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Chagrin Falls v. Katelanos10/11/1988
Markus, J.
Apparently pursuant to a plea bargain, the defendant, Peter Katelanos, pled no contest to driving with an excessive blood-alcohol content, and the prosecution dismissed charges of driving while intoxicated and driving left of center. The defendant appeals from the resulting conviction. His six assignments of error, set forth in an Appendix to this opinion, argue that the court (a) failed to inform him of the effect of his plea before accepting it, and (b) failed to obtain an explanation of the circumstances of the offense before finding him guilty.
We agree that the proceedings were defective, so we reverse the conviction, reinstate all the charges, and remand the cause for further proceedings.
Before relying upon a no contest plea to convict a defendant for any misdemeanor, the court must comply with R.C. 2937.07. See Cuyahoga Falls v. Bowers (1984), 9 Ohio St.3d 148, 9 OBR 438, 459 N.E.2d 532, syllabus. Pursuant to that statute, the court "shall call for explanation of circumstances of the offense from the affiant or complainant or his representatives" together with "any statement of accused." The court must then "make finding of guilty or not guilty from the explanation of circumstances."
The record must show that the required explanation included a statement of facts which supports all the essential elements of the offense. Cuyahoga Falls v. Bowers, supra, at 150, 9 OBR at 440, 459 N.E.2d at 535. The mere fact that the court's record includes documents which could show the defendant's guilt will not suffice. If the prosecution relies on such documents, the record must show that the court considered them. Id. at 151, 9 OBR at 440-441, 459 N.E.2d at 535.
In this case, the transcript fails to demonstrate that the court called for the required explanation of circumstances, or considered such information before convicting the defendant. Hence, the conviction cannot stand.
We sustain the defendant's assignments of error and reverse his conviction. Since the improper conviction resulted from a defective plea, the defendant has not performed his part of the apparent plea bargain. Hence, we must vacate the court's action and reinstate all the original charges. Cf. Ricketts v. Adamson (1987), 483 U.S. 1, 9-10 (breach of a plea agreement by a defendant restores the parties to their original positions). With that action, we remand the case for further proceedings.
Judgment reversed and cause remanded.
Pryatel, C.J., and Dyke, J., concur.
"I. The trial court erred by not having a meaningful dialogue with the appellant before accepting his plea of `no contest.'
"II. The trial court erred in finding the appellant guilty of violating the ordinance prohibiting a blood alcohol content equal to or exceeding .10.
"III. The trial court erred in failing to advise the defendant-appellant of his rights pursuant to Traffic Rules 8 and 10.
"IV. The trial court failed to advise the appellant, whether or not represented by counsel, of his constitutional and statutory rights pursuant to Criminal Rule 11(D) and (E) contrary to State v. Kristanoff , 32 Ohio App.2d 218; Ohio Revised Code Section 2937.02; Criminal Rule 5, Criminal Rule 11; Cleveland v. whipkey , 29 Ohio App.2d 79; and State v. Smith , 49 Ohio St.2d 261.
"V. The trial court took no explanation of circumstances of the offense charged in the complaint; it was, therefore, error to find appellant guilty.
"VI. The record fails to demonstrate that the judgment of the tri
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