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How come the court of appeals did not rule in the way they…

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How come the court of...

How come the court of appeals did not rule in the way they did other cases when it comes to no contest pleas? If you look at State v W**** the judge failed to include that part of the language in traf rule 10 b2 and in my transcript the judge does not say anywhere about: '' The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.'' and it was reversed. But mine was affirmed. In State v. Buckwald 8th dist 2009-Ohio-4032 There was a complete failure to comply with the rule on the part of the trial court because the trial court failed to mention any of the language in traf. r 10 b 2 regarding the effect of Buckwalds no contest pleas. Thus, a prejudice analysis is not necessary. The link below is my case. 3rd assignment of error http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2017/2017-Ohio-7963.pdf

Submitted: 10 months ago.Category: Criminal Law
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10/2/2017
Criminal Lawyer: Law Educator, Esq., Lawyer replied 10 months ago
Law Educator, Esq.
Category: Criminal Law
Satisfied Customers: 126,758
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

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Criminal Lawyer: Law Educator, Esq., Lawyer replied 10 months ago

In paragraph 31 of the ruling, which is the main issue you are asking about, the appeals court is saying several things.

The paragraph says:

The record reveals appellant’s no contest plea was knowingly, intelligently, and voluntarily made. Appellant was afforded a full hearing and the trial court advised appellant of his rights at that time. The transcript establishes appellant wished to plead no contest, consented to a finding of guilt, and waived the reading of the facts upon which the matter was brought. Appellant had no questions regarding the resolution of the case, i.e., a zero point $100 fine plus costs for the marked lanes offense. In support of his argument here, appellant mentions dash cam video footage. However, there is no dash cam DVD in the record before us. Appellant fails to demonstrate any prejudice 8 or manifest injustice due to the trial court’s denial of his motion to vacate regarding his no contest plea.

So, they are claiming that the trial transcript showed the court DID advise you of your rights as required AND that you "wished to plead no contest..." Furthermore, they state your agreement was to ZERO points and a $100 fine. So what the court is claiming here is that your claim they did not notify you of the rights and effects of a no contest plea has no merit based on the other facts they discussed. When a court does as you are claiming, your appeal has to show the harm caused as well as the proof that you not being advised of those rights and effects of the no contest plea caused you that harm. This is not for the municipal court to revisit.

The court said no DVD was presented, but if it was presented or in the case record in the lower court, then you have the claim of an INCOMPLETE record being submitted by the municipal court to argue that had the Appeals court had the complete record their decision would likely have been different and you can do so by getting the DVD from the municipal court record and submitting it to the Appeals Court with a motion for reconsideration and ask them to reconsider. You would also have to explain why the court not explaining the no contest plea as you claim and again quoting the language from Buckwald. If the appeals court denies your reconsideration, your sole remaining recourse is an appeal to the OH Supreme Court not going back to the municipal court.

So it is not that you are without recourse, it is that your recourse is not going back to lower courts as you asked, it is going higher to the OH Supreme Court furthering your appeal.

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Customer reply replied 10 months ago
are you saying if the language the judge must quote in Traf r 10 B2 could only be reversed if there was some sort of harm done 1ST? Without some harm like going to jail or something then the missing language doesn't matter?
Criminal Lawyer: Law Educator, Esq., Lawyer replied 10 months ago

Thank you for your reply.

The courts hold that if no harm was done or it would not have changed the outcome of the case, it would be considered "harmless error" which is insufficient to change the decision of the lower court.

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Customer reply replied 10 months ago
How is it harmless error when it says a prejudice does not have to be shown when a judge does not comply with the rule? In a case similar to mine in State v Semenchuk they say the trial court did not recite the effect of the no contest plea as contained in Traf.R. 10(B)(2) at any time; i.e., the court failed to inform Semenchuk that “no contest” means she is admitting the truth of the facts in the complaint.N. Royalton v. Semenchuk, 2010-Ohio-6197 - The trial court's failure to mention any language in traf r 10 b2 constitutes complete failure to comply with the rule and therefore, an analysis of prejudice is unnecessary.
Customer reply replied 10 months ago
I understand I have to motion for reconsideration or take it to the supreme court but I don't see where harm or prejudice needs to be proved in order to have the plea vacated/reversed if the judge does not say no contest. I added the trial transcript as an attachment. I do not see where this was mentioned. I just want to make sure I'm clear before moving up the chain or just dropping it.
Criminal Lawyer: Law Educator, Esq., Lawyer replied 10 months ago

Thank you for your reply.

All they are saying is that as long as the actions of the court did not change the outcome the error is harmless. I did not see anywhere in the court's description any claims from you as to how had you been informed of this information it would have changed your decision to plead no contest for this $100 fine without points, which is what you had to argue to be consistent with the court cases you keep mentioning.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 10 months ago
I pointed out that had I had the dash cam evidence before I plead no contest I would not have entered it because it doesn't show a violation. I was completely unfamiliar of the rules and court procedure back then. The e-mail proof I had that I requested dash cam evidence before arraignment did not reach the prosecutor and I had no paper trail or records of the phone calls I made that were never returned back when I requested it. I know now how to properly file discovery and make sure to get anything filed stamped for my own records.
Criminal Lawyer: Law Educator, Esq., Lawyer replied 10 months ago

Thank you for your reply.

No DVD was ever presented to the appeals court, they mentioned it in their ruling. The court also said from the records it appeared that you were the one who wanted to plead no contest and that the court did read you your rights about the rights to go to trial. I am just going off of what the court wrote in their opinion, remember I was not there and you arguing it back and forth with me may help clarify it in your mind, but understand you still have only two options which are reconsideration or appeal to supreme court and your clock is ticking to do those.

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