COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69201 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN L. HOLLIS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Hts. Municipal Court Case No. 95-CRB-0056 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: KIM T. SEGEBARTH, ESQ. PAUL MANCINO, JR., ESQ. Cleveland Heights Prosecutor 75 Public Square, Suite #1016 40 Severance Circle Cleveland, Ohio 44113-2098 Cleveland Heights, Ohio 44118 - 2 - DYKE, J.: Appellant appeals from the municipal court's denial of appellant's motion to withdraw his no contest plea to a domestic violence offense. Appellant faced two counts of domestic violence in January of 1995, one stemming from an incident involving a gun in December 1994 and the other from an incident in January involving a threat with a knife. The trial court gave appellant the opportunity to accept the prosecution's offer of a plea negotiation whereby the State would dismiss one of the counts if appellant pleaded no contest to the other. The court carefully and thoroughly explained all of the options available to appellant, who was without counsel at the January 26th hearing. The court enumerated the rights appellant would waive by entering the no contest plea and made certain that he understood that he could enter a not guilty plea at any time. After appellant entered his plea of no contest, the court heard the facts as presented by the prosecution. The victim of both incidents was also allowed to speak in mitigation of appellant's offense. The court found appellant guilty. On March 20th the municipal court sentenced appellant to six months imprisonment and a $1000.00 fine. The court then suspended all six months of the sentence and all but $150.00 of the fine. Appellant was placed on probation, with one of the conditions being that he refrain from threatening, harassing and verbally abusing his wife. - 3 - Ten days after sentencing appellant used a gun to fire approximately eight shots at his wife, who ran in terror through the house, finally jumping from the third floor attic through a hole in the attic floor into a second floor bedroom and running for her life. She sustained only two gunshot wounds from the assault. Appellant was indicted for attempted murder in the Court of Common Pleas. The Cleveland Heights Municipal Court then held a series of hearings to revoke appellant's probation based upon the shooting of his wife. Appellant was unrepresented by counsel at the first hearing, although he had had ample opportunity to speak with his attorney about the pending probation revocation. The second hearing was held May 1, 1995. Appellant's attorney was present but unprepared for the probation revocation proceedings. Instead he entered a motion to withdraw the no contest plea to the underlying domestic violence offense, which was denied. Probation was finally revoked at the third hearing on June 22, 1995. The original sentence was reinstated. Appellant filed this appeal asserting four assignments of error. I DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ACCEPTED A PLEA OF NO-CONTEST FROM THE DEFENDANT WHO WAS UNREPRESENTED BY COUNSEL BECAUSE OF THE COURT AND THEREAFTER REFUSED THE DEFENDANT LEAVE TO WITHDRAW HIS PLEA OF NO-CONTEST. - 4 - Appellant argues that the active participation of the court in the negotiation of his plea at the January 26th hearing deprived the plea of its voluntary character. Appellant's argument is not well taken. Appellant cites to State v. Byrd (1980), 63 Ohio St.2d 288 for the correct proposition that: A trial judge's participation in the plea bargaining process will be carefully scrutinized to determine if it affected the voluntariness of the defendant's plea. State v. Byrd, supra, at the syllabus. The trial court judge in Byrd called a private meeting with the defendant's mother and sister to persuade them that it would be best if they could convince the defendant to plead guilty to the murder charge against him. The Ohio Supreme Court, not surprisingly, found the plea to have been entered involuntarily given the trial judge's coercive tactics in actively negotiating the plea. We can safely distinguish the present case from Byrd. The trial court carefully explained to appellant the nature of the plea proceedings. She gave him an explanation of the plea offered by the prosecution but repeated at several points that the decision was appellant's to make. The trial judge also made it clear that it was an option to enter the plea of not guilty and thereby avoid waiving his constitutional rights. We do not find that the judge took an active role in negotiating a no contest plea with appellant, nor was any intimidation used to coerce the plea. - 5 - Appellant's first assignment of error is overruled. II DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ACCEPTED A PLEA OF NO-CONTEST WITHOUT DETERMINING WHETHER THE DEFENDANT KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL. Appellant claims that the court failed to inquire to a sufficient degree as to whether he made a knowingly and intelligent waiver of his right to legal representation. Appellant's claim is without merit. The trial court made an extensive inquiry of appellant to ascertain the voluntary nature of the waiver of his right to counsel. The judge engaged in a lengthy colloquy with appellant to inform him that he can waive the right to counsel. However, she counseled him, "I don't know if you should do that." (TR. p.2). At one point she asked him directly, "[D]o you want a lawyer appointed to you?" (TR. p.7). After more explication of his constitutional rights, including another reference to his right to legal representation, the court asked appellant if he waived his right to a lawyer. Appellant answered affirmatively. Appellant's due process rights were well protected in the proceeding. Appellant's second assignment of error is overruled. III DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN A NO- CONTEST PLEA WAS ACCEPTED WHEN IT WAS CLEAR THAT THE DEFENDANT SHOULD HAVE PLED NOT GUILTY. Appellant asserts that because the facts surrounding the incident were disputed during the hearing, the court abused its - 6 - discretion by accepting the no contest plea. In effect, appellant argues, he entered a not guilty plea by presenting facts to the judge which supported a defense to the offense charged. We are not persuaded by appellant's assertions. When a no contest plea is entered, the prosecution then recites the requisite facts to support the elements of the indicted offense. A plea of no contest is an admission of the facts alleged in the indictment. Crim.R. 11(B)(2). The prosecution is relieved of the burden of presenting evidence to prove the defendant guilty beyond a reasonable doubt. State v. Thorpe (1983), 9 Ohio App. 3d 1, 9 OBR 1, 457 N.E.2d 912. A conviction will be improper only when statements of factual matter presented to the court in support of the indictment negate the existence of an essential element of the offense charged. State v. Mercure (Jan. 29, 1986), Lorain App. No. 3898, unreported; Cleveland v. Technisort, Inc. (1985), 20 Ohio App. 3d 139, 20 OBR 172, 485 N.E. 2d 294. State v. Stow Veterans Assn. (1987), 35 Ohio App.3d 45, 46. The offense to which appellant entered a plea was a count of domestic violence, entailing a knowing attempt to cause physical harm to a family member. R.C. 2919.25(A). The prosecution recited facts which supported this offense. Appellant's wife had reported to the police at the time of the incident that appellant slashed at her with a knife and cut her mink coat. While the police were present appellant threatened his wife that he would crack her in the head with a fireplace poker. The court made its finding of guilty after these facts were presented. Mrs. Hollis made an attempt to present the incident in a somewhat less damaging light by implicating her daughter as partly - 7 - responsible for the altercation. However, no statement was presented which would exonerate appellant and lead the trial court to suspect that it was making a mistake in accepting the no contest plea. Appellant's third assignment of error is overruled. IV DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO ALLOW THE DEFENDANT TO WITHDRAW HIS PLEA OF NO-CONTEST. Appellant argues that the trial court should have granted his motion to withdraw his no contest plea at the hearing on May 1, 1995 because of the many infirmities of the January 26th proceeding. Appellant claims that he did not understand the proceeding during which his plea was taken and furthermore was misled. Appellant's assertions are without merit. Appellant was represented by counsel at the May 1, 1995 probation revocation hearing. Rather than being prepared to proceed on the issue of appellant's probation violation, defense counsel presented appellant's motion to withdraw the no contest plea he had entered. The trial court denied the post-sentence motion to withdraw the plea. Crim.R. 32.1 provides that the standard for allowing a withdrawal of a plea of guilty or no contest is to correct a manifest injustice: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the - 8 - judgment of conviction and permit the defendant to withdraw his plea. Appellant failed to support his motion to withdraw with any example of manifest injustice. His appellate brief vaguely alleges infirmities which occurred at the hearing. We have previously examined the hearing for any improprieties which may have rendered the plea involuntary in the first three assignments of error. We find that the court was thorough in determining that appellant made a knowing and intelligent plea. Appellant further alleges that he was misled at some point in the hearing. This assertion is not supported by any specific instance where appellant can state that he was promised something in return for his plea, or was misled in any other way. Nor can we find an example of any misleading act on the part of the court in the record. Appellant was not denied due process by the court's refusal to allow him to withdraw the no contest plea. Appellant failed to point out any manifest injustice which would justify allowing a withdrawal of his plea. Appellant's fourth assignment of error is overruled. The trial court's acceptance of appellant's no contest plea and subsequent finding of guilt is affirmed. The court's denial of appellant's post-sentence motion to withdraw his plea is also affirmed. - 9 - 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 Cleveland Heights Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., AND DAVID T. MATIA, J., CONCUR. ANN DYKE JUDGE 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, .