[Cite as State v. Thompson,
2024-Ohio-5533.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio/City of Perrysburg Court of Appeals No. WD-22-062
Appellee Trial Court No. TRC22000241
v.
Paul F. Thompson DECISION AND JUDGMENT
Appellant
Decided: November 22, 2024
…
Chynna L. Fifer, Prosecuting Attorney, City of Perrysburg, for appellee.
Dan M. Weiss, for appellant.
…
OSOWIK, J.
{¶ 1} Following a guilty plea, the defendant-appellant, Paul F. Thompson, was
convicted of a first-degree misdemeanor by the Perrysburg Municipal Court and
sentenced to 90 days in jail. On appeal, Thompson claims that the court committed
reversible error by failing to call for an “explanation of circumstances” before accepting
his guilty plea and finding him guilty. We affirm.
I. Background
{¶ 2} Following a single-car accident on January 27, 2022, Thompson was
charged with two alcohol-related offenses under R.C. 4511.19: operating a motor vehicle
while under the influence (“OVI”) under Section (A)(1)(a), and refusing to submit to a
test, under Section (A)(2), both first degree misdemeanors. Thompson was also charged
with failure to control, in violation of R.C. 4511.202, a minor misdemeanor. Thompson
failed to appear for a pretrial hearing on May 31, 2022, and a warrant was issued for his
arrest.
{¶ 3} The warrant was served, and a hearing was held on September 9, 2022. At
that time, the state moved to amend the OVI offense under R.C. 4511.19(A)(1)(a) to a
violation under R.C. 4511.194 (“Physical control of vehicle while under the influence”).
The court cited “evidentiary issues” as the reason supporting the amendment. It also
indicated that the parties had reached an agreement, whereby Thompson would plead
guilty to that offense and the state would dismiss the other two charges (refusal to test
and failure to control). Following a plea colloquy with Thompson, the trial court
accepted his guilty plea, entered a finding of guilt and convicted him. It sentenced him to
serve 90 days in jail and to pay a fine of $250.00.
{¶ 4} Thompson was appointed counsel and appealed, raising a single assignment
of error for our review:
2.
ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED
WHEN IT FOUND APPELLANT GUILTY WITHOUT AN
EXPLANATION OF CIRCUMSTANCES TO SUPPORT THE
AMENDED COMPLAINT PURSUANT TO R.C. 2937.07.
II. Law and Analysis
{¶ 5} Thompson alleges that the trial court erred in entering a finding of guilt
without calling for an “explanation of circumstances,” in violation of R.C. 2937.07
(“Action on pleas of ‘guilty’ and ‘no contest’ in misdemeanor cases”). The statute
provides, in relevant part,
Upon receiving a plea of guilty, the court or magistrate shall call for
an explanation of the circumstances of the offense from the affiant or
complainant or the affiant’s or complainant’s representatives unless the
offense to which the accused is pleading is a minor misdemeanor in which
case the court or magistrate is not required to call for an explanation of the
circumstances of the offense.
{¶ 6} In this case, Thompson pled guilty to having physical control of a vehicle
while under the influence, which is classified as a first-degree misdemeanor, and
therefore, an explanation of circumstances was “mandated by R.C. 2937.07.” State v.
Hair, 2023-Ohio-2423, ¶ 13 (6th Dist.), quoting State v. Russell,
2011-Ohio-1181, ¶ 7
(7th Dist); R.C. 4511.194(D).
{¶ 7} R.C. 2937.07 does not define the phrase “explanation of circumstances,” but
we have found that,
“At a minimum, it [requires] evidence sufficient to demonstrate the
accused’s criminal liability on the standards imposed by R.C. 2901.21
3.
[‘Requirements for criminal liability’] with respect to the offense alleged.”
State v. Keplinger, 1998WL864837 (2d Dist. Nov. 13, 1998). In that
regard, when a court recites the charges against an accused, that recitation
follows the terms of the statute under which the accused was charged, and
the accused agrees to the truth of the charges and pleads guilty, a sufficient
explanation of circumstances supports the finding of guilty.
State v. Ostrander, 2011-Ohio-3495, ¶ 24 (6th Dist.) (Finding the exchange between the
trial court and defendant constituted a “sufficient explanation of circumstances” to
support the finding of guilt).
{¶ 8} The state bears the burden of ensuring that an explanation of circumstances
appears on the record before a conviction is entered. Hair at ¶ 14. “[I]t is immaterial
who actually states the explanation on the record, [but] the record must affirmatively
demonstrate that a sufficient explanation of circumstances was made.” State v. Holley,
2020-Ohio-5104, ¶ 20 (2d Dist.).
