COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60661 CITY OF BROADVIEW HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MICHAEL BACCELLIERI : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 13, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court No. 90-TRC-3996-01 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: KEVIN P. WEILER Law Director City of Broadview Heights 8920 Brecksville Road Brecksville, Ohio 44141 For Defendant-Appellant: EDWARD G. BOHNERT Bernard, Haffey & Bohnert Co., L.P.A. 5001 Mayfield Road, #301 P.O. Box 24300 Lyndhurst, Ohio 44124 - 2 - PATTON, J.: Defendant-appellant Michael C. Baccellieri ("appellant") appeals his conviction in the Parma Municipal Court of driving under the influence of alcohol, to which he entered a no contest 1 plea (Broadview Heights Codified Ordinances Section 434.01[A]). Appellant was also charged with weaving (Broadview Heights Codified Ordinances Section 432.38), but this charge was nolled after appellant consented to change his plea of not guilty to one of no contest. Appellant filed a statement of proceedings pursuant to App. R. 9(C). The City of Broadview Heights ("City") filed its version. The court then settled the record and filed its own App. R. 9 statement. The record indicates that appellant was sentenced on September 17, 1990 to a suspension of his driver's license for life with possible reinstatement after five years; one year jail sentence with eight months suspended; $3,200.00 fine with $2,400.00 suspended; 18 months probation; and a thirty- day in-house driving under the influence program to be credited to jail time. Sentence to commence and fines to be paid by October 9, 1990. The record reflects that appellant was arrested on June 17, 1990 and arraigned the following day. On August 13, 1990, a pretrial hearing was conducted wherein the prosecutor recommended 1 The record reflects that appellant had seven prior convictions for DUI offenses between 1982 and 1988. - 3 - the dismissal of the weaving charge in exchange for appellant's plea change to no contest. Thereafter, appellant entered a plea of no contest to the single charge. According to the App. R. 9 statement of proceedings, the trial judge recalled the following events: (1) discussion of appellant's prior multiple convictions for DUI offenses; (2) discussion of the mandatory minimum jail sentence, license suspension and mandatory alcohol treatment program; (3) discussion of jury waiver; and (4) no discussion of offering credit for in- house alcohol treatment program to be credited against mandatory minimum jail time. The trial court referred this case to the probation department in order that a report be prepared to assist the judge in sentencing appellant. Thereafter, appellant was sentenced on September 17, 1990. The trial court noted that no objections to appellant's sentence were raised. On appeal, appellant asserts that: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO ADHERE TO RULE 11(D), OHIO RULES OF CRIMINAL PROCEDURE, AND OHIO TRAFFIC RULE 10(C), IN RELATION TO THE JUDGMENT ENTERED. Specifically, appellant argues the trial court failed to address him personally; failed to advise him of the effect of his plea; and failed to determine whether appellant's pleas were voluntary. - 4 - Failure to follow the requirements of Traf. R. 10(C) or 10(D) is reversible error. See, Cuyahoga Falls v. Simich (1982), 5 Ohio App. 3d 10; Cleveland v. Holcomb (Sept. 29, 1988), Cuyahoga App. No. 54411, 54569, unreported, at 2; Cleveland v. Baker (Mar. 5, 1987), Cuyahoga App. No. 51774, unreported, at 2. Traf. R. 10(D) provides in relevant part: (D) Misdemeanor Cases Involving Petty Offenses. In 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 plea of guilty, no contest, and not guilty. Crim. R. 11(E) is identical to Traf. R. 10(D) and similar to Traf. R. 11(C) and reads: (E) Misdemeanor Cases Involving Petty Offenses. In 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. *** This court has held that a trial court's failure to inform a defendant of the effect of his plea to a petty offense is a violation of Crim. R. 11(E) and reversible error. Baker, supra, at 2 citing Cleveland v. Campbell (Apr. 16, 1981), Cuyahoga App. No. 43114, unreported. Operating a motor vehicle under the influence of alcohol is a "petty offense." Simich, supra, at 11- 12. Moreover, when a trial court has not even attempted to - 5 - comply with Crim. R. 11(E), the error is presumed prejudicial. State v. Hayes (1982), 2 Ohio App. 3d 376. In this case, the record does not reflect that the trial court instructed and advised appellant pursuant to the mandates of the aforementioned rules. The assignment of error is well-taken. Judgment reversed and remanded for proceedings consistent with this opinion. - 6 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, P.J. ANN McMANAMON, J. CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .