COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69089 CITY OF CLEVELAND : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : SARABJIT BAWA : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 95-TRD-18067. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Carolyn W. Allen Chief Prosecutor City of Cleveland Maura O'Neill Jaite Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44114 For Defendant-appellant: Gerald M. Smith, Esq. Smith & Smith 110 Moore Road Avon Lake, Ohio 44012 - 2 - PER CURIAM: Defendant-appellant Sarabjit Bawa appeals from his conviction for speeding in violation of R.C. 4511.21(D)1. The court fined the appellant one hundred dollars and ordered that he pay costs. On April 4, 1995, the appellant was issued a speeding ticket. He entered a plea of not guilty and on May 10, 1995, he appeared in front of the Cleveland Municipal Court. The appellant was found guilty and the court immediately imposed sentence by assessing a fine. The record contains a receipt dated May 10, 1995, for the sum of one hundred fifty-six dollars. The receipt bears the appellant's lower court case number and the docket reflects that the fine and the court costs were paid. The appellant sets forth two assignments of error: I THE TRIAL COURT ERRED IN CHANGING APPELLANT'S PLEA OF NOT GUILTY TO NO CONTEST WITHOUT FIRST DETERMINING WHETHER OR NOT HE UNDERSTOOD AND WAIVED HIS CONSTITUTIONAL RIGHTS. II THE TRIAL COURT ERRED IN GOING FORWARD WITH THE TRIAL AFTER APPELLANT ASSERTED THAT HE WAS REPRESENTED BY COUNSEL. The Ohio Supreme Court has consistently held that "where a criminal defendant, convicted of a misdemeanor, voluntarily satisfies the judgment imposed upon him or her for that offense, an appeal from the conviction is moot unless the defendant has offered evidence from which an inference can be drawn that he or she will suffer some collateral legal disability or loss of civil rights - 3 - stemming from that conviction." State v. Golston (1994), 71 Ohio St.3d 224, citing to State v. Wilson (1975), 41 Ohio St.2d 236, and State v. Berndt (1987), 29 Ohio St.3d 3. Based upon clear dictates from the Supreme Court, the appellant's assignments of error are overruled. Case dismissed. - 4 - It is ordered that appellee recover of appellant its costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. LEO M. SPELLACY, PRESIDING JUDGE JAMES D. SWEENEY, JUDGE SARA J. HARPER, JUDGE, DISSENTS WITH DISSENTING OPINION ATTACHED. 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 order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68316 CITY OF CLEVELAND : : DISSENTING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION SARABJIT BAWA : : Defendant-appellant : : DATE: JUNE 13, 1996 SARA J. HARPER, J., DISSENTING: I respectfully dissent from the dismissal of appellant's appeal based upon the rule of law that an appeal is moot once a defendant, charged and convicted of a misdemeanor, pays the fine imposed by the trial court, unless he or she offers evidence of a collateral legal disability or loss of civil rights. This case demonstrates the infirmities of the justice system, a system which is intended to protect the constitutional rights of the citizens of this state, including those who are accused of committing crimes, both felonies and misdemeanors. Specifically, this case amply illustrates how an individual is denied his right to an appeal through no fault of his own. I fully recognize the line of cases which established the mootness rule, including the most recent, State v. Golston (1994), 71 Ohio St.3d 224. I also concede that I agreed in the past to -2- dismiss appeals pursuant to the rule. However, noting my reluctance to do so, and especially in light of the facts of the present case, I am compelled to discuss the rule and how I will no longer abide by it, even if it means that I am to dissent on all future dismissals for mootness. Appellant entered a plea of not guilty in Cleveland Municipal Court on April 19, 1995. He appeared before the court again on May 10, 1995, at which time the following exchange occurred between appellant and the trial court: THE COURT: Mr. Bawa, you're charged with speeding. You still maintain your not guilty plea? THE DEFENDANT: Yes. THE COURT: Where were you? THE DEFENDANT: I was caught up in traffic. THE COURT: All right. So we're going to have you plead no contest. I'm going to hear from the officer and I'm going to hear from you, and then I'm going to make a determination. (Emphasis added.) After the officer's testimony, the trial court addressed appellant as follows: THE COURT: All right. Mr. Bawa, what do you have to say? THE DEFENDANT: My lawyer is not here right now. THE COURT: You have a lawyer? THE DEFENDANT: Yes, I do. THE COURT: Why didn't you tell me you have a lawyer? THE DEFENDANT: I don't know. THE COURT: Who is your lawyer? -3- THE DEFENDANT: Gerald Smith. THE COURT: Well, it's too late. You just tell me what happened. THE DEFENDANT: Whatever he says is what happened. THE COURT: What he say happened is true? Is that what you're saying? THE DEFENDANT: Yes. THE COURT: Okay. Defendant found guilty. The defendant is fined $100 and costs. When are you going to pay it, today? THE DEFENDANT: Do you except [sic] checks, personal checks? THE COURT: Yes. THE DEFENDANT: I can pay it today. THE COURT: Sit outside and they'll take you to the third floor to pay this fine. (Emphasis added.) The record discloses that appellant, in fact, paid his fine and the court costs on that day, May 10, 1995. Appellant filed his notice of appeal on June 1, 1995, well within the thirty-day time limitation imposed by App.R. 3(A) and 4(A). The Ohio Constitution does not enumerate a "right" to an appeal. However, Section 3(B)(1)(f), Article IV, Ohio Constitution authorizes the establishment of an appellate court system with jurisdiction "[i]n any cause on review as may be necessary to its complete determination." Ohio has thus "adopted Appellate Rules that make every litigant entitled to '[a]n appeal as of right *** by filing a notice of appeal *** within the time allowed ***.' App.R. 3(A)." Atkinson v. Grumman Ohio Corp. (1988), 37 Ohio St.3d 80, 84-85. -4- Through the provision of an appellate process, litigants are granted a property interest in the right to appeal. Id., 85. Litigants cannot be deprived of this right without due process of law. Id. A state furnished appellate process must also comply with equal protection constitutional dictates. Id., 84, citing Griffin v. Illinois (1956), 351 U.S. 12, 18. Due process has been held to protect "*** those fundamental principles of liberty and justice which lie at the base of our civil and political institutions ***," Hurtado v. California (1884), 110 U.S. 516, 535, and to guarantee those procedures which are required for the "*** protection of ultimate decency in civilized society," Adamsom v. California (1947), 332 U.S. 46, 61 (Frankfurter, J., concurring). On a more practical level, procedural due process places upon the government the duty to give reasonable notice, and an opportunity to be heard, to those whose interests in life, liberty or property are adversely affected by governmental action. Tribe, American Constitutional Law (2 Ed. 1988) 683, Section 10-8. (Emphasis added.) Id., 85. As stated supra, appellant's right to an appeal is a property interest which is protected by due process and equal protection guarantees. Since the appellate rules fail to advise misdemeanor defendants that their right to appeal may be lost if they voluntarily paid their fines, where is the due process? Moreover, simply because appellant chose to pay his fine, and he was not charged or convicted of a serious offense, or more importantly a felony, it does not follow that he was not just as interested as a convicted felon to challenge his conviction for any reason. The prevention of appellate court congestion is certainly one reason for the mootness rule. However, often enough this court is -5- presented with frivoulous appeals from felony convictions. Who is to say that misdemeanor defendants may not on occasion have far more valid reasons for an appeal, an arguably potential equal protection problem. I am not chastising the majority for applying the mootness rule to the present case. The majority is merely following the dictates of the Supreme Court of Ohio. However, the application results in the non-review of the trial court's treatment of appellant, a review of which reveals quite disturbing actions on behalf of the court. Appellant was charged with a violation of R.C. 4511.21(D)(1), a misdemeanor of the fourth degree under R.C. 4511.99(D)(2). Since the offense is a "petty offense," Crim.R. 2, Crim.R. 11(E) is applicable. Crim.R. 11(E) parallels Traf.R. 10(D) in relevant part, and reads as follows: (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. The counsel provisions of Rule 44(B) and (C) apply to this subdivision. Failure to follow the requirements of Traf.R. 10(D) amounts to reversible error. See Cuyahoga Falls v. Simich (1982), 5 Ohio App.3d 10; Broadview Heights v. Baccellieri (Aug. 13, 1992), Cuyahoga App. No. 60661, unreported; Cleveland v. Holcomb (Sept. 29, 1988), Cuyahoga App. Nos. 54411, 54569, unreported; Cleveland v. Baker (March 5, 1987), Cuyahoga App. No. 51774, unreported; see, -6- also, Cleveland v. Johns (Sept. 22, 1994), Cuyahoga App. No. 65747, unreported; Cleveland v. Harris (Dec. 12, 1991), Cuyahoga App. No. 59637, unreported. Therefore, the trial court's failure in the present case to inform appellant of the effect of his no contest plea to a petty offense is a violation of Crim.R. 11(E) and reversible error. Baccellieri; Baker; Cleveland v. Campbell (Apr. 16, 1981), Cuyahoga App. No. 43114, unreported. Since the trial court completely ignored Crim.R. 11(E) mandates by entering appellant's no contest plea on its own, the error is presumed prejudicial. State v. Hays (1982), 2 Ohio App.3d 376, 377; Baccellieri; see State v. Mascaro (1991), 81 Ohio App.3d 214, State v. Joseph (1988), 44 Ohio App.3d 212 and Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216 (Crim.R. 11[E] requires the record to affirmatively demonstrate a plea of no contest was entered voluntarily, intelligently and knowingly); Independence v. Vicario (Sept. 28, 1995), Cuyahoga App. No. 67741, unreported and Garfield Heights v. Lewis (July 28, 1994), Cuyahoga App. No. 64947, unreported (constitutional rights attach unless validly waived in misdemeanor cases even if possible term of imprisonment is less than six months). Furthermore, Crim.R. 11(E) and Traf.R. 10(D) incorporate the counsel provisions of Crim.R. 44(B) and (C). These sections provide: (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 -7- 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 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. In the within case, appellant should have been guaranteed his Sixth Amendment right to counsel because the trial court could have imposed sentence on the fourth degree misdemeanor. See Argersinger v. Hamilton (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; State v. Wagner (1992), 80 Ohio App.3d 88, 92; R.C. 2929.21(B)(4). Both in serious and petty offense cases, the record must show a knowing, intelligent and voluntary waiver of counsel. Wagner, 92; Crim.R. 44(C); see State v. Gibson (1976), 45 Ohio St.2d 366. The trial court, however, totally disregarded appellant's right to counsel as demonstrated by the foregoing "dialogue", a term I use loosely, since the trial court not only violated the applicable rules, but appellant's constitutional right to counsel as well when it stated, "it's too late." Compare, Chapman v. Maxwell (1965), 1 Ohio St.2d 176 and State v. Moton (Nov. 18, 1993), Cuyahoga App. Nos. 61918, 61919, 61920, unreported (counsel's absence at plea hearing does not invalidate plea where record reveals defendant acted upon advise of counsel). Even though appellant was not sentenced to a term of imprisonment, the record more than illustrates how the trial court flagrantly trounced his constitutional rights. See Garfield Heights v. Gipson (Nov. 22, 1995), Cuyahoga App. No. 68849, unreported. -8- Under the circumstances of this case, where a defendant has counsel, but the trial court decides on its own that he is not entitled to counsel and the court then proceeds to inform the defendant about payment of the fine and costs, and tells him that it could be done immediately, the defendant has no idea that he waives his right to an appeal by the payment of the fine and costs. Appellant had no chance to seek a stay of sentence in order to defeat a claim of mootness. See Middleton v. Allen (1989), 63 Ohio App.3d 443; State v. Benson (1986), 29 Ohio App.3d 109. Even if the trial court did not totally ignore the criminal rules and appellant's constitutional rights, I would still find that appellant is entitled to his appeal based upon my earlier discussion of appellate review, due process and equal protection. .