State v. Waddell

[This opinion has been published in Ohio Official Reports at 

71 Ohio St.3d 630

.]




           THE STATE OF OHIO, APPELLANT, v. WADDELL, APPELLEE.
                      [Cite as State v. Waddell, 

1995-Ohio-31

.]
Criminal procedure—Determination whether court must consider accused's
        statement before accepting a no contest plea to a misdemeanor offense—
        R.C. 2937.07, construed.
In the case of a no contest plea to a misdemeanor offense, a court may make its
        finding from the explanation of circumstances by the state. The court is
        required to consider the accused's statement only where the plea is guilty.
        (R.C. 2937.07, construed.)
      (No. 93-265—Submitted January 24, 1995—Decided March 29, 1995.)
      CERTIFIED by the Court of Appeals for Hocking County, No. 91 CA 16.
                                  __________________
        {¶ 1} Brent Waddell, defendant-appellee, was cited for improperly crossing
a divided roadways' median, a minor misdemeanor, in violation of R.C. 4511.35.
At his arraignment, appellee pled no contest to the charge, and the case proceeded
to trial. Following the conclusion of the arresting officer's statement, the court
found appellee guilty. Appellee then made an unsolicited statement, which the
court discounted due to appellee's prior driving record. Appellee was convicted and
fined accordingly. The court of appeals, in a two-to-one decision, reversed the trial
court. It held that R.C. 2937.07 requires a statement from the accused after an
explanation of circumstances by the state, and prior to judgment. Finding its
judgment to be in conflict with the decision of the Sixth District Court of Appeals
in State v. Herman (1971), 

31 Ohio App.2d 134

, 

60 O.O.2d 210

, 

286 N.E.2d 296

,
and the judgment of the Tenth District Court of Appeals in State v. McMillen (Mar.
16, 1989), Franklin App. No. 88AP-477, unreported, the appellate court certified
the record of the case to this court for review and final determination.
                             SUPREME COURT OF OHIO




                              __________________
       Charles A. Gerken, Hocking County Prosecuting Attorney, and Jeffrey F.
Bender, Assistant Prosecuting Attorney, for appellant.
                              __________________
       FRANCIS E. SWEENEY, SR., J.
       {¶ 2} In this case we are asked to determine whether a court must consider
an accused's statement before accepting a no contest plea to a misdemeanor offense.
We hold R.C. 2937.07 requires that a court need only consider the explanation of
circumstances by the state before it passes judgment. While a court may certainly
consider a statement from the accused, it is not required to do so.
       {¶ 3} To decide this issue, