[Cite as State v. Travis,
2012-Ohio-1466.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-11-19
v.
MISTY D. TRAVIS, OPINION
DEFENDANT-APPELLANT.
Appeal from Marysville Municipal Court
Trial Court No. TRD 1103297 B
Judgment Affirmed
Date of Decision: April 2, 2012
APPEARANCES:
Alison Boggs for Appellant
Tim Aslaner for Appellee
Case No. 14-11-19
SHAW, P.J.
{¶1} Defendant-Appellant, Misty D. Travis (“Travis”), appeals the August
31, 2011 judgment of the Marysville Municipal Court of Union County, Ohio,
sentencing Travis upon her plea of guilty.
{¶2} On August 9, 2011, Travis was pulled over for a speeding violation.
After her license was checked through LEADS, Travis was found to be under
three open suspensions: a failure to report an accident suspension, a security
suspension and a non-compliance suspension. Travis was subsequently charged
with Driving Under Suspension for Failure to File an Accident Report in violation
of R.C. 4510.11(A) and Driving Under an FRA Suspension in violation of R.C.
4510.16(A), both unclassified misdemeanors.
{¶3} At arraignment on August 16, 2011 Travis pled no contest to the
charges. After the facts were read into the record by the prosecution, the court
asked Travis if there was anything she wanted the court to consider in passing
judgment or sentence. Travis said that the Bureau of Motor Vehicles (“BMV”)
was sending her a document showing that notice of her suspension had been sent
to the wrong address and because of this, she was not notified of her license
suspension. Upon hearing this statement, the court asked if Travis still wished to
plead no contest. Travis decided that she did not, and changed her plea to not
guilty. Accordingly, the court set the matter for a bench trial on August 31, 2011.
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{¶4} On August 25, 2011, Travis applied for a public defender. Her
application was granted and Lisa Music entered an appearance as counsel on
August 30, 2011. On August 31, 2011, the day of the scheduled bench trial,
Travis entered a negotiated plea of guilty to Driving Under an FRA suspension in
violation of R.C. 4510.16(A) with the remaining charge to be dismissed.
{¶5} The court advised Travis of the rights she was waiving in tendering
her guilty plea, accepted the plea and then proceeded to sentencing. The court
followed the recommended sentence the parties had prepared in the pre-trial
report, sentencing Travis to 500 hours of community service, a $600 fine and court
costs, and a 30 day license suspension. The community service and $300 of the
fine were suspended on the condition that Travis enroll in the home monitoring
program for ten days.
{¶6} This appeal followed and Travis asserts two assignments of error for
our review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT FAILED TO COMPLY WITH CRIMINAL RULE
11 WHEN IT ACCEPTED APPELLANT’S GUILTY PLEA.
ASSIGNMENT OF ERROR II
DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY
INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION
OF HIS [sic] SIXTH AND FOURTEENTH AMENDMENT
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RIGHTS, AS WELL AS HIS [sic] RIGHTS UNDER SECTION
10, ARTICLE I, OF THE OHIO CONSTITUTION.
First Assignment of Error
{¶7} In her first assignment of error, Travis contends that the court failed to
comply with Ohio Criminal Rule 11(E) when the court accepted her guilty plea.
We note at the outset that the Ohio Supreme Court has held that a trial court’s
acceptance of a defendant’s guilty plea to a petty misdemeanor traffic offense is
governed by Traffic Rule 10(D) rather than Criminal Rule 11(E). State v. Watkins,
99 Ohio St.3d 12,
788 N.E.2d 635,
2003-Ohio-2419, syllabus. Functionally it
makes little difference to our analysis, as Crim.R. 11(E) and Traf.R. 10(D) are
largely analogous. “In fact, Crim.R. 11(E), which applies to nontraffic
misdemeanor cases involving petty offenses, is identical in all relevant aspects to
Traf.R. 10(D).” Watkins at ¶ 15. Nevertheless, Travis’s crimes do fall under the
Traffic Rule’s classification as petty offenses and would therefore be governed by
Traf.R. 10(D).1
{¶8} Traffic Rule 10(D) reads,
[i]n misdemeanor cases involving petty offenses, except those
processed in a traffic violations bureau, 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
1
Traffic Rule 2(D) defines “petty offense” as one “for which the penalty prescribed by law includes
confinement for six months or less.” In this case, Travis was charged with two unclassified misdemeanors,
the maximum penalties being 500 hours of community service and up to a $1000 fine, making them
governed by Traf.R. 10(D).
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Case No. 14-11-19
plea of guilty, no contest, and not guilty. This information may
be presented by general orientation or pronouncement.
{¶9} The Ohio Supreme Court has held that a trial court is in compliance
with Traf.R. 10(D) “by informing the defendant of the information contained in
Traf.R. 10(B).” Watkins at syllabus. Traffic Rule 10(B) reads,
(B) Effect of guilty or no contest pleas
With reference to the offense or offenses to which the plea is
entered:
(1) The plea of guilty is a complete admission of the
defendant’s guilt.
(2) The plea of no contest is not an admission of defendant’s
guilt, but is an admission of the truth of the facts alleged in the
complaint and such plea or admission shall not be used against
the defendant in any subsequent civil or criminal proceeding.
(3) When a plea of guilty or no contest is accepted pursuant to
this rule, the court shall proceed with sentencing under Criminal
Rule 32.
{¶10} Based on the requirements of Traf.R. 10(B), in a traffic case
involving a petty offense the court would simply need to inform Travis of the
effect of her plea. The right to be informed of the effect of a plea is a
nonconstitutional requirement subject to review under a standard of substantial
compliance. State v. Griggs, 103 Ohio St.3d 85,
814 N.E.2d 51,
2004-Ohio-4415,
¶ 12 citing State v. Nero,
56 Ohio St.3d 106, 107. “Substantial compliance means
that under the totality of the circumstances, the defendant subjectively understands
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the implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio
St.3d 106, 108 (1990). “Furthermore, ‘a defendant must show prejudice before a
plea will be vacated for a trial court’s error … when nonconstitutional aspects
of the colloquy are at issue.’” State v. Thomas, 3d. Dist. No. 10-10-17, 2011-
Ohio-4337, ¶ 21, quoting State v. Veney,
120 Ohio St.3d 176,
2008-Ohio-5200, at
¶ 17.
{¶11} For Travis to establish prejudice, she would have to demonstrate that
her plea would not have been made otherwise. Id. Moreover, the Supreme Court
of Ohio has held “that a defendant who has entered a guilty plea without asserting
actual innocence is presumed to understand that he has completely admitted his
guilt. In such circumstances, a court’s failure to inform the defendant of the effect
of his plea … is presumed not to be prejudicial.” Griggs at ¶ 12.
{¶12} In the case sub judice, Travis claims that the plea dialogue at her
hearing was deficient in two ways. First, she argues that the court did not inform
her of the effect of her plea; specifically that her plea of guilty constituted a
complete admission of guilt. Second, she argues that the court did not specifically
address her during the plea.
{¶13} What follows is the relevant excerpt of the dialogue from the plea
hearing.
MS. MUSIC: (INAUDIBLE), pretrial report in the file, your
honor.
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Case No. 14-11-19
THE COURT: The pretrial report says on the F R A suspension
case that the defendant should – is to be sentenced – or the
recommendation is the defendant be sentenced to pay a $600
fine, $300 suspended and the court costs, 10 days house arrest in
lieu of community service of 500 hours, and a 30 day license
suspension. The remaining charges are to be dismissed at cost.
That’s the failure to report – or failure to file an accident report.
Miss Music, to the charge of driving under F R A suspension,
what plea does your client wish to enter?
MS. MUSIC: Guilty.
THE COURT: Miss Travis, do you understand that by entering
this guilty plea you are giving up certain rights. You’re giving
up your right to a trial, either to a jury or to the court. And at
that trial the burden would be on the Prosecutor to prove your
guilt beyond a reasonable doubt. Do you understand you’re
giving up your right to make them do that?
DEFENDANT: Yes, your Honor.
THE COURT: You’re giving up your right not to testify against
yourself. You’re giving up your right to confront and cross
examine your accusers and any witnesses in open court. And
you’re giving up your right to subpoena any witnesses you may
have in your own defense. Do you understand that you are
giving up all those rights?
DEFENDANT: Yes.
THE COURT: Did anyone make any promises or threats or in
any [sic] try to either talk you into entering this plea or talk you
out of having a trial?
DEFENDANT: No, your Honor.
THE COURT: So you’re doing this of your own free will. Is
that correct, Miss Travis?
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DEFENDANT: (NO AUDIBLE RESPONSE GIVEN.)
THE COURT: Miss Music, is there anything you want me to
consider in passing judgment and sentence?
MS. MUSIC: We would just ask for a payment plan for fines
and court costs.
THE COURT: Miss Travis, is there anything that you want me
to know that Miss Music may not have told me?
DEFENDANT: No, your Honor.
(Aug. 31, Tr. at 3-5).
