COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68997 CITY OF PARMA : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONALD PEYATT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION APRIL 25, 1996 CHARACTER OF PROCEEDING Criminal appeal from Parma Municipal Court Case No. 95-CRA-00129-1-1 JUDGMENT Vacated and remanded. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: WILLIAM MASON, ESQ. DAVID L. DOUGHTEN, ESQ. Law Director - City of Parma 4403 St. Clair Avenue, N.E. MARTA L. LISCYNESKY, Asst. Cleveland, Ohio 44103 Prosecuting Attorney 5750 West 54th Street Parma, Ohio 44129 - 2 - JAMES M. PORTER, J., Defendant-appellant Donald Peyatt appeals from his conviction in Parma Municipal Court following a guilty plea to a first degree misdemeanor of domestic violence (R.C. 2919.25). Defendant contends the court abused its discretion in accepting the plea which was not voluntarily and intelligently made and in considering matters outside the record when sentencing the defendant. We find merit to the appeal and reverse and remand for the reasons hereinafter stated. On January 20, 1995, defendant was charged with assaulting his wife on November 27, 1994, a first degree misdemeanor of domestic violence under R.C. 2919.25(A). The complaint asserted a prior conviction for the same offense on March 19, 1988, however, at the hearing it was determined his previous arrest did not result in a domestic violence conviction, but was reduced to disorderly conduct. Defendant pled not guilty at his arraignment. On February 23, 1995, the prosecutor agreed to amend the complaint to charge a violation of R.C. 2919.25(C), a fourth degree misdemeanor. However, the trial court refused to accept a plea to the reduced charge and set the case for trial April 4, 1995. On that date, the City offered the same reduced plea. Again, the trial court refused to accept the plea offer. Later that morning, the defendant pled guilty to the first degree misdemeanor of domestic violence. The trial court referred the case for a - 3 - presentence investigation. The defendant was represented by counsel throughout the proceedings. On May 10, 1995, the trial court sentenced defendant to the maximum sentence of six months. No time was suspended nor credit given for prior incarceration. A $100 fine was also imposed. During the sentencing hearing, the judge indicated that he had made some personal inquiries and that, based on his independent information, the defendant had "snowed" the probation department. The court also found defendant to be a "career man," one who would continue to engage in such matters as "stealing, dealing drugs, cheating, beating people." The defendant filed a timely notice of appeal. A stay of execution was granted by this Court on May 23, 1995. We will address the assignments of error in the order asserted. I. THE TRIAL COURT ABUSED ITS DISCRETION BY ACCEPTING THE APPELLANT'S INVALID PLEA. Defendant contends his guilty plea was not knowingly, voluntarily and intelligently made because the court did not apprise him of his privilege against self-incrimination which he was waiving by entering his plea and the court failed to define the nature of the offense to which he was pleading. Defendant contends the court failed to comply with Crim. R. 11(C)(2)(c) which deals with pleas in felony cases. However, Crim R. 11(C) does not apply to the defendant's plea as he did not plead guilty to a felony. Crim. R. 11(E) is the section applicable to the instant case which deals with misdemeanors for petty offenses as follows: - 4 - (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 plea without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty. A misdemeanor of the first degree is not a "serious offense" which is defined as "any misdemeanor for which the penalty prescribed by law includes confinement for more than six months." Crim. R. 2. The penalty for a misdemeanor of the first degree is "not more than six months." R.C. 2929.21. Therefore, defendant's plea is controlled by Crim. R. 11(E). Toledo v. Chiaverini (1983), 11 Ohio St.3d 43, 44. As in felony cases where a guilty plea is entered, misdemeanor cases in which a guilty plea is entered require a meaningful dialogue between the court and the defendant. Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216, 218; State v. Joseph (1988), 44 Ohio App.3d 212, 213; State v. Luhrs (1990), 69 Ohio App.3d 731, 735. Furthermore, a court need only substantially comply with the requirements of Crim. R. 11. State v. Stewart (1977), 51 Ohio St.2d 86, syllabus; State v. Strawther (1978), 56 Ohio St.2d 298, syllabus; State v. Hays (1982), 2 Ohio App.3d 376, 377. "When a trial court fails to adhere in every respect to the dictates of Crim. R. 11, but the record reveals that the court has `substantially complied' with the requirements of the Rule, absent a showing of prejudice to the rights of the defendant, the entered - 5 - plea will not be set aside." State v. Hays at 377. The dialogue between the court and the defendant prior to accepting the plea was as follows: THE COURT: Okay. We're now facing a one single count of Domestic Violence in violation of Section 2919.25, a Misdemeanor of the 1st Degree. Understood? MR. PEYATT: Yes, Sir. THE COURT: Alright. A Misdemeanor of the 1st Degree is punishable by a maximum fine of $1,000.00, a maximum jail sentence of 6 months in jail. Do you understand that? MR. PEYATT: Yes. THE COURT: Do you understand that entering a change of plea today, you're waiving your right to a Trial either to the jury we have waiting or to myself? MR. PEYATT: Yes. THE COURT: Okay. The *** along with waiving your right to a Trial you're waiving all the rights that go along with the trial, such as the right to be presumed innocent, the right to require the Prosecution to prove your guilt beyond a reasonable doubt, the right to compel witnesses to testify on your behalf with the subpoena process and the right to confront witnesses against you by having Mr. Dixon cross-examine our witnesses against you. MR. PEYATT: Yes. THE COURT: I understand you're waiving all of those rights? MR. PEYATT: Yes, Sir. THE COURT: Are you currently under the influence of any drugs or alcohol? MR PEYATT: No, Sir. - 6 - THE COURT: Okay. This is a knowing and voluntary act on your part? MR. PEYATT: Yes. THE COURT: What plea would you like to enter to one count of Domestic Violence, A Misdemeanor of the 1st Degree? MR. PEYATT: Guilty, Sir. (Tr. 5-6). It is evident from this colloquy that the court did not explain the elements of the offense with which defendant was charged. However, it is not necessary that the judge explain the elements of each of the offenses, or even ask the defendant specifically whether he understands the charges. In State v. Rainey (1982), 3 Ohio App.3d 441, 442 the court held as follows: In order for a trial court to determine that a defendant is making a plea with an understanding of the nature of the charge to which he is entering a plea, it is not necessary that the trial court advise the defendant of the elements of the crime, or to specifically ask the defendant if he understands the charge, so long as the totality of the circumstances are such that the trial court is warranted in making a determination that the defendant understands the charge. See, also State v. Swift (1993), 86 Ohio App.3d 407, 412-413 ("detailed recitation of the elements of the charge is not required. *** [B]urden upon trial court becomes greater once there is an indication that the defendant is confused"); State v. Zeda (Oct. 13, 1994), Cuyahoga App. No. 66524, unreported (trial court did not have to explain the elements of the charges as defendant - 7 - stated he understood the charges and that he had no questions about them); State v. Alamo (April 21, 1994), Cuyahoga App. No. 64096, unreported (trial court did not err in not explaining elements of offense to defendant as "this court has held *** that the trial court is not required to explain the elements of the offense charged when accepting a guilty plea"). Therefore, we find no reversible error in the court's omission to explain the elements of the charges. We do not agree, however, that the defendant was fully informed of the effect of his plea as required by Crim. R. 11(E) since the trial court failed to advise that, by doing so, defendant was waiving his constitutional right against self-incrimination. Although the court described a broad range of constitutional rights being waived as an effect of the plea, probably through inadvertence, the trial court failed to mention defendant's Fifth Amendment right against self-incrimination. Without alluding to the Fifth Amendment waiver, however briefly and however phrased, it cannot be said that the court substantially complied with Crim. R. 11(E) requiring that the court inform the defendant as to the effect of his plea. See Warrensville Township v. Christmas (Feb. 12, 1987), Cuyahoga App. No. 51612, unreported at 3, citing State v. Sturm (1981), 66 Ohio St.2d 483 (in accepting a plea of guilty under Crim. R. 11(E) to a misdemeanor offense, the "total omission" of the trial court to advise the defendant of the constitutional - 8 - right against self-incrimination renders the plea "fatally ineffective requiring reversal"). Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. State v. Nero (1990), 56 Ohio St.3d 106, 108, citing State v. Stewart (1977), 51 Ohio St.2d 86. There is no basis in the record of the plea hearing before us to conclude that defendant was informed of his privilege against self-incrimination, by substantial compliance or otherwise. We are compelled to sustain Assignment of Error I in part. We vacate the plea and conviction thereon and remand for further proceedings consistent with this opinion. Assignment of Error II is moot and will not be addressed. App. R. 12(A)(1)(c). Judgment vacated and remanded. - 9 - It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate be sent to Parma Municipal 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 DYKE, J., CONCUR. JAMES M. PORTER JUDGE 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 .