapon because it failed to
establish the existence of essential elements of the crime, i.e., that saliva is a deadly
weapon, and that appellant knowingly caused or attempted to cause the officer
physical harm. However, we find that by pleading no contest to the indictment,
appellant is foreclosed from challenging the factual merits of the underlying charge.
{¶ 10} According to Crim.R. 11(B)(2), a no contest plea is “not an
admission of defendant’s guilt, but is an admission of the truth of the facts alleged
in the indictment ….” Therefore, we have held that 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,
662
N.E.2d 370, 373.
{¶ 11} If there had been a trial, the state would have had to prove beyond a
reasonable doubt all elements of the indictment, including that appellant’s saliva is
a deadly weapon and that appellant knowingly caused or attempted to cause the
officer physical harm. However, with a no contest plea, the state was relieved of
these obligations. The state only had to allege sufficient facts to charge a violation
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for R.C. 2903.11. See Mascio, 75 Ohio St.3d at 425,
662 N.E.2d at 373. The state
fulfilled its obligations.
{¶ 12} The indictment charged that “Jimmy Lee Bird … on or about the
2nd day of October … in violation of section 2903.11 of the Revised Code, did
knowingly cause or attempt to cause physical harm to Officer Shirk by means of a
deadly weapon, to wit: spit and/or saliva ….” R.C. 2903.11(A)(2) defines
“felonious assault” as to “knowingly … [c]ause or attempt to cause physical harm
to another … by means of a deadly weapon …, as defined in section 2923.11
of the Revised Code.” “Deadly weapon” is defined in R.C. 2923.11(A) as “any
instrument, device, or thing capable of inflicting death, and designed or specially
adapted for use as a weapon, or possessed, carried, or used as a weapon.” The
indictment language mirrors the statutory language found in R.C. 2903.11. Thus,
it is sufficient to charge an offense. Crim.R. 7(B).
{¶ 13} It is unnecessary to decide whether the human immuno-deficiency
virus may be communicated through saliva and whether saliva may be considered
a deadly weapon. By pleading no contest, appellant admitted the truth of the
allegations in the indictment.
{¶ 14} Appellant also argues that he was denied effective assistance of
counsel because his attorney did not file a motion to dismiss the indictment or assert
the defense that saliva is not a deadly weapon and did not secure expert testimony
on this point.
{¶ 15} To prevail on this ground, appellant must meet the test for ineffective
assistance of counsel established in Strickland v. Washington (1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674, as applied to the plea process in Hill v. Lockhart
(1985),
474 U.S. 52,
106 S.Ct. 366,
88 L.Ed.2d 203. See State v. Xie (1992),
62
Ohio St.3d 521,
584 N.E.2d 715. First, appellant must show that counsel’s
performance was deficient. Strickland,
466 U.S. at 687,
104 S.Ct. at 2064,
80
L.Ed.2d at 693; Xie,
62 Ohio St.3d at 524,
584 N.E.2d at 717. Second, appellant
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January Term, 1998
must show that there is a reasonable probability that, but for counsel’s errors, he
would not have entered his plea. Strickland, 466 U.S. at 687,
104 S.Ct. at 2064,
80
L.Ed.2d at 693; Xie,
62 Ohio St.3d at 524,
584 N.E.2d at 717. Because of the
inherent difficulties in making the first determination, a court must indulge in a
strong presumption that the challenged action might be considered sound trial
strategy. Strickland,
466 U.S. at 689,
104 S.Ct. at 2065,
80 L.Ed.2d at 694-695.
Thus, judicial scrutiny of counsel’s performance must be highly deferential.
Id. at
689,
104 S.Ct. at 2065,
80 L.Ed.2d at 694.
{¶ 16} The record indicates that defense counsel was aware of the HIV
transmission issue. Two months prior to the trial date, defense counsel filed a
motion requesting permission to take a videotape deposition of a doctor. While the
court did not allow the videotape deposition, it did grant an order for expert witness
fees. The filing of the motion shows that defense counsel was taking affirmative
steps to develop this defense.
{¶ 17} Moreover, it is possible that defense counsel’s discovery was
sufficient to convince him that a plea bargain was the best trial tactic in the case.
The prosecutor recommended probation, which would have allowed appellant’s
immediate release. While the court did not accept the recommendation, it granted
appellant’s motion for super shock probation, which was supported by the
prosecutor. If the case had gone to trial, it is unlikely that the state would have
recommended probation or supported the super shock probation. See Alabama v.
Smith (1989), 490 U.S. 794, 802-803,
109 S.Ct. 2201, 2206,
104 L.Ed.2d 865, 875
(the state’s interests support a practice of more lenient sentences in plea cases).
Moreover, because of the identity of the victim, the state could have indicted
appellant on the more serious charge of felonious assault on a police officer.
{¶ 18} Appellant has shown neither deficient performance nor prejudice.
Under these facts, we cannot find that appellant was denied the effective assistance
of counsel.
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{¶ 19} Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, COOK and LUNDBERG STRATTON, JJ.,
concur.
PFEIFER, J., dissents.
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PFEIFER, J., dissenting.
{¶ 20} In State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 423,
662
N.E.2d 370, 372, this court stated that a plea of no contest is not an admission of
guilt, but is an admission of the truth of the facts alleged in the indictment. “The
trial court thus possesses discretion to determine whether the facts alleged in the
indictment … are sufficient to justify conviction of the offense charged.”
Id.
{¶ 21} An indictment for felonious assault must contain a description of the
“deadly weapon” used in the commission of the assault. It only follows that the
object described must, in fact, be a deadly weapon. Whether something is a deadly
weapon is at least in part a legal issue. The indictment in this case charges Bird
with attempting to harm Officer Shirk “by means of a deadly weapon, to wit: spit
and/or saliva.” By pleading no contest, Bird admitted only the facts in the
indictment, that he spat on the officer in the attempt to do him harm.
{¶ 22} What if the indictment had said Bird had assaulted Officer Shirk with
a powder puff, a water balloon, or a jelly doughnut, and Bird had pled no contest?
The fact that the indictment calls something a deadly weapon does not make it so.
That determination is up to the judge.
{¶ 23} A person who makes a plea of no contest does not become his own
judge. The trial court still has a job to do — determining whether the facts admitted
constitute a crime outlined in the indictment. The trial court in this case abused its
discretion in convicting Bird. There is nothing suggesting that the saliva of an HIVpositive person can transmit the disease to another. The trial court would
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January Term, 1998
necessarily have made the finding that saliva is a deadly weapon before convicting
Bird. Either by making the determination that saliva is a deadly weapon or by
failing to make any determination at all, the trial court abused its discretion.
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