{¶14} Travis claims that the above dialogue was deficient because the court
failed to inform her that her plea was an admission of guilt. While it is true that
the court did not specifically inform Travis that her guilty plea was a complete
admission of guilt as is required under Traf.R. 10(D), the record of the foregoing
dialogue is enough to suggest that Travis subjectively understood that she was
making a complete admission of guilt and that she also understood the rights she
was waiving in tendering her plea of guilty. Travis pled guilty through her
counsel, was informed of her constitutional rights and gave no indication that she
did not understand her plea or the proceedings. In addition, pursuant to
negotiations for the guilty plea, a pretrial report was produced containing a
recommended sentence agreed to by the parties. (Doc. No. 3). This agreement
was referred to in the dialogue.
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{¶15} A subjective understanding is all that is required to meet ‘substantial
compliance’ of the nonconstitutional right to be informed of the effect of a plea.
State v. Nero, supra. We find that the foregoing dialogue is enough to
demonstrate that Travis subjectively understood the nature of her plea and that,
therefore, the court was in substantial compliance with Traf.R. 10(D) despite not
specifically informing Travis that her plea was a complete admission of guilt.
{¶16} Furthermore, even if the court was not in substantial compliance with
the above dialogue, we find nothing in the record showing that there was any
prejudice to Travis meriting reversal. The fact that she pled guilty without
asserting her innocence at the plea hearing raises the presumption that the
omission was not prejudicial. Griggs, supra, at ¶ 12. On the contrary, while
Travis raised an issue at her arraignment that one of her suspension letters may
have been sent to the wrong address and therefore that she may not have received
proper notice, she made no similar claim or other claim of innocence at her plea
hearing. The record is thus devoid of any information that would suggest Travis
would have made a different decision had the court informed her that pleading
guilty was a complete admission of guilt.
{¶17} Turning to Travis’s second argument regarding the plea dialogue,
Travis claims that the court did not specifically address her. She bases her
arguments upon the holdings in City of Hamilton v. Johnson, 12th App. No.
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Case No. 14-11-19
CA2008-03-094, 2009-Ohio-432 and State v. Smith, 3d App. No. 16-03-17, 2004-
Ohio-1953, where reversible error was found when the court essentially did not
address the defendant at all. However, unlike the cases cited by Travis, in this
case, Travis was specifically addressed by the court for all but two questions.
Accordingly, we find this argument to be without merit.
{¶18} For the foregoing reasons, Travis’s first assignment of error is
overruled.
Second Assignment of Error
{¶19} Travis next contends that she received ineffective assistance of
counsel in violation of her Sixth and Fourteenth Amendment rights, as well as her
rights under Section 10, Article I of the Ohio Constitution.
{¶20} In order to prevail on a claim of ineffective assistance of counsel,
Travis must meet both prongs of the two-part test established in Strickland v.
Washington, 466 U.S. 668,
104 S.Ct. 2052 (1984), as applied to the plea process in
Hill v. Lockhart,
474 U.S. 52,
106 S.Ct. 366 (1985). See State v. Xie,
62 Ohio
St.3d 521,
584 N.E.2d 715. The first prong of the test requires Travis to show that
her counsel’s performance was deficient. Strickland,
466 U.S. at 687; Xie,
62
Ohio St.3d at 524. The second prong of the test requires Travis to show that there
is a reasonable probability that, but for counsel’s errors, she would not have
entered her plea and instead would have insisted on going to trial.
Hill supra at
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57-59; Xie supra at 524. Finally, when considering a claim of ineffective
assistance of counsel, the court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.”
Strickland,
466 U.S. at 689
{¶21} In support of her second assignment of error, Travis makes two
arguments to show that her counsel was ineffective. First, Travis argues that her
counsel could not have had enough time to adequately review the case and provide
competent representation as her counsel first entered an appearance only the day
before the scheduled bench trial. Second, Travis claims that her counsel was
deficient for failing to obtain documents which, according to Travis, would
establish that the BMV sent required notifications to the wrong address and would
establish that Travis had insurance both at the time of the accident she apparently
failed to report and on a subsequent date when she was pulled over for speeding
on August 9, 2011.
{¶22} At the outset, there is nothing in the record to indicate that any of
these documents existed or that they had any bearing on the Driving Under FRA
Suspension charge she pled guilty to in this case. Moreover, there is no evidence
in the record that Travis’s counsel did not have enough time to prepare for this
case or that Travis had a meritorious defense to the charge supported by
documentation. Finally, there is nothing in the record to indicate that anything
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Travis’s attorney did or did not do, would have changed Travis’s decision to plead
guilty to one charge in exchange for the dismissal of a second charge in this case.
In sum, there is nothing in the record to establish that Travis’s plea was anything
less than voluntary, knowing, or intelligent. For the foregoing reasons, Travis’s
second assignment of error is hereby overruled.
{¶23} For the foregoing reasons, Travis’s assignments of error are hereby
overruled and the judgment is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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