There are four pleas an Ohio criminal defendant can enter to a complaint or indictment: (1) not guilty, (2) not guilty by reason of insanity, (3) guilty and (4) no contest. Many people believe the correct thing to do when they are of the belief they have actually committed the crime is to simply plead no contest. In my experience defendants are not quite sure why this is the case other than perhaps friends and family members advised them that it is the correct course of action. Hey, your not pleading guilty, and it gets the case over with, right?
Pleading no contest is often the correct thing to do, but an interesting appellate decision in State v. Martin, 2013-Ohio-5050 shows why this might not always be the best idea. Before delving into the specifics of Martin, let’s first address the theory behind no contest pleas and why defendants may want or need to enter that particular plea.
A plea of no contest is essentially this: you as the defendant are not going to contest the factual allegations as stated on the face of the charging instrument (complaint or indictment), but you are not admitting your guilt, either. If the face of the complaint or indictment contain all of the necessary elements of the offense, and thus providing a factual basis for the charge, then the court will proceed to find you guilty. If the charging instrument is deficient for some reason (e.g., it fails to state an essential element of the charge), the court will have to find you not guilty. Again, in theory, the idea is that you are simply not contesting the allegations, it is not as if you are acquiescing in state’s request to convict you. While defective indictments/complaints are not necessarily uncommon, they are hardly something criminal defense attorneys encounter daily. While we always review the indictment or complaint for legal sufficiency, it’s rare that you hit the jackpot.
So, the logical follow-up question for the layperson is, “if the judge is most likely going to find me guilty anyway, what is the purpose in pleading no contest?” In truth, there are a few important reasons aside from the fact the indictment might fail to adequately charge a crime. First, if your conduct resulted in damages to another person (e.g. an OVI crash), it is important to plead no contest so that your criminal conviction cannot be introduced against you in a subsequent civil trial. If you plead guilty, the plaintiff in the civil suit can introduce a certified judgment of conviction at trial to prove that you were in fact driving impaired when you crashed. Because you admitted guilt in the OVI criminal case, you cannot later deny that you were in fact drunk. However, by pleading no contest, the plaintiff in the civil suit would retain the burden of having to prove that you were a drunk driver when you caused the accident and damages to the other party.
Another common reason, and perhaps the most important for criminal practitioners, is to preserve for appeal an objection to the trial court’s pre-trial rulings (motion to dismiss, motion to suppress evidence). For example, if the court overrules a motion to suppress evidence, a defendant must plead no contest in order to appeal that decision. If the defendant pleads guilty, by making a complete admission of guilt, he or she waives any right to later claim the trial court erred in its decision not to suppress the evidence. Nobody cares if the cops violated your fourth amendment protections when you freely admit you are guilty. Remember, when a court suppresses evidence it is not declaring the defendant is innocent of the crime. Rather, the court merely prohibits the state from using the illegally obtained evidence against you in its effort to prove your guilt.
Now that we’ve engaged in a macro-level refresher on no contest pleas, let’s take a look at the Martin decision and why it may be a bit of a pit fall for criminal practitioners. The defendant in Martin was charged with felony domestic violence (DV), which essentially requires the accused to “knowing cause or attempt to cause physical harm to a family or household member.” Martin argued in the trial court that the victim, his step-sister, was not a “family or household member” as that term is defined under statute. The defendant and the state both submitted briefs to the trial court regarding their respective legal positions. After considering the arguments of both sides, the trial court issued a written decision stating how it intended to instruct the jury as to the definition of “family or household member,” and without going into the minutia here, let’s just say it was adverse to the defendant. Based upon the trial court’s written decision, the jury instructions it intended to provide at trial was certainly going to allow the jury to find beyond a reasonable doubt that a step-sister falls within the definition of a “family or household member.” Upon seeing the writing on the wall the defendant decided to cut-bait, plead no contest to the DV and have his legal argument decided by the court of appeals. Or so he thought.
The Second District Court of Appeals quickly overruled his argument that the trial judge erred in finding him guilty of the DV because the victim was not a family or household member under law. The appellate panel determined that by pleading no contest to the offense of domestic violence, the defendant did not contest the factual allegations in the complaint, including that the victim was a “family or household member.” The defendant can’t first admit that she is a family or household member at the trial level and then claim she wasn’t when the case is on appeal. If the defendant wished to contest that issue, he had to have a trial and argue that the state failed to prove that essential element of DV.
So, where does this leave us as criminal practitioners? Aren’t there many factual allegations contained in indictments that we essentially admit upon a no contest plea after the trial court overrules a pre-trial motion? The answer is yes, of course. The difference between this situation and a case where the judge fails to suppress evidence or dismiss a case for violating the right to speedy trial boils down to nature of what was ruled upon by the lower court. When the court determines the police did not violate the Fourth Amendment, he is ruling on something outside the four corners of the indictment. The State does not alleged in the charging instrument that police acted constitutionally when they discover a defendant’s heroin. Therefore, when the Defendant enters a no contest plea to the possession of heroin charge, while not contesting he was in possession of the drug, he is not admitting to the constitutionality of the search, thus preserving that issue for appeal. The corollary of the Martin case for our heroin hypothetical would be if the defendant was contesting that substance was actually heroin at all. That is a factual allegation in the indictment. If the Defendant pleaded no contest to the indictment, he could not later argue on appeal that the court erred in finding him guilty because the substance recovered was not actually heroin. The no contest plea admitted that fact.
While this was certainly a strange case in some respects, it does make logical and legal sense. And this case is a helpful reminder that criminal defense attorneys must be aware of what they are preserving on appeal. If you want to argue a fact that is alleged in the indictment, a no contest plea will foreclose that possibility.
Posted by Charles W. Morrison on November 20, 2013.