[Cite as State v. Ely,
2022-Ohio-4039.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0028
Plaintiff-Appellee,
Criminal Appeal from the
-v- Conneaut Municipal Court
DAVID ELY,
Trial Court No. 2021 TRC 00244
Defendant-Appellant.
OPINION
Decided: November 14, 2022
Judgment: Affirmed
John D. Lewis, City of Conneaut Law Director, 294 Main Street, Conneaut, OH 44030
(For Plaintiff-Appellee).
Adam Parker, The Goldberg Law Firm, 323 West Lakeside Avenue, Suite 450,
Cleveland, OH 44113 (For Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, David Ely, appeals the judgment of the Conneaut Municipal Court
imposing sentence following his guilty plea to operating a vehicle under the influence
(“OVI”). We affirm.
{¶2} Following a traffic stop, Ely was charged with speeding and OVI, in violation
of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree pursuant to R.C.
4511.19(G)(1)(a). After plea negotiations, Ely entered a guilty plea to the OVI charge,
and the state agreed to dismiss the speeding charge. The trial court accepted Ely’s guilty
plea and sentenced him to 180 days of confinement, suspending all but 10 days, and five
years of supervised community control. The trial court issued an entry granting a stay of
the sentence during the pendency of appeal.
{¶3} The trial court appointed counsel for Ely’s appeal. Counsel ultimately filed
a brief, pursuant to Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493
(1967). After an independent review of the proceedings below, this court concluded the
record disclosed colorable issues for appeal: whether the trial court erred by failing to
inform Ely of the effect of his guilty plea, and whether the plea is governed by Traf.R. 10,
as alleged by the state, or Crim.R. 11, as was alleged in appellant’s Anders brief. We
appointed new counsel to argue this and any other assignments of error that successor
counsel chose to raise.
{¶4} The parties have now re-briefed the issue pertaining to the trial court’s
failure to inform Ely of the effect of his guilty plea, and both parties maintain that Traf.R.
10(D) applies. In his sole assigned error, Ely argues:
{¶5} “The trial court failed to comply with Traf. R. 10(D) by not explaining the
effect of a guilty plea.”
{¶6} “A violation of R.C. 4511.19(A)(1) aka DUI or OVI, as a first-degree
misdemeanor, constitutes a ‘traffic case’ to which the Ohio Traffic Rules apply.” State v.
Sauceman, 11th Dist. Trumbull No. 2020-T-0033, 2021-Ohio-172, ¶ 13, citing Traf.R. 1(A)
& 2(A) and R.C. 4511.19(G)(1)(a). “Punishable by a jail-term of ‘not more than one
hundred eighty days,’ [Ely]’s DUI charge constitutes a ‘petty offense’ under the Traffic
Rules.” Sauceman at ¶ 13, citing R.C. 2929.24(A)(1) and Traf.R. 2(D).
{¶7} Traf.R. 10(D) provides that “[i]n misdemeanor cases involving petty
offenses … the court may refuse to accept a plea of guilty or no contest and shall not
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accept such pleas without first informing the defendant of the effect of the plea of guilty,
no contest, and not guilty. This information may be presented by general orientation or
pronouncement.” “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. Watkins, 99 Ohio St.3d
12,
2003-Ohio-2419,
788 N.E.2d 635, at syllabus; State v. Jones,
116 Ohio St.3d 211,
2007-Ohio-6093,
877 N.E.2d 677, ¶ 25. Traf.R. 10(B)(1) provides, “[t]he plea of guilty is
a complete admission of the defendant’s guilt.” Crim.R. 11(E) provides that “[i]n
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,” and is therefore “identical in
all relevant respects to Traf.R. 10(D).” Watkins at ¶ 15.
{¶8} Neither Crim.R. 11(E) nor Traf.R. 10(D) mandate the heightened colloquy
required for felony pleas pursuant to Crim.R. 11(C)(2), which provides:
In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or
no contest without first addressing the defendant personally
either in-person or by remote contemporaneous video in
conformity with Crim.R. 43(A) and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved, and if applicable, that
the defendant is not eligible for probation or for the imposition
of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
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waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify
against himself or herself.
See also Watkins at ¶ 25 (“A judge’s duty to a defendant before accepting his guilty or no
contest plea is graduated according to the seriousness of the crime with which the
defendant is charged.”). Accordingly, “[i]n all cases, the judge must inform the defendant
of the effect of his plea. In felony cases and misdemeanor cases involving serious
offenses, a judge must also ‘addres[s] the defendant personally’ and ‘determin[e] that the
defendant is making the plea voluntarily.’” Id. at ¶ 26, citing Crim.R. 11. “For felony
defendants, and only felony defendants, Crim.R. 11(C)(2)(c) adds something extra and
separate—the judge must also inform the defendant of all the rights attendant to the trial
that he is foregoing.” (Emphasis sic.) Watkins at ¶ 27.
{¶9} Here, the trial court engaged in the following plea colloquy:
THE COURT: … Mr. Ely, what’s being indicated today is that
you wish to change your original not guilty plea to a plea of
guilty to the charge of Operating a Vehicle Under the
Influence. Is that what you wish to do today?
THE DEFENDANT: Yes.
THE COURT: You understand that by pleading guilty to this
offense that you would be withdrawing – your attorney and
you would have to withdraw the suppression motion that you
filed, so you would be withdrawing any request for this Court
to review the issues raised in the suppression motion, and you
would be withdrawing your right to a suppression hearing. Is
that what you wish to do?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. By pleading guilty, you would also be
waiving your right to a trial, which includes your right to cross-
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examine witnesses and to confront evidence presented
against you. You’d be waiving your right to testify or not
testify, without any negative connotation. You’d be waiving
your right to subpoena witnesses. You’d be waiving your right
to be proven guilty beyond a reasonable doubt, as well as your
right to a jury trial. All of those, your trial rights, you’d be
waiving by pleading guilty to this offense.
Are you sure you want to do that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You are represented by [defense counsel].
Have you had sufficient time to consult with him, and are you
satisfied with his counsel?
THE DEFENDANT: Yes.
THE COURT: Has anyone made any promises to you on what
your sentence will be in order to induce you to plead guilty to
this offense?
THE DEFENDANT: No.
THE COURT: Okay. So, you understand that whatever
recommendations are being made are simply that: They’re
just recommendations to the Court. This Court does not have
to follow any recommendations. So, do you understand that?
THE DEFENDANT: Yes.
THE COURT: Okay. Are you currently under the influence of
any drugs, alcohol or prescription medications today that
might affect your thinking?
THE DEFENDANT: No, Your Honor.
THE COURT: Are you currently on probation, parole,
community control or post-release control with any court?
THE DEFENDANT: No.
THE COURT: And are you thinking clearly today, and do you
understand everything that’s happening?
THE DEFENDANT: Yes.
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THE COURT: I’m going to provide a form for you and [defense
counsel] to review and, if you find it acceptable, execute.
[DEFENSE COUNSEL]: This is the written waiver of trial, jury
trial, which he just communicated verbally (inaudible) would
sign there. Thank you.
Mr. Ely has executed, and I’ve signed it as well, in open court
a waiver of trial rights and the right to a jury trial in the instant
case, Your Honor. Thank you.
…
THE COURT: … The Court finds the Defendant’s plea of
guilty to the charge of Operating a Vehicle Under the
Influence, a violation of Section 4511.19(A)(1)(a) of the Ohio
Revised Code, is knowing, voluntary and intelligent. The
Court will accept the guilty plea to that charge. I will, therefore,
find the Defendant guilty of that offense.
{¶10} Thus, although the trial court explained numerous rights to Ely that he would
be waiving due to his guilty plea, there is no dispute that the trial court did not specifically
inform Ely that his guilty plea was “a complete admission of [his] guilt.” See Traf.R. 10(B)
& 10(D). In Sauceman, this court held:
The failure to comply with the sole requirement mandated by
the Traffic Rules for accepting a plea in petty offense cases,
like its counterpart for petty offense cases in the Criminal
Rules, is grounds for reversing the conviction. State v. Clark,
2012-Ohio-3889,
976 N.E.2d 293, ¶ 32 (11th Dist.) (by failing
“to inform appellant of the effect of her guilty plea, as
mandated by Crim.R. 11(E) and Traf.R. 10(D)” the trial court
“committed prejudicial error”); State v. McGlinch, 2019-Ohio-
1380, 135 N.E.3d 406, ¶ 31 (2d Dist.); Maple Heights v.
Mohammad, 8th Dist. Cuyahoga No. 108060, 2019-Ohio-
4577, ¶ 16; State v. Smith, 9th Dist. Medina No. 14CA0122-
M, 2016-Ohio-3496, ¶ 12.
Sauceman at ¶ 17. See also State v. McGrath, 2d Dist. Darke No. 2019-CA-21, 2021-
Ohio-2605, ¶ 18.
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{¶11} Relying on Sauceman, Ely argues that the trial court’s failure to inform him
that his guilty plea was a complete admission of his guilt constituted a “complete” failure
to comply with the Rule, and thus he is not required to demonstrate prejudice. However,
unlike Sauceman and McGrath, the trial court here explained numerous rights that Ely
was waiving by entering a guilty plea, such as those set forth in Crim.R. 11(C)(2),
including Ely’s right to a jury trial, to cross-examine witnesses against him, to subpoena
witnesses, to testify or not, without negative connotation, and to be proven guilty beyond
a reasonable doubt.
{¶12} The state maintains that although the trial court did not strictly comply with
Traf.R. 10(D), it substantially complied with the Rule, and Ely was not prejudiced. In
support, the state relies on the Supreme Court of Ohio’s decision in State v. Griggs, 103
Ohio St.3d 85,
2004-Ohio-4415,
814 N.E.2d 51. In Griggs, the defendant entered guilty
pleas to voluntary manslaughter and burglary, thus implicating Crim.R. 11(C)(2). Id. at ¶
2-3. “During a plea hearing, the court advised Griggs of potential sentencing
consequences and of various rights, including the rights to have a jury trial, to have an
attorney, to subpoena witnesses, to confront his accusers, and to avoid compulsory self-
incrimination. The court did not, however, inform Griggs that his guilty plea was a
complete admission of guilt.” Id. at ¶ 4.
{¶13} The Griggs court recognized that the right to be informed of the effect of a
plea is a nonconstitutional right, subject to a substantial compliance standard. Id. at ¶ 12.
The court 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 guilty plea as
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required by Crim.R. 11 is presumed not to be prejudicial.” Id. at syllabus. The Griggs
court specifically did not limit its analysis to Crim.R. 11(C)(2), but instead “resolve[d] the
effect of a court’s failure to advise a criminal defendant that a guilty plea is a complete
admission of guilt, pursuant to Crim.R. 11(C)(2), (D), and (E).” Id. at ¶ 2. Because
Traf.R. 10(D) is identical in relevant part to Crim.R. 11(E), we conclude that the Griggs
holding applies to Traf.R. 10(D). See Watkins, 2003-Ohio-2419, at ¶ 15.
{¶14} However, Ely further contends that, unlike Griggs, his comments at the
sentencing hearing assert actual innocence and establish prejudice.
{¶15} After the plea colloquy recited above, the following exchange occurred while
discussing the circumstances of the traffic stop and the services Ely had been receiving:
THE COURT: Okay. And in the report I have in front of me
from Community Counseling Center indicates that you have
not – you quit drinking in 2015.
THE DEFENDANT: Yeah. I hadn’t drank for quite some time.
THE COURT: Okay. Was this a relapse on your part?
THE DEFENDANT: No.
THE COURT: Okay. Also, the report also indicates you
continue to use cannabis at least once a week but said you
had quit over a month ago.
So, were you under the influence of marijuana at the time? I
mean –
THE DEFENDANT: No. I was pulled over – I was pulled over,
I feel I should have just got a speeding ticket. The officer
grabbed me out of my vehicle physically. That’s what started
me, that I was kind of uncooperative after that, because I was
upset that he had physically grabbed me out of my vehicle and
detained me into his patrol car, and then after that did the field
sobriety and stuff like that.
And, yeah, I was up – upset. I was upset.
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THE COURT: Well, I understand you were upset, but that’s
my question [sic]. My question is, you just pled guilty to
operating a vehicle under the influence. What were you under
the influence of at the time?
THE DEFENDANT: I blew a breathalyzer.
[DEFENSE COUNSEL]: Your Honor, if I may?
THE COURT: Yes.
THE DEFENDANT: I don’t want to say anything incriminating
here. I mean, I blew into the breathalyzer.
THE COURT: You just pled – you just pled guilty, Mr. Ely.
THE DEFENDANT: I blew into the breathalyzer.
THE COURT: There isn’t anything more incriminating than
that. You just pled guilty.
So go ahead, [defense counsel].
[DEFENSE COUNSEL]: Your Honor, thank you.
Um, Mr. Ely did blow a .118 on the portable breathalyzer test,
and once he was at the jail, he claimed the alcohol present
was from Robitussin cough syrup.
THE COURT: Okay.
[DEFENSE COUNSEL]: So, that’s what he claimed on the
day of the offense, Your Honor.
THE COURT: Okay.
[DEFENSE COUNSEL]: Thank you.
THE COURT: Thank you.
Mr. Ely, you just pled guilty to operating a vehicle under the
influence of alcohol, drugs of abuse, or a combination thereof.
That’s what you just pled guilty to.
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So, um, if you don’t want to say anything before I sentence
you, that’s fine. You know, I mean –
THE DEFENDANT: Well –
THE COURT: -- you – you pled guilty to that.
THE DEFENDANT: I understand, Your Honor.
THE COURT: So, my question was simple: What were you –
what were you under the influence of?
THE DEFENDANT: It was – I blew a 1.8 [sic.], it was alcohol.
THE COURT: Okay. So, the report you made to Community
Counseling was not correct? It says he – he reported he quit
drinking in 2015. So drinking alcohol is different than
Robitussin?
THE DEFENDANT: No.
THE COURT: Okay. I’m going to proceed to impose
sentence. …
{¶16} Despite Ely’s comments that could indicate that he did not understand that
the effect of his guilty plea was a complete admission of guilt, he did ultimately
acknowledge that he blew above the legal limit on the breathalyzer as a result of alcohol.
Therefore, to the extent that Ely maintains that the Griggs presumption is inapplicable
due to his assertion of actual innocence, his argument lacks merit.
{¶17} Accordingly, we conclude that the trial court substantially complied with
Traf.R. 10(D) and Ely is “presumed to understand that he has completely admitted his
guilt” pursuant to Griggs.
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{¶18} Therefore, the judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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