{¶ 9} Here, the state moved to amend the charge against Thompson to “physical
control.” In support of that charge, it made the following proffer:
There was a one-car accident. No caller. Trooper sees a car in a
ditch. And the defendant doesn’t speak. He doesn’t test. He refused. The
only thing they had is odor. He was a little unsteady on his feet but he was
also flipped over in a ditch. . . [W]e are aware that there are two prior OVIs
[and] two amended physicals. So the State’s assumption is that he knows
not speaking at all goes to his benefit.
{¶ 10} In response, defense counsel said, “that’s an accurate recitation as we’ve
discussed the situation. Previously, Mr. Thompson, again, via phone suggested results
and requests the Court to accept the recommendation and proceed to sentencing.” Next,
the trial court advised Thompson that he was pleading guilty to “physical control” which
4.
it described as “another alcohol-related traffic offense,” carrying up to “six months in jail
and a $1,000 fine.” The trial court asked Thompson to confirm his “understanding [that]
you’re going to enter a plea today to physical control,” which Thompson acknowledged.
Following a Crim.R. 11 colloquy, the trial court accepted Thompson’s guilty plea.
{¶ 11} On appeal, Thompson claims that an explanation of circumstances was “not
provided” because a “description of the facts” supporting the charge and the “required
elements” of the offense are missing from the record. We disagree.
{¶ 12} R.C. 4511.194(B)(1) provides, in relevant part, that “[n]o person
shall be in physical control of a vehicle. . . if, at the time of the physical control. . .
[t]he person is under the influence of alcohol, a drug of abuse, or a combination of
them.” The term “[p]hysical control” is defined as “being in the driver’s position
of the front seat of a vehicle. . . and having possession of the vehicle’s . . . ignition
key or other ignition device.” R.C. 4511.194(A)(2).
{¶ 13} Here, the state alleged that Thompson was involved in a “one-car
accident,” and the only conclusion to be drawn from the state’s recitation is that he
was the driver of that vehicle and thus in “physical control” of it. That is,
Thompson was described as being “unsteady on his feet” after exiting his “flipped
over” vehicle, and importantly, there are no facts to indicate that anyone else was
in the vehicle who could have been operating it. Further, we note that Thompson
does not specifically raise the “physical control” element on appeal.
5.
{¶ 14} As for the “under the influence” element, the state described
Thompson as having an “odor” about him and “refus[ing]” to “speak” or “test,”
which the state alleged was because “he knows not speaking at all goes to his
benefit,” given his “two prior OVI’s” and “two amended physicals.” Thompson
concedes to the accuracy of that description, and he specifically acknowledged to
the court that this was “an alcohol related offense” before pleading guilty.
{¶ 15} Upon review, we find that the combination of the state’s recitation of the
facts, Thompson’s agreement with the “accura[cy]” of those facts, including specifically
that this was an “alcohol-related offense,” and his guilty plea were sufficient to
demonstrate Thompson’s criminal liability. Moreover, and as in Hair, we also find that
there is nothing in the record to suggest that Thompson did not understand the
underlying facts before he pled guilty, and Thompson has not claimed otherwise. That
is, he does not claim that he was confused by the amended charge.
{¶ 16} Furthermore, “an ‘explanation of circumstances’ has been deemed a
substantive right, only in situations where a defendant pleads ‘no contest.’” State v.
Jones, 2016-Ohio-6987, ¶ 32 (11th Dist.) citing Cuyahoga Falls v. Bowers,
9 Ohio St.3d
148, 151 (1984). Where, however, a defendant pleads guilty, as in this case, such an
explanation does not carry the same “substantive import.”
Id. Dicta from Jones
indicates that even where an explanation of circumstances is missing from the record, a
defendant’s “plea of guilty renders any error harmless as a matter of law.”
Id. Indeed,
“a counseled plea of guilty is an admission of factual guilt so reliable that, where
6.
voluntary and intelligent, it quite validly removes the issue of factual guilt from the
case.” State v. Ellis,
2017-Ohio-8104, ¶ 6 (2d Dist.) quoting Menna v. New York,
423
U.S. 61, 62, fn. 2 (1975).
{¶ 17} Under the circumstances of this case, we find that the explanation-of-
circumstances requirement of R.C. 2937.07 was satisfied. Therefore, Thompson’s
assignment of error is found not well-taken.
III. Conclusion
{¶ 18} The record indicates that the explanation of circumstances provided in this
case was sufficient under R.C. 2937.07. Accordingly, Thompson’s assignment of error
is found not well-taken, and the September 9, 2022 judgment of the Perrysburg
Municipal Court is affirmed. Pursuant to App.R. 24, Thompson is ordered to pay the
costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Charles E. Sulek, P.J.
CONCUR. JUDGE
7.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
8.
