text: [Cite as State v. Hill, 2018-Ohio-1345.]
  
  
  
  
                         IN THE COURT OF APPEALS OF OHIO
                             THIRD APPELLATE DISTRICT
                                  HENRY COUNTY
  
  
  
  
  STATE OF OHIO,
  
          PLAINTIFF-APPELLEE,                                CASE NO. 7-17-07
  
          v.
  
  BENJAMIN D. HILL,
                                                             OPINION
          DEFENDANT-APPELLANT.
  
  
  
  
                           Appeal from Napoleon Municipal Court
                                Trial Court No. 17CRB0639
  
        Judgment Affirmed in Part, Reversed in Part and Cause Remanded
  
                                 Date of Decision: April 9, 2018
  
  
  
  
  APPEARANCES:
  
          Alan J. Lehenbauer for Appellant
  
          Anthony C. Johnson for Appellee
  Case No. 7-17-07
  
  
  SHAW, J.
  
         {¶1} Defendant-Appellant, Benjamin D. Hill (“Hill”), appeals the September
  
  21, 2017 judgment of the Napoleon Municipal Court, convicting him, following a
  
  guilty plea, of one count of persistent disorderly conduct in violation of R.C.
  
  2917.11(A)(1), (E)(3)(a), a misdemeanor of the fourth degree. On appeal, Hill
  
  claims that the underlying complaint initiating this case failed to properly invoke
  
  the trial court’s jurisdiction because it did not comply with Crim.R. 3, and that the
  
  trial court failed to comply with Crim.R. 11(E) when it accepted his guilty plea.
  
         {¶2} On July 12, 2017, a complaint and probable cause affidavit were filed
  
  alleging that Hill “did knowingly cause or attempt to cause physical harm to a family
  
  or household member.” (Doc. No. 1). The complaint further indicated that Hill’s
  
  alleged conduct constituted the offense of domestic violence in violation of R.C.
  
  2919.25(A), a misdemeanor of the first degree. The probable cause affidavit
  
  accompanying the complaint set forth the details of the offense, stating that the
  
  victim found at the household claimed Hill had “slapped her 3 times in [sic] the left
  
  side of the face, with an open hand, and choked her by placing his hand around her
  
  neck and pushing her into the refrigerator.” Both the complaint and affidavit were
  
  signed by the responding law enforcement agent, Sergeant Robinson of the Deshler
  
  Police Department, and displayed a notary public stamp current in commission. Hill
  
  was subsequently arraigned and pled not guilty.
  
  
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  Case No. 7-17-07
  
  
          {¶3} On September 21, 2017, Hill appeared in court represented by counsel
  
  and withdrew his not guilty plea and entered a plea of guilty to an amended charge
  
  of persistent disorderly conduct, a fourth degree misdemeanor. The trial court
  
  accepted Hill’s guilty plea and sentenced him to serve 30 days of incarceration, all
  
  suspended upon certain conditions, and to pay a $50.00 fine, plus court costs.
  
          {¶4} Hill filed this appeal, asserting the following assignments of error.
  
                          ASSIGNMENT OF ERROR NO. 1
  
          THE TRIAL COURT LACKED JURISDICTION BASED ON A
          COMPLAINT THAT WAS INVALID UNDER CRIMINAL
          RULE 3.
  
                          ASSIGNMENT OF ERROR NO. 2
  
          THE TRIAL COURT ERRED IN ACCEPTING THE
          DEFENDANT’S PLEA BY FAILING TO COMPLY WITH
          CRIMINAL RULE 11(E).
  
          {¶5} For ease of discussion, we elect to address the assignments of error out
  
  of order.
  
                               Second Assignment of Error
  
          {¶6} In his second assignment of error, Hill contends that the trial court erred
  
  in failing to substantially comply with Crim.R. 11(E) when it accepted his guilty
  
  plea.
  
          {¶7} Crim.R. 11 sets forth distinct procedures for the trial court to follow in
  
  accepting a plea, with the procedures varying based upon whether the offense
  
  
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  Case No. 7-17-07
  
  
  involved is a misdemeanor that is a petty offense, a misdemeanor that is a serious
  
  offense, or a felony. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, ¶ 11. For
  
  a “petty offense” misdemeanor, such as Hill’s persistent disorderly conduct offense,
  
  the trial court was required only to inform Hill of the effect of his guilty plea. Jones
  
  at ¶ 14; Crim.R. 11(E); see Crim.R. 2 (defining classifications of offenses).
  
         {¶8} The Supreme Court of Ohio has held that, to satisfy the requirement of
  
  informing a defendant of “the effect of the plea” before accepting a guilty plea to a
  
  petty misdemeanor, the court is required to inform the defendant that the plea is a
  
  complete admission of guilt. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093 at ¶ 25.
  
  Unlike the provisions applicable to more serious offenses, Crim. R. 11(E) does not
  
  require the trial court to personally address the defendant and determine that the
  
  defendant understands the nature of the charge and is entering the plea voluntarily.
  
  State v. Wright, 2d Dist. Montgomery No. 26471, 2015-Ohio-3919, ¶ 17.
  
         {¶9} While literal compliance with Crim.R. 11 is preferred, such compliance
  
  is not required when the trial court informs the defendant of a nonconstitutional
  
  right, as is “[t]he right to be informed that a guilty plea is a complete admission of
  
  guilt.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶ 12; see also, State v.
  
  Beach, 9th Dist. Summit Nos. 26021, 27124, 2015-Ohio-3445, ¶ 31, citing State v.
  
  Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 29-32. Consequently, in cases
  
  involving the trial court’s explanation of the effect of a guilty plea, we must only
  
  
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  Case No. 7-17-07
  
  
  engage in “a substantial compliance analysis.” Griggs at ¶ 12. Under this standard
  
  of review, “a slight deviation from the text of the rule is permissible[ ] so long as
  
  the totality of the circumstances indicates that ‘the defendant subjectively
  
  understands the implications of his plea and the rights he is waiving[.]’ ” Clark at ¶
  
  31, quoting State v. Nero, 56 Ohio St.3d 106, 108 (1990).
  
         {¶10} Here, prior to accepting his guilty plea, the trial court addressed Hill
  
  and stated the following:
  
         So Mr. Hill, you realize then that the Court is approving that
         amendment [from a change of domestic violence to disorderly
         conduct] and you would be pleading guilty to an allegation under
         2917.11(A)(1)(E)(3)(a), and that on or about July 11, 2017 you did
         in the Village of Deshler, Henry County, State of Ohio, knowingly
         engage in fighting and threatening harm to persons or property
         or a violent or turbulent behavior and persisted in that disorderly
         conduct after a reasonable warning or requested assist. It is a
         misdemeanor of the fourth degree and it is punishable by up to
         thirty days in jail, a $250 fine or both. If you do wish to plead
         guilty to that charge there is a written waiver for you to sign.
         Please read over this waiver with your attorney, initial lines three
         and four and date and sign the bottom where indicated. The
         Court will find the defendant knowingly, voluntarily and
         intelligently with full understanding of his rights waived those
         rights and enters a plea of guilty to a charge as amended. The
         Court would accept his plea and find him guilty.
  
  (Doc. No. 26 at 3).
  
         {¶11} The record further indicates that at the time of entering his guilty plea,
  
  Hill also signed and initialed a written statement acknowledging the wavier of his
  
  right to a trial and/or a trial by jury. We believe the record supports a finding that
  
  
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  Case No. 7-17-07
  
  
  the totality of the circumstances indicates that Hill subjectively understood the
  
  implications of his plea and the rights he was waiving, and thus, the trial court
  
  substantially complied with Crim.R. 11(E).
  
         {¶12} Even assuming that the trial court failed to satisfy its obligation under
  
  Crim.R. 11 to inform Hill of the effect of his guilty plea, the Supreme Court of Ohio
  
  has held that a defendant must establish that the failure to comply with
  
  nonconstitutional rights, such as the information contained in Crim.R. 11(B)(1),
  
  resulted in prejudice, meaning the defendant would not have entered his plea. Jones,
  
  116 Ohio St.3d 211, 2007-Ohio-6093 at ¶ 52.
  
         {¶13} There is no evidence of prejudice in this case. At the change of plea
  
  hearing, Hill did not claim innocence. Instead, he acknowledged that he “made a
  
  mistake” and “apologize[d] to the State for the inconvenience.” (Doc. No. 26 at 4).
  
  By failing to assert his innocence, Hill is “presumed to understand that a plea of
  
  guilty is a complete admission of guilt.” Jones at ¶ 54, citing State v. Griggs, 103
  
  Ohio St.3d 85, 2004-Ohio-4415, ¶ 19. Hill further requested that his recommended
  
  sentence of thirty days of jail suspended be “filed” as thirty days with credit for time
  
  served. The Court explained to Hill that he was not eligible for credit because he
  
  was serving time on another case while awaiting the resolution in the case sub
  
  judice. Accordingly, we are not persuaded by Hill’s arguments on appeal that the
  
  
  
  
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  Case No. 7-17-07
  
  
  trial court erred in accepting his guilty plea and the second assignment of error is
  
  overruled.
  
                               First Assignment of Error
  
         {¶14} In his first assignment of error, Hill asserts that the trial court lacked
  
  jurisdiction to hear the case based upon his allegation that the complaint failed to
  
  comport with the requirements of Crim.R. 3 because it did not contain a written
  
  statement of the essential facts and was not made upon oath before an authorized
  
  person.
  
         {¶15} Crim.R. 3 states that “[t]he complaint is a written statement of the
  
  essential facts constituting the offense charged. It shall also state the numerical
  
  designation of the applicable statute or ordinance. It shall be made upon oath before
  
  any person authorized by law to administer oaths.” Crim.R. 3. “The purpose of a
  
  complaint filed in a criminal case is to provide reasonable notice to the defendant of
  
  the nature of the offense.” State v. Smith, 10th Dist. Franklin No. 16AP–21, 2017-
  
  Ohio-9283, ¶ 21. “A valid complaint “must contain * * * ‘a written statement of
  
  the essential facts constituting the offense charged[,]’ ” and “ ‘may be in the words
  
  of the applicable section of the statute, * * * or in words sufficient to give the
  
  defendant notice of all the elements of the offense with which the defendant is
  
  charged.’ ” State v. Jones, 11th Dist. Ashtabula No. 2015-A-0068, 2016-Ohio-
  
  6987, ¶ 18, citing Crim.R. 3 and Crim.R. 7(B).
  
  
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  Case No. 7-17-07
  
  
                         Written Statement of the Essential Facts
  
         {¶16} As previously indicated, the complaint initiating this case described
  
  Hill’s alleged conduct by using all the elements which comprise the offense of
  
  domestic violence, as well as including the numerical designation of the applicable
  
  statute and the level of the offense. As such, we find that the complaint adequately
  
  apprised Hill of the nature of the offense with which he was charged and find no
  
  error on this basis.
  
                     Made Upon Oath Before an Authorized Person
  
         {¶17} Hill next argues that the complaint is invalid and his conviction is void
  
  based upon his allegation that “there is no attestation by the charging officer before
  
  a person authorized by law to administer oaths, as required by Crim.R. 3.” (Appt.
  
  Brief at 6). The record establishes that the complaint and probable cause affidavit
  
  were both signed by Sergeant Robinson as the complainant and affiant. On the line
  
  underneath Sergeant Robinson’s signature on both documents appears the statement
  
  “Sworn to and subscribed before me by the Complainant [Affiant] on July 11,
  
  2017.” Appearing over the signature line on the probable cause affidavit and under
  
  the signature line on the complaint is a stamp that states “Rhonda Slee Notary Public
  
  My Commission Expires.” Handwritten underneath the stamp appears the date “4-
  
  11-22.” In addition to the Notary Public stamp, both documents bear the stamped
  
  seal stating “Notary Public State of Ohio” with the official State Seal.
  
  
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  Case No. 7-17-07
  
  
         {¶18} Despite all these indicators that a Notary Public may have been present
  
  to administer an oath upon Sergeant Robinson signing these documents, the record
  
  fails to indicate that a Notary Public signed the documents verifying the complaint
  
  and/or affidavit were sworn under oath by Sergeant Robinson in the presence of
  
  someone authorized to administer the oath. “As a general proposition, a jurat is
  
  merely a certificate which is intended to establish that the oath was duly
  
  administered by a duly authorized individual.” State v. Davies, 11th Dist. Ashtabula
  
  No. 2012-A-0034, 2013-Ohio-436, ¶ 24 citing Taxis v. Oakwood, 19 Ohio L.Abs.
  
  498 (2nd Dist.1935).      “Notwithstanding the fact that the signature is usually
  
  dispositive of the ‘verification’ issue, it has been held that the lack of the signature,
  
  or the total omission of the jurat, will not render the complaint void under all
  
  circumstances.” Id. at ¶ 26, citing Taxis, 19 Ohio L.Abs. 498. “Instead, the validity
  
  of the complaint can still be upheld if the prosecution can otherwise show, based
  
  upon other language in the document or evidence outside the record, that a proper
  
  oath was administered by a person duly authorized to take the oath.” Id.
  
         {¶19} In this case, Hill did not raise the issue of a jurisdictional defect based
  
  upon the lack of signature by the Notary Public before the trial court. As a result,
  
  the trial record does not contain any factual findings verifying that Rhonda Slee, or
  
  another authorized person, administered the oath to Sergeant Robinson upon him
  
  
  
  
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  signing the complaint and accompanying affidavit. For this reason, the judgment of
  
  the trial court is reversed.
  
         {¶20} If evidence outside the record shows that Rhonda Slee actually
  
  administered the oath, despite not personally signing, or someone else authorized to
  
  administer an oath actually did so, the complaint would not be defective and the
  
  conviction would not be void. Accordingly, this case is reversed and remanded for
  
  a hearing to determine whether the complaint was sworn under oath by Sergeant
  
  Robinson in the presence of someone authorized to administer an oath as required
  
  by Crim.R. 3. Therefore, to this extent only, the first assignment of error is
  
  sustained.
  
         {¶21} For the aforementioned reasons, we overrule the second assignment of
  
  error and sustain the first assignment of error on the limited basis set forth above.
  
  Accordingly, the judgment of the trial court is affirmed in part and reversed in part,
  
  and the case is hereby remanded so that an evidentiary hearing can be held on the
  
  issue of whether the complaint was sworn under oath by Sergeant Robinson in the
  
  presence of someone authorized to administer oaths.
  
                                                          Judgment Affirmed in Part,
                                                               Reversed in Part and
                                                                   Cause Remanded
  
  WILLAMOWSKI, P.J., and PRESTON, J., concur.
  
  /jlr
  
  
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