What’s On Their Minds: Properly Preserving An Off-The-Record Discussion For Appeal. State of Ohio v. Andrea Beasley.

“Can’t we infer that the court assented to what counsel said by virtue of silence on the part of the court?”

Justice O’Donnell, to the prosecutor

On May 16, 2017, the Supreme Court of Ohio heard 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 sat 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 no-contest plea.  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 accepting no-contest pleas, the issue was not properly preserved for appeal. To properly preserve it, Beasley 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.

Read the oral argument preview of the case here.

Key Precedent

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.”)

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.”)

Prof. Cond. R. 3.3 Candor to the Tribunal (statements made by lawyer in open court based on lawyer’s personal knowledge may only be made if lawyer knows them to be true or believes them to be true based on diligent inquiry.)

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. 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.)

State v. Clinkscale, 2009-Ohio-2746 (Counsel’s on-the-record summary of an off-the-record conference was an acceptable way to fix any deficiency in the record and satisfy App. R 9(E).)

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. Dodson, 2017-Ohio-918 (1st Dist.) (It is an abuse of discretion to reject a proffered no-contest plea based on court’s blanket policy of not accepting no contest pleas. Case distinguished from Beasley because defendant Dodson took proper steps to preserve the error for appellate review by actually entering the no-contest plea.)

At Oral Argument

Arguing Counsel

Joshua A. Thompson, Office of the Hamilton County Public Defender, for Appellant Andrea Beasley

Sean M. Donovan, Assistant Prosecuting Attorney, Hamilton County Prosecutor’s Office, for Appellee State of Ohio

Beasley’s Argument

The two facts which the court of appeals needed to address this appeal properly were placed on the record in open court by trial counsel for the defense, without challenge by the prosecutor or the judge. Those facts were that the defendant wanted to plead no contest, and that the trial court had a blanket policy of refusing to accept no contest pleas. At the time, no one disputed either of those facts.

The court of appeals was wrong when it found those statements were not part of the record on appeal. The statements were properly proffered to the court, and there was no objection by either the prosecutor or by the court. That sufficiently preserves the error for review.

The law does not require a vain act, which is what actually entering a no contest plea would have been here, given the clearly understood policy of the trial court. Had the defendant done so, and had the judge rejected the plea without explanation, defense counsel would still have had to proffer the blanket policy, and we would be exactly where we are now. Entering a no contest plea would in fact have been a futile act.

The way trial counsel handled this delicate situation was the most direct method of appellate review for all the parties involved. The proffer gave the judge and the prosecutor an immediate opportunity to respond.

State’s Argument

Absent an actual attempt to plead no contest, and the refusal by the court to accept that plea, there is no final appealable order made by the court that preserves this issue on appeal. The First District has made that very clear in its recently issued decision in State v. Dodson, in which it also made clear, as it did in this case, that a blanket policy of not accepting no contest pleas is an abuse of discretion. But that extra step—actually entering a plea of no contest on the record, and having it refused—is essential to appellate review.

A judge’s statement that she will not accept such pleas is only provisional until such a plea is entered and refused.  The proffer provides the context for review of a refusal to accept a no contest plea, but it is not good enough just to proffer that blanket policy. The trial court actually has to make a ruling refusing to accept the plea.  Until the court’s policy is implemented, no harm has actually occurred. Both the proffer and the tender of the actual plea were necessary here. Dodson provides the roadmap of how a similarly situated defendant should address these issues.

What Was On Their Minds

The Blanket Policy

Is this a blanket policy only for this particular Common Pleas judge, asked Chief Justice O’Connor, or is it amidst all the Common Pleas judges in Hamilton County? (Counsel gave different answers to this question. Defendant’s counsel said it was unique to this judge; the prosecutor said it was more widespread.) Isn’t there a difference between not allowing or accepting such pleas, and not granting them?

Is there any question here that the court had a blanket policy of not accepting no contest pleas, and had that plea been made, the court would not have accepted it, asked Justice DeWine? (the prosecution never challenged the fact that the blanket policy existed and constituted an abuse of discretion.) Justice O’Neill later asked the same thing.

The Plea Hearing

Where exactly do the statements appear in the record, asked Justice O’Donnell? Were they made in open court? At what point in the proceedings? Was it in the form of a proffer, or a statement addressed to the judge? In a key question of the day, he asked whether it made any difference that the court didn’t correct counsel or interject that the representations being made were incorrect? He noted that there was no objection by the state or by the court over what the representation was, commenting that this statement stood unrebutted, and the court of appeals should have given creditability to that.

Is there any question on this record that had a no contest plea been offered, the court would not have accepted it, asked Justice DeWine?

The Proffer

Wasn’t the proffer necessary here, asked Chief Justice O’Connor?

If the court just deals with the sufficiency of the proffer, how does it reach the issue of the blanket policy of the jurist involved, asked Justice O’Donnell?

Are there legitimate reasons for rejecting a no-contest plea, asked Justice O’Donnell?

Properly Preserving Error For Appeal

Is it sufficient to preserve error for review of the trial court’s refusal to accept a no contest plea, that trial counsel made a record of it, and the prosecution didn’t object, asked Justice O’Donnell? Is the state singularly focused on the final appealable order issue in connection with how that matter comes to the appellate court? (state’s answer: yes)

Why was the appeals court wrong in finding that to preserve error for review, the defendant had to enter a no-contest plea and have the trial court refuse to accept the plea on the record, asked Justice O’Neill? Later, he asked, if defense counsel had not proffered the policy on the record, how could that blanket policy be reviewed here?

If the defendant had pled no contest, and the judge simply refused to accept the plea, but gave no reason, never said it was a blanket policy to refuse to accept such pleas, that would not provide the basis for an appeal, would it, asked Chief Justice O’Connor, in another key question of the day. If the defense attorney had told his client, look the court won’t accept this, but we have to go through the motions, and the plea would have been on the record, but the judge just denied the motion, with nothing more, where is the appealability? Where is the fact that this is a response by defendant to a blanket rule that is clearly inappropriate?

Some Constitutional Concerns

In an equal protection context, if this case were in another county, wouldn’t the defendant have the right to enter and exercise no contest pleas, asked Justice O’Donnell? Isn’t that an equal protection problem?

Does a defendant have a constitutional due process right to enter a plea of no contest, asked Justice O’Neill? If the imperfect proffer demonstrated that there is a policy by this particular court to violate constitutional rights, why isn’t that properly before the court in this case?

Remedy

How broad a rule should the court write, asked Justice DeWine? Should it just apply to no-contest pleas? What’s the stopping point?

Couldn’t the court just find the error was properly preserved, and not write a broad rule at all, asked Justice French?

How it Looks From the Bleachers

To Professor Emerita Bettman

Like a win for the defense. Although the prosecutor, who was quite articulate, is undoubtedly correct that the ideal way to do this would be to enter the plea, have the judge deny it, and also have the judge explicitly state, oh by the way, I am denying this because I have a blanket policy of not accepting any no contest pleas, life doesn’t always work that tidily for lawyers.  Apparently, it did in Dodson, a recent case from the First District Court of Appeals, which distinguished and cleaned up its earlier decision in Beasley. But as the Chief and Justice O’Donnell emphasized strongly in their questioning, when trial counsel for the defendant made the proffer about the blanket policy, no one objected, corrected him, or challenged him.  And it is true that the law does not require vain acts, which this would seem to have been. Finally, and importantly, as the Chief pointed out, an actual no-contest plea, followed by a general denial, without any reason given, wouldn’t get to the heart of the matter for appeal.

So while the prosecutor’s way may be the best way (again assuming the judge cooperates and admits to the blanket policy), I think a majority is going to find that the issue in this case was properly preserved for appeal, and the trial court abused its discretion in not accepting the plea.

One final thing. Why do some Hamilton County Common Pleas judges have such a policy, which is clearly improper?

To Student Contributor Mark Tassone

First, I want to welcome rising 2L Mark Tassone, who is one of my new student contributors to the blog. You can read more about him here.

Here are Mark’s first set of impressions for the blog. He and I are in agreement about this one. As a point of information for blog readers, my student contributors do not know how I am going to predict the outcome when they send me their own impressions.

How it Looks to Mark

Despite a hail-storm of questions, the prosecutor stuck to his guns that his chief argument—that absent the attempt to enter a no-contest plea and a denial of the plea, there is no final appealable order—was sound. Nevertheless, the prosecutor found himself treading water on several occasions, admitting that the non-exercise of judicial discretion is an abuse of judicial discretion, that a proffer would be necessary if a no-contest plea should be denied without explanation, and that there are issues of equal protection and due process interwoven throughout this case.

Beasley’s appellate counsel had a much smoother sea. Justice O’Neill asked why trial counsel should not have entered a no-contest plea and have it denied. Beasley’s lawyer quoted the appellate dissent of then-Judge Fischer stating: “Entering a no-contest plea would, in fact, have been a futile act.” Chief Justice O’Connor then discussed the concern of the appealability of a denial of a plea without explanation by the court. Finally, Justices DeWine and French questioned Beasley’s lawyer on the potential nature and breadth of the Court’s ruling. He encouraged a narrow ruling.

The concerns raised by Justices O’Donnell, O’Neill, and Chief Justice O’Connor combined with the questions of Justices DeWine and French concerning any potential ruling establish a clear majority. And it is my opinion that the court will rule in Beasley’s favor.

 

 

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