City of Garfield Heights v. Brewer

Nahra, J. On June 1, 1983, appellant, Gemes Brewer, III, was arrested in Garfield Heights and charged with driving while under suspension in violation of R.C. 4509.76. On June 7, 1983, appellant signed a form entitled “Statement of Rights and Waiver of Counsel” 1 and pled no contest by circling “no contest” on the form. The trial court found appellant guilty and sentenced him to one hundred eighty days’ confinement and imposed a $500 fine. Appellant timely appealed raising two assignments of error which deal with the waiver of the right to counsel and other constitutional rights in a misdemeanor case where incarceration is imposed. I Appellant’s first assignment of error is that: “The trial court failed to advise appellant of his right to counsel when he appeared unrepresented at trial, and appellant did not make a knowing and intelligent waiver of his right to counsel.” Appellant was convicted of a misdemeanor involving a petty offense since the penalty prescribed for driving while under suspension does not provide for more than six months’ confinement but only up to six months’ confinement. See Crim. R. 2; R.C. 4509.99(B); Toledo v. Chiaverini (1983), 11 Ohio App. 3d 43. Accordingly, Crim. R. 11(E), 44(B) and (C), and 22 must be complied with. Crim. R. 11(E) provides that: “In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea -without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty- “The counsel provisions of Rule 44(B) and (C) apply to this subdivision.” Crim. R. 44(B) and (C) provide that: “(B) Counsel in petty offenses. Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully-advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel. “(C) Waiver of counsel. Waiver of *217 counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing.” (Emphasis added.) Finally, Crim. R. 22 provides, in relevant part, that: “In petty offense cases all waivers of counsel required by Rule kf(B) shall be recorded, and if requested by any party all proceedings shall be recorded.” (Emphasis added.) The requirements of the Criminal Rules are mandatory; all waivers of counsel must be made in open court and must be recorded. State v. Hang (1976), 49 Ohio App. 2d 268 [3 O.O.3d 301]; see Cuyahoga Falls v. Simich (1982), 5 Ohio App. 3d 10; State v. Minor (1979), 64 Ohio App. 2d 129 [18 O.O.3d 98], The Sixth Amendment right to counsel extends to misdemeanor cases which could result in the imposition of a jail sentence. Argersinger v. Hamlin (1972), 407 U.S. 25. Because courts indulge every reasonable presumption against a waiver of fundamental constitutional rights, Brewer v. Williams (1977), 430 U.S. 387; Johnson v. Zerbst (1938), 304 U.S. 458, that waiver must affirmatively appear on the record. State v. Haag, supra; Cleveland v. Whipkey (1972), 29 Ohio App. 2d 79 [58 O.O.2d 86]. A knowing and intelligent waiver will not be presumed from a silent record. Carnley v. Cochran (1962), 369 U.S. 506, 516; State v. Brinkman (Feb. 25, 1982), Cuyahoga App. No. 44262, unreported; State v. Washington (March 27, 1980), Cuyahoga App. Nos. 40623 & 40624, unreported. There is no transcript in the record before this court. 2 Therefore, we cannot say that the mandatory requirements of the Criminal Rules regarding waiver of counsel have been complied with. The record contains a signed statement of waiver, not necessarily a knowing and intelligent waiver. Regardless, a written waiver of counsel is not a substitute for compliance with the Criminal Rules which require an oral waiver in open court before a judge which is recorded. See Cuyahoga Falls v. Simich (1982), 5 Ohio App. 3d 10, 12; State v. Minor (1979), 64 Ohio App. 2d 129, 131 [18 O.O.3d 98]. Nor does it comply with the constitutional mandate that the waiver affirmatively appear on the record. Generally, the proceedings of the lower court are deemed to be correct. If there is no transcript of the proceedings and the error cannot be shown in the record, an appellant will not prevail. However, when confronted with the waiver of a constitutional, statutory or other substantial or fundamental right, such waiver must affirmatively appear in the record. See State v. Haag (1976), 49 Ohio App. 2d 268, 271 [3 O.O.3d 301]. Since the recording of waiver of counsel is mandatory, and the presumption is against a waiver of counsel, the city has the burden to show compliance with the rules. The city has not met its burden and proper waiver of counsel will not be presumed. Accordingly, appellant’s first assignment of error is sustained. II Appellant’s second assigned error is that: “The trial court erred in accepting a no contest plea without addressing defendant personally to determine the voluntariness of the plea and whether or not defendant understood the nature of the charge and the consequences of the plea.” A trial court “shall not accept [a] plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty.” Crim. R. 11(E). A no contest plea, like a guilty plea, waives several constitutional rights, including the right to a trial, the *218 privilege against self-mcrimmation, and the right to confront accusers. Toledo v. Chiaverini (1983), 11 Ohio App. 3d 43; see Boykin v. Alabama (1969), 395 U.S. 238, 243. Therefore, the record must affirmatively demonstrate that the plea of no contest was entered voluntarily, intelligently and knowingly. Chiaverini, supra, at 44-45. The burden is on the city to demonstrate a valid waiver of constitutional rights. Boykin, supra, at 242. Ohio cases which have determined whether the requirements of Crim. R. 11(C)(2) 3 for taking pleas in felony cases ■have been met, have required an affirmative showing on the record that the trial court explained the constitutional rights to be waived and that any waiver by a guilty or no contest plea was intelligible. State v. Ballard (1981), 66 Ohio St. 2d 473 [20 O.O.3d 397], paragraph two of the syllabus; State v. Billups (1979), 57 Ohio St. 2d 31 [11 O.O.3d 150], syllabus. A meaningful dialogue between the court and the defendant is required; written statements will not satisfy these requirements. State v. Caudill (1976), 48 Ohio St. 2d 342 [2 O.O.3d 467], paragraphs two and three of the syllabus; State v. Wilson (1978), 55 Ohio App. 2d 64, 65 [9 O.O.3d 223]. A reviewing court will then be able to examine the record and determine whether the trial court explained the constitutional rights and the effect of a guilty or no contest plea in a manner reasonably intelligible to the defendant. State v. Ballard, supra, at 480. The requirement of a meaningful dialogue on the record between the court and the defendant is no less applicable in misdemeanor cases with a possible penalty of imprisonment. Where possibility of incarceration exists, for even six months or less, constitutional rights attach unless validly waived. Cf. State v. Buchholz (1984), 11 Ohio St. 3d 24 (Miranda warnings are required in misdemeanor cases prior to custodial interrogations). Since a waiver will not be presumed from a silent record, Boykin, supra, at 243, the burden is on the city to show a valid waiver. The city has not met its burden in this case by affirmatively showing in the record that appellant’s plea was voluntarily, intelligently and knowingly given. Accordingly, appellant’s second assignment of error is sustained. The judgment of the Garfield Heights Municipal Court is reversed, appellant’s plea is vacated, and the case is remanded to the trial court to allow the appellant to plead anew. Judgment reversed and case remanded. Corrigan, J:, concurs. Day, C.J., not participating in final decision. Footnotes [1] A copy of the “Statement of Rights and Waiver of Counsel” form is included as the Appendix herein. [2] We do not know if a transcript was made or if one was made but appellant failed to request it on appeal. [3] Criminal Rule ll'(C)(2) provides that: “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: “(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. “(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. “(c) Informing him arid determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.”