COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69138 : CITY OF NORTH ROYALTON : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : DENA A. KOZLOWSKI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT APRIL 18, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court Case No. 95-CRB-00680 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS F. GREVE, ESQ. PAUL MANCINO, JR., ESQ. Assistant Law Director 75 Public Square 55 Public Square, #1775 Suite 1016 Cleveland, Ohio 44113 Cleveland, Ohio 44113-2098 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Dena A. Kozlowski, appeals her convictions for assault and disorderly conduct and assigns the following errors for our review: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN SHE WAS CONVICTED OF CRIMINAL OFFENSES BASED UPON COMPLAINTS WHICH FAILED TO ALLEGE OFFENSES. II. DEFENDANT'S PLEA OF NO CONTEST WAS UNCONSTITU- TIONAL BECAUSE THE RECORD DOES NOT AFFIRMATIVE- LY DEMONSTRATE DEFENDANT WAS ADVISED OF HER CONSTITUTIONAL RIGHTS WHEN THERE WAS NO RECORD OF THE PROCEEDINGS ON THE NO CONTEST PLEA. III. DEFENDANT WAS SUBJECTED TO A CRUEL AND UNUSUAL PUNISHMENT WHEN DEFENDANT WAS SENTENCED FOR A CONDITION OF ALCOHOLISM. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On March 8, 1995, Dena Kozlowski was arrested and charged with three counts of assault, one count of resisting arrest, and one count of disorderly conduct. The complaints include the names of the charges and their corresponding North Royalton Codified Ordinance Sections. Each complaint also contained the following reference: "(see incident report)." Attached to and filed with the complaints were three Incident Reports and several statements of witnesses. On April 25, 1995, Kozlowski entered a plea of no contest to one count of assault and one count of disorderly misconduct. She was found guilty. The remaining charges were dismissed, and her -3- case was continued for sentencing. At the sentencing hearing, Kozlowski admitted that, while this case was pending, she was arrested for being intoxicated. For assault, she was sentenced to 90 days of incarceration with 45 days suspended and fined $100 for the assault charge. For disorderly conduct, she was also sentenced to 30 days of incarceration and fined $50. She was also given 18 months probation for the suspended term of incarceration and ordered to attend 3 AA meetings per week for a total of one year as a condition of probation. Kozlowski now appeals. In her first assignment of error, Kozlowski argues the complaints for assault and disorderly conduct were invalid because they did not state all of the essential elements of the offenses. The filing of a valid complaint is a necessary prerequisite to a court obtaining subject matter jurisdiction. State v. Bishop (Dec. 3, 1993), Clark App. No. 3070, unreported. See, also, State v. Miller (1988), 47 Ohio App.3d 113. Therefore, the question of whether a complaint is valid is a question of law, and this court's standard of review is de novo. Crim.R. 3 provides: "The complaint is a written statement of the essential facts constituting the offense charged. It shall also state the numerical designation of the applicable statute or ordinance. It shall be made upon oath before any person authorized by law to administer oaths." "The formal criminal charge whether by an indictment, an information, or a complaint under Criminal Rule 3, must contain the constituent elements of a criminal offense. While all the specific facts relied upon to sustain the -4- charge need not be recited, the material elements of the crime must be stated." State v. Burgun (1976), 49 Ohio App.2d 112 at paragraph one of the syllabus. The purpose of the complaint is provide the defendant with reasonable notice of the nature of the offense. State v. Sweeney (1991), 72 Ohio App.3d 404. See, also, Cleveland Heights v. Hocevar (Jan. 21, 1993), Cuyahoga App. No. 61878, unreported. In this case, the complaints state the names of the offenses, the corresponding ordinance sections, the location, date, and time of the offenses, and incorporate by reference the incident reports taken by the police. Although the complaints do not state all of the elements of the offenses, the incident reports, which were referred to, attached to, and filed with the complaints, stated all of the facts necessary to provide the defendant with reasonable notice of the nature of the offense. This court recognizes that it is a better practice for police officers issuing citations to put all of the essential elements in the complaint. Not every incident report will contain all of the essential elements of the offense. However, in this case, where the police reports were incorporated by reference into the face of the complaint, and the facts reveal all of the essential elements of the offenses, the complaint is valid within the meaning of Crim.R. 3. In her second assignment of error, Kozlowski argues her no contest plea was unconstitutional because the record does not affirmatively demonstrate her plea was entered voluntarily, intelligently, and knowingly in compliance with Crim.R. 11(E). -5- "Crim.R. 11(E) requires that in a misdemeanor case the record must affirmatively demonstrate a plea of no contest was entered voluntarily, intelligently, and knowingly. The trial court must explain the effect of a no contest plea and its duty is not discharged by merely handing the defendant a document entitled "waiver of rights" which is a list of the rights waived by the plea." State v. Joseph (1988), 44 Ohio App.3d 212. Analysis of whether a trial court has substantially complied with Crim.R. 11 requires a review of the transcript or a statement of proceedings at the plea hearing. State v. Spates (1992), 64 Ohio St.3d 549. Where a transcript of the plea hearing is unavailable, an appellant has an obligation to provide a statement of proceedings within the meaning of App.R. 9(C), (D), or (E). State v. Faison (Dec. 15, 1994), Cuyahoga App. Nos. 67217, 67218, unreported. Absent a transcript, statement of proceedings, or a good faith effort on the part of the appellant to produce an adequate record, substantial compliance with Crim.R. 11 and the waiver of defendant's constitutional rights must be presumed. In this case, Kozlowski did not file a transcript, nor a statement of proceedings from the plea hearing. Although her brief suggests there was no transcript available from the plea hearing, there is no indication in the record, whatsoever, that Kozlowski made a good faith effort to produce a statement of proceedings under App.R. 9(C), (D), or (E). Accordingly, this court must presume the trial court accepted Kozlowski's no contest plea in -6- substantial compliance with Crim.R. 11 and advised Kozlowski of her constitutional rights. In her third assignment of error, Kozlowski argues it was cruel and unusual punishment to sentence her to a term of incarceration because she was an alcoholic. A sentence does not violate the Eight Amendment right against cruel and unusual punishment unless it is so grossly disproportionate to the offense as to shock the sense of justice in the community. State v. Chaffin (1972), 30 Ohio St.2d 13; State v. Jarrells (1991), 72 Ohio App.3d 730. In this case, Kozlowski was sentenced to 90 days with 45 days suspended for assault, a first degree misdemeanor, which carries a maximum term of incarceration of six months. She was also sentenced to 30 days for disorderly conduct, a fourth degree misdemeanor, which carries a maximum term of incarceration of 30 days. Because her sentences were within statutory limits, they presumably did not constitute cruel and unusual punishment. See State v. Juliano (1970), 24 Ohio St.2d 117, 120. Kozlowski, however, argues it was cruel and unusual punishment to incarcerate her merely because of her alcoholism. While alcoholism is not a crime, voluntary intoxication is not a defense to any crime. See State v. Wolons (1989), 44 Ohio St.3d 64, 68. Kozlowski was not punished for being an alcoholic; she was punished for her behavior while intoxicated. Kozlowski's alcoholism does not justify her disorderly conduct and the assault of several police officers while she was intoxicated. In reviewing the -7- offenses for which she was charged, the terms of incarceration imposed, and the facts and circumstances of the case, this court does not find the sentence imposed shocks the sense of justice of the community. Accordingly, the sentence imposed in this case was not cruel and unusual punishment. Judgment affirmed. -8- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the 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. Exceptions. PORTER, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 journaliza- .