Oral Argument Preview: Properly Preserving An Off-The-Record Discussion For Appeal. State of Ohio v. Andrea Beasley.

Update: On January 4, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the argument here.

On May 16, 2017, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Andrea Beasley, 2016-Ohio-1603. At issue in this case is whether an unrefuted proffer by trial counsel regarding off-the-record conversations is sufficient to preserve an issue for appeal. Justice Fischer has recused himself because he sat on the appellate panel.  Judge Robert Ringland of the Twelfth District Court of Appeals will sit for him on the case.

Case Background

An Amberley Village police officer randomly ran the license plate of a passing car driven by Appellant, Andrea Beasley, who, it turned out, was unlicensed. The officer called for the car to be towed. Pursuant to department policy, the officer also performed an inventory search of the car, and found cocaine.  Beasley was arrested for possession of cocaine. After her indictment,  Beasley filed a motion to suppress, stating that her Fourth Amendment rights were violated. The trial court overruled the motion, and set the case for jury trial.

Counsel for Beasley subsequently notified the judge that Beasley wished to enter a no-contest plea to preserve her right to appeal the denial of the motion to suppress. Appellee, State of Ohio, was aware of Beasley’s wish to enter a plea of no-contest. However, the trial court had a blanket policy of not accepting no-contest pleas, instead requiring a plea of either guilty or not guilty. Discussion of this policy took place off the record, and Beasley ultimately entered a guilty plea. Beasley was sentenced to community control.

Beasley appealed from the conviction for possession of cocaine, arguing that the trial court erred in implementing a blanket policy against no-contest pleas. In a split decision authored by Judge Mock, joined by Judge Stautberg, the First District affirmed Beasley’s conviction, finding that although it is wrong for a trial court to have a blanket policy against no-contest pleas, the issue was not properly preserved for appeal. To properly preserve it, Beasely had to enter the no contest plea on the record and have the trial court refuse it. Then-Judge Fischer dissented. While agreeing that the blanket policy refusing no contest pleas was improper, Fischer would find that Beasley did properly preserve the record for appeal because Beasley’s counsel noted twice on the record that Beasley wanted to plead no-contest to preserve her right to appeal the denial of her motion to suppress.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices French, Lanzinger, O’Donnell, and O’Neill

No: Justices Pfeifer and Kennedy

Key Precedent

Fourth Amendment of the United States Constitution (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

Crim. R. 11(A) (“A defendant may plead not guilty, not guilty by reason of insanity, guilty or, with the consent of the court, no contest.”)

Crim. R. 11(B) (“With reference to the offense or offenses to which the plea is entered: (1) The plea of guilty is a complete admission of the defendant’s guilt. (2) 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.”)

State v. Morgan, 2009-Ohio-1370 (1st Dist.) (“The Ohio Supreme Court has additionally held that a guilty plea breaks the chain between an alleged deprivation of important constitutionally guaranteed rights and a defendant’s ability to vindicate those rights on appeal.”)

State v. Carter, 124 Ohio App.3d 423 (2d Dist. 1997) (Trial court’s blanket policy of refusing to accept no contest pleas without particularized consideration of the facts of each case is an abuse of discretion.)

State v. Jones, 2013-Ohio-3559 (6th Dist.) (Trial court erred when it failed to exercise its discretion in consideration of the specific facts in front of it.)

State v. Mullins, 2007-Ohio-1051 (2d Dist.) (The purpose of a proffer is to assist the reviewing court in determining whether the trial court’s exclusion of evidence affected a substantial right of the appellant.)

Evid.R. 103(A)(2) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.”)

Beasley’s Argument

Beasley’s counsel proffered a summary of an off-the-record conversation between defense counsel, the prosecutor, and the court. This proffer is sufficient to preserve the issue for appeal because the trial court concurred with the proffer, and the prosecutor did not correct or refute it. The trial court’s enforcement of a blanket policy refusing to accept no-contest pleas was made known to Beasley off-the-record. It is only because of that policy that Beasley entered a guilty plea rather than a no-contest plea, and counsel ensured that the information was on the record by offering the summary of the conversation. The summary was sufficient to preserve the issue for appeal; Beasley was not required to make a futile attempt to enter a no-contest plea on the record merely to preserve the issue for appeal.

State’s Argument

The State agrees that the implementation of a blanket policy against accepting no-contest pleas is improper—a court’s decision to enforce such a policy is an abuse of discretion. However, the policy’s existence is insufficient to preserve the issue for appeal. For the issue to be ripe for review, the trial court must actually refuse to accept a plea of no-contest without basis for the denial. Until the court actually does so, its statement of intent to reject such a plea is merely provisional. Beasley failed to plead no-contest on the record. Her guilty plea forfeited her right to appeal the denied motion to suppress.

The state also argues that the proffer was insufficient.

Beasley’s Proposed Proposition of Law

A trial counsel’s unrefuted proffer summarizing an unrecorded conference is sufficient to preserve an error for appeal.

Student Contributor: Connie Kremer

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