COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 72342 & 72343 CITY OF CLEVELAND : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : AMER ABUAUN : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Cleveland Municipal Court Case No. 96-CRB-30862 and 96-TRD-72799 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: GEORGE A. PACE, ESQ. DARRELL D. TYBURSKI, ESQ. FIRST ASST. CITY PROSECUTOR ALBERT A. GIULIANI, ESQ. Justice Center - Eighth Floor 410 Leader Building 1200 Ontario Street Cleveland, Ohio 44114 Cleveland, Ohio 44113 -2- DYKE, P.J.: In these consolidated appeals, defendant Amer Abuaun appeals from his convictions for aggravated disorderly conduct (trial court case no. 96 30862) and for exceeding the privileges of his temporary driver's permit (trial court case no. 72799). For the reasons set forth below, we reverse and remand both matters for further proceedings. The record reveals that on October 27, 1996, defendant was charged in case no. 96 30862 with engaging in drug-related activity (Cleveland Municipal Code Section 607.19), and resisting arrest (Cleveland Municipal Code Section 615.08). On November 8, 1996, defendant was charged in case no. 96 72799 with driving with a tem- porary instruction permit and without a licensed driver (Cleveland Municipal Code Section 435.03). Defendant pleaded not guilty in both matters and filed motions to suppress the evidence. On February 4, 1997, the trial court held an evidentiary hearing on the motions to suppress. Thereafter, the court denied the motions and set both matters for trial on April 15, 1997. The transcript of the proceedings of April 15, 1997 indicates in relevant part as follows: [BY THE PROSECUTING ATTORNEY]: And at this time, we would like to make the following recommendations I'm not certain that is the number on the docket sheet, Judge. But, let me just mention to you that with respect to the resisting arrest, we would like to recommend a nolle. -3- With respect to the traffic related matter, the driving with a temporary permit but he had - not having a licensed driver in the car, we believe a change in plea will be forthcoming. And in connection with the third count, which is the loitering case, we would like to amend to Municipal Code Section 605.03A-1, aggravated disorderly conduct, a misdemeanor of the first degree. Your Honor, we make these recommendations in anti- cipation of a change in plea from the defendant to both these charges as remaining before you this morning. THE COURT: Is that correct? [DEFENSE COUNSEL]: That is correct, your Honor. (Tr. 2-3). 1The trial court then engaged in a discussion with the attorneys and defendant, but it was not a colloquy within the meaning of Crim. R. 11 and the court did not actually elicit a plea from defendant. The trial court subsequently issued a journal entry in case no. 96 30862 which indicated that the charges were amended in accordance with the recommendation of the prosecuting attorney and that defendant had entered a plea of no contest to the charge of aggravated disorderly conduct (Cleveland Municipal Ordinance Section 605.03(A)(1)). On the same day, the trial court issued a journal entry in case no. 96 72799 which indicated that defendant had entered a plea of no contest to the driver's temporary permit 1 For purposes of this appeal, we assume but do not decide that aggravated disorderly conduct is a lesser included offense of engaging in drug-related activity. -4- violation set forth in that matter. The trial court then fined defendant $1,000 plus costs, with $500 suspended, and sentenced him to 180 days incarceration, with 120 days suspended. The trial court also placed defendant on active probation for two years and ordered that he perform community work service, in lieu of paying his fine. Finally, the trial court ordered that defendant obtain his Graduate Equivalence Degree, drug counseling and proof of employment during the period of his probation. The court imposed the same sentence in case no. 96 72799 and indicated that the period of incarceration was to be served concurrently in both matters. Defendant was granted bond pending his appeal. Herein, he assigns two errors for our review. Defendant's assignments of error state: THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S MOTION TO SUPPRESS. THE TRIAL COURT ERRED BY FAILING TO DISCLOSE THE EX PARTE COMMUNICATION, LETTER, WHICH IT HAD RECEIVED FROM THE COMMUNITY WATCH GROUP PRIOR TO THE PLEA AND SENTENCING HEARING AND BY PERMITTING MEMBERS OF THIS [GROUP] TO TESTIFY WITHOUT BEING SWORN AND NOT SUBJECT TO CROSS- EXAMINATION AT SENTENCING. We do not reach the assigned errors. Pursuant to the plain error doctrine, we sua sponte address the manner in which the trial court convicted defendant of the offenses at issue. See Crim. R. 52; State v. Stover (1982), 8 Ohio App.3d 179, 183. In case no. 96 30862, the trial court issued a journal entry which stated that it had accepted defendant's no contest plea to aggravated disorderly conduct, a first degree misdemeanor herein. See Cleveland Codified Ordinances Section 605.03(E). This offense -5- therefore can result in a term of imprisonment of not more than six months. R.C. 2929.21(B)(1). In case no. 72799, the trial court issued a journal entry which stated that it had accepted defendant's no contest plea to the charge of driving with his temporary permit without a licensed driver, a misdemeanor of the first degree. Cf. R.C. 4506.99(A). This offense therefore can result in a term of imprisonment of not more than six months. R.C. 2929.21(B)(1). As misdemeanors which have a penalty of six months or less are petty offenses, pursuant to Crim. R. 2 and Crim. R. 11(E), see Toledo v. Chiaverini (1983), 11 Ohio App.3d 43, 44, the trial court was required to comply with Crim. R. 11(E) before accepting a plea of no contest. See Crim. R. 11(E) which provides in relevant part as follows: Misdemeanor cases involving petty offenses. In mis- demeanor cases involving petty offenses the court *** shall not accept [a plea of guilty or no contest] without first informing the defendant of the effect of the pleas of guilty, no contest, and not guilty. *** That is, where a defendant is charged with a misdemeanor, the trial court must explain the effect of a no contest plea and the record must affirmatively demonstrate that a plea of no contest was made voluntarily, knowingly, and intelligently. State v. Joseph (1988), 44 Ohio App.3d 212, 213. Moreover, where a trial court in a misdemeanor case accepts a no contest plea without first inform- ing the defendant of the effect of such plea, as mandated by Crim. R. 11(E), and there is absolutely no compliance with the rule, the error is prejudicial, even when the defendant is represented by counsel. State v. Hays (1982), 2 Ohio App.3d 376, 377. See, also, -6- State v. Orr (1985), 26 Ohio App.3d 24, 26; Eastlake v. DeNiro (1984), 21 Ohio App.3d 102, 103. In this instance, the trial court did not meet any of the requirements of Crim. R. 11 before it entered its determination that defendant had in fact committed the offenses which are the subject of this appeal, and imposed sentence. We therefore reverse and remand both case no. 96 30862 and case no. 96 72799 for further proceedings according to law. Reversed and remanded. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. MCMONAGLE, J., AND PATTON, J., CONCUR. ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .