COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69655 CITY OF PARMA : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT ANNOTICO : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JAN. 30, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Parma Municipal Court : Case No. 95-CRA-1499 JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: William D. Mason, Esq. Paul Mancino, Jr., Esq. Chief Prosecutor 75 Public Square, Suite #1016 City of Parma Cleveland, Ohio 44113-2098 Martha L. Liscynesky, Esq. Asst. Parma Prosecutor 5750 W. 54th Street Parma, Ohio 44129 -2- HARPER, P.J.: Robert Annotico, defendant-appellant ("appellant"), appeals from the Parma Municipal Court's judgment entry overruling his motion to withdraw his guilty plea to a charge of domestic violence in violation of R.C. 2919.25, a misdemeanor of the first degree. Appellant submits that he was denied due process of law because there is no affirmative demonstration that he was advised of his constitutional rights. Furthermore, the trial court abused its discretion when it overruled his motion to withdraw his guilty plea. A complaint was filed in Parma Municipal Court on July 6, 1995. Appellant was charged with domestic violence, in violation of R.C. 2919.25, a fourth-degree felony. The complaint alleged that appellant attempted to cause physical harm to his wife, Mrs. Annotico, by choking her on or about July 5, 1995. The complaint include a prior conviction in Cleveland Municipal Court for domestic violence. Appellant appeared in Parma Municipal Court where he was temporarily represented by Mr. James Gallagher. Mr. Gallagher informed the court that he would handle the arraignment and bond, as well as a temporary protection order requested by Mrs. Annotico. The trial court granted Mrs. Annotico's request for a temporary protection order against appellant. The trial court set a preliminary hearing for July 14, 1995. On August 17, 1995, appellant appeared in court with Mr. Gallagher. The trial court's journal entry indicates that the -3- prosecutor motioned to amend the complaint to Domestic Violence, a violation of R.C. 2919.25, a misdemeanor of the first degree. Appellant's plea of guilty to violating R.C. 2919.25 was accepted by the trial court. There is no transcript of the August 17, 1995 proceedings. The sentencing hearing was set for September 20, 1995. Appellant was present along with Mr. Gallagher. Appellant moved to withdraw his guilty plea. The trial court denied appellant's motion to withdraw his guilty plea. Also, appellant's counsel informed the trial court of appellant's substance abuse problem. The trial judge responded that he reviewed appellant's criminal record and was aware of the substance abuse problem. Subsequently, the trial court imposed a fine of $500 and court costs. In addition, appellant was sentenced to six months in jail. Appellant was then remanded to the custody of the Parma Police Department to begin serving his sentence. Appellant moved for a stay of execution of sentence. The trial court denied appellant's motion for a stay of execution. Appellant timely appeals and raises the following assignments of error for this court's review: I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED BY THE COURT WHERE THE RECORD DOES NOT AFFIRMATIVELY DEMONSTRATE THAT DEFENDANT WAS ADVISED OF HIS CONSTITUTIONAL RIGHTS AS THERE IS NO RECORD OF THE PROCEEDINGS OF THE GUILTY PLEA. II. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO WITHDRAW HIS PLEA. -4- III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT AFTER DETERMINING THAT DEFENDANT WAS ADDICTED TO DRUGS FAILED TO ADVISE HIM AS TO HIS ELIGIBILITY FOR DRUG DEPENDENCY TREAT- MENT. In the first assignment of error, appellant charges he was denied due process. Appellant contends that without a record of the proceedings, there is no affirmative demonstration that he was advised of his constitutional rights. Appellant submits the proceedings were not recorded as required by Crim R. 22. Crim.R. 22 pertains to the recording of proceedings. The rule provides: In serious offense cases all proceedings shall be recorded. In petty offense cases all waivers of counsel required by Rule 44(B) shall be recorded, and if requested by any party all proceedings shall be recorded. Proceedings may be recorded in shorthand, or stenotype, or by any other adequate mechanical, electronic or video recording device. Upon review of the facts, we find that Crim.R. 11(E) governs the disposition of the case sub judice. Crim.R. 2(C) defines "a serious offense" as any felony, and any misdemeanor for which the penalty prescribed by law includes confinement for more than six months. Misdemeanors having a penalty of six months or less are considered "petty offenses" pursuant to Crim.R. 2 and 11(E). Toledo v. Chiaverini (1983), 11 Ohio App.3d 43. Crim.R. 11(E) provides 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 pleas without first informing the defendant of the effect of the plea of guilty, no contest and not guilty. -5- The counsel provision of Rule 44(B) and (C) apply to this subdivision. Misdemeanor cases in which a guilty plea is entered require a meaningful dialogue between the court and the defendant, similar to instances where a guilty plea is entered in felony cases. Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216. A trial court's failure to inform a defendant of the effect of his plea to a petty offense is a violation of Crim.R. 11(E) and reversible error. Broadview Heights v. Baccellieri (Aug. 13, 1992), No. 60661, unreported. Prior to accepting a guilty plea from a criminal defendant, the trial court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right to compulsory process of witnesses. State v. Ballard (1981), 66 Ohio St.2d 473. In the present case, the record contains a journal entry to indicate that appellant was present when the prosecutor motioned to amend the complaint to a misdemeanor in the first degree. Appellant waived receiving a complaint and entered a guilty plea to a charge of domestic violence, a misdemeanor in the first degree. The record is devoid of a transcript to demonstrate that the trial court engaged in a meaningful dialogue with appellant to inform him of the effect of his guilty plea prior to accepting his guilty plea. The journal entry alone is insufficient to demonstrate that the trial court complied with the requirements imposed by Crim.R. -6- 11. Given the foregoing, the trial court committed reversible error. Accordingly, appellant's assignment of error is sustained. In the second assignment of error, appellant attacks the trial court's decision to overrule his motion to withdraw his plea. Crim.R. 32.1 pertains to the withdrawal of guilty pleas. Crim.R. 32.1 provides: 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 judgment of conviction and permit the defendant to withdraw his plea. Generally, the withdrawal of a guilty plea prior to sentencing is to be allowed freely and treated with liberality. Eastlake v. Deniro (1984), 21 Ohio App.3d 102; State v. Peterseim (1980), 68 Ohio App.2d 211. The decision as to whether the guilty plea will be withdrawn lies within the sound discretion of the trial court. State v. Smith (1977), 49 Ohio St.2d 261. A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. State v. Xie (1992), 62 Ohio St.3d 521, paragraph two of the syllabus. An appellate court's review of such a denial is limited to determining whether the trial court abused its discretion. Peterseim. An abuse of discretion involves more than an error of law or judgment, it connotes an attitude on the part of the court that is unreasonable, unconscionable, or arbitrary. State v. Adams (1980), 62 Ohio St.2d 151. -7- The following is the test of a trial court's denial of a Crim.R. 32.1 motion: A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by a highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave a full and fair consideration to the plea withdrawal request. State v. Grigsby (1992), 80 Ohio App.3d 291, citing Peterseim, supra, paragraph three of the syllabus. At the sentencing hearing, appellant's counsel engaged in the following dialogue with the trial court: MR. GALLAGHER: Your Honor, for the record, as I indicated to the Court earlier, we would like to enter a Motion to Withdraw a previous entered plea of guilty to the charge. THE COURT: Basis for that Motion? MR. GALLAGHER: Your Honor Mr. Annotico is going through a Domestic Relations case where he, as a result of this case, has not been allowed to see his child for two months and it will perhaps continue due to a conviction on this case. Plus the potential penalties involved in this case, which he is not aware of, or I suppose he was aware, but had not fully sunken in at the time of entering the pleas would be our reason. THE COURT: Okay. I'm going to deny the Motion to Withdraw your plea. MR. GALLAGHER: UNINTELLIGIBLE. THE COURT: Basis for withdrawing the plea is based upon guilt or innocence, not based on sentencing. It's this Court's belief that the Motion is based on brief discussions you had in chambers with my counsel UNINTELLIGIBLE what the Court had in mind for sentence. (TR. 2). -8- After the foregoing dialogue, the trial court denied appellant's motion to withdraw his previously entered guilty plea. In the present case, appellant was represented by counsel. However, with respect to the second prong of Peterseim, the record does not demonstrate that appellant was afforded a full hearing before he entered his guilty plea. Moreover, there is no evidence that indicates the trial court complied with Crim.R. 11. Applying the third prong of Peterseim, the trial court failed to provide appellant with a complete and impartial hearing on the motion. Given the foregoing, the trial court abused its discretion when it denied appellant's request to withdraw the previously entered guilty plea. Accordingly, appellant's assignment of error is sustained. In the third assignment of error appellant contends that he was denied due process when the trial court failed to advise him of his eligibility for substance abuse treatment as a condition for probation in light of his drug dependency. R.C. 2951.04 pertains to conditional probation for treatment and rehabilitation of drug dependent persons. R.C. 2951.04 states: If the court has reason to believe that an offender convicted of a felony or misdemeanor is a drug dependent person or is in danger of becoming a drug dependent person, the court may, and when the offender has been convicted the court shall, advise the offender that he has a right to request conditional probation for purposes of treatment and rehabilitation. (Emphasis added). It has been held that it is the mandatory duty of the trial court to advise a defendant of his right to request conditional probation under R.C. 2951.04(A) if the court has reason to believe -9- that the defendant is or may become drug dependent. State v. Pruitt (1984), 18 Ohio App.3d 50, State v. Lampkin (1982), 3 Ohio App.3d 341, State v. Hill (June 14, 1979), Cuyahoga App. No. 40589- 90 and 40708-11, unreported. An appellate court will not speculate how a trial court might have exercised its discretion to grant or deny a request for conditional probation if the request had been made. Pruitt, at 59. The trial court's observation, in part, is as follows: [Y]ou also stand before me charged with various drug offenses. And I don't know the outcome of a good many of those, but i do know that you were in prison for trafficking in drugs UNINTELLIGIBLE Cuyahoga County of 1994. So it's not like you stand before me saying I'm .... yes you do stand before me saying I'm sorry it wont' happen again, but I'm quite certain you did that to the last couple of Judges you had been in front of. Obviously it does happen again. You're violent. You're addicted to drugs. you're going to hurt people. The only way I can see to stop you is to put you in jail .... Upon review of the record in this case, we find that there was reason for the trial court to believe appellant was, or was in danger of becoming drug dependent. Given the foregoing, the trial court was required by R.C. 2951.04(A) to advise appellant of his right to request conditional probation. Accordingly, appellant's assignment of error is sustained. Judgment reversed and remanded. -10- It is ordered that appellant recover of appellee his 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. TIMOTHY E. MCMONAGLE, AND JOHN T. PATTON, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 .