COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67741 : CITY OF INDEPENDENCE : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOSE VICARIO, III : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 28, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case No. 94 TRD 3855 A JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS P. GILL, ESQ. PAUL B. DAIKER, ESQ. 75 Public Square LARRY W. ZUKERMAN, ESQ. Suite 1320 Zukerman & Associates Cleveland, Ohio 44113 160 Signature Square I 25201 Chagrin Boulevard Cleveland, Ohio 44122 - 2 - KARPINSKI, J.: Defendant-appellant, Jose Vicario III (hereinafter referred to as defendant), appeals from a judgment stating he pled no contest to the offenses of driving under suspension and weaving. Defendant assigns five assignments of error for this court's review. For the following reasons, this appeal is well taken. Defendant was stopped on June 12, 1994, and issued two citations by the Independence police department. The citations were for Driving Under Suspension, in violation of R.C. 4507.02(B)(1), and Weaving, in violation of R.C. 4511.33. On June 21, 1994, defendant appeared in Garfield Heights Municipal Court for his arraignment. At this appearance, defendant pled not guilty to the charges against him. The docket then reveals that a trial was scheduled for July 11, 1994. This court has not been presented with any transcript detailing what transpired on July 11, 1994. Another conference was held on July 25, 1994. The journal entry from the court on this date states that defendant entered a plea of no contest to the charges on July 11, 1994. The court sentenced defendant as follows: 180 days in jail, 170 of those days to be suspended; a fine of $500 with $350 suspended; a one- year suspension of driving privileges; and court costs. On July 27, 1994, defendant filed a motion to mitigate sentence, which motion was immediately denied by the trial court. Thereafter, on July 29, 1994, defendant timely appealed to this court. - 3 - Defendant also moved to suspend sentence pending appeal, which motion the trial court granted. Defendant raises five assignments of error. The first three assignments of error address the same issue of whether the trial court erred in accepting defendant's no contest plea. These first three assignments of error will be addressed together: I. THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT- APPELLANT WITHOUT CONDUCTING A TRIAL. II. THE TRIAL COURT ERRED BY ENTERING A NO CONTEST PLEA ON BEHALF OF THE DEFENDANT-APPELLANT THAT WAS NOT IN COMPLIANCE WITH CRIM.R.11. III. THE TRIAL COURT ERRED BECAUSE IT NEVER CALLED FOR AN EXPLANATION OF CIRCUMSTANCES OF THE OFFENSE AND NEVER CONSIDERED SUCH INFORMATION BEFORE CONVICTING THE DEFENDANT-APPELLANT. Defendant argues that the trial court erred in accepting his no contest plea without first advising him of his constitutional rights as contained in Crim.R. 11(D), (E). This rule provides as follows: (D) Misdemeanor Cases Involving Serious Offenses. In misdemeanor cases involving serious offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personally and informing him of the effect of the pleas of guilty, no contest, and not guilty and determining that he is making the plea voluntarily. Where the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (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. - 4 - The counsel provisions of Rule 44(B) and (C) apply to this subdivision. In Boykin v. Alabama (1969), 89 S.Ct. 1709, 395 U.S. 238, the United States Supreme Court unequivocally held that the court "cannot presume a waiver of these three important federal rights from a silent record." In Chagrin Falls v. Katelanos (1988), 54 Ohio App.3d 157, this court explained further in the syllabus as follows: 2. Absent a supporting record, a court cannot presume that a defendant entered a no contest plea, or that the court advised the defendant of the effect of the plea. Thus, there must be evidence that the defendant himself pleaded no contest. An acknowledgement by his counsel or the court will not suffice. See, also, State v. Hayes (1982), 2 Ohio App.3d 376; Toledo v. Chiaverini (1983), 11 Ohio App.3d 43. Garfield Heights v. James Lewis (July 28, 1994), Cuyahoga App. No. 64947, unreported. It is well-established, moreover, that a knowing and intelligent waiver will not be presumed from a silent record. Boykin, supra; Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216; Carnley v. Cochran (1962), 369 U.S. 506; State v. Brinkman (Feb. 25, 1982), Cuyahoga App. No. 44262, unreported. As this court has stated, this standard applies to misdemeanor cases. The requirement of a meaningful dialogue on the record between the court and the defendant is no less applicable in misdemeanor cases with a possibility of imprisonment. Where possibility of imprisonment exists, for even six months or less, constitutional rights attach unless validly waived. Lewis, supra, at 3 citing Brewer, supra. - 5 - In this case we are asked to review a no contest plea; how- ever, nowhere in the record is there a discussion of defendant's plea of no contest. Since a waiver will not be presumed from a silent record, "the burden is on the city to show a valid waiver." (Emphasis added.) Brewer, supra, at 218, following Boykin. In Brewer the court reversed a plea of no contest to a misdemeanor when the only evidence of this plea was a form signed by the defendant in which a plea of no contest was circled on the form. The court found that the city failed to meet its burden of affirmatively showing that the defendant's plea was voluntarily, knowingly, and intelligently given. In the case at bar there was not even a form in the record. The only evidence of defendant's plea is a journal entry stating defendant pled no contest to the charges. As in Katelanos, mere acknowledgement by the court without anything else in the record that defendant pled no contest will not suffice. Accordingly, because the record does not affirmatively demonstrate that the trial court complied with Crim.R. 11, defendant's first three assignments of error are well taken. In view of this court's disposition of defendant's first 1 2 three assignments of error, defendant's fourth and fifth 1 IV. THE TRIAL COURT ERRED IN HOLDING THAT THE DEFENDANT WAS DRIVING UNDER SUSPENSION BECAUSE THE DEFENDANT HAD VALID INSURANCE COVERAGE. 2 V. THE TRIAL COURT ERRED BECAUSE THE DEFENDANT- APPELLANT SHOULD NOT HAVE BEEN REQUIRED TO SHOW VALID INSURANCE COVERAGE UNLESS HE WAS CONVICTED OF AN UNDERLYING TRAFFIC OFFENSE. - 6 - assignments of error are rendered moot. App.R. 12(A)(1)(c). Judgment reversed and remanded. - 7 - This cause is reversed and remanded. It is, therefore, ordered that appellant recover of appellee his costs herein taxed. 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. JAMES D. SWEENEY, P.J., and PRYATEL*, J., CONCUR. DIANE KARPINSKI JUDGE *Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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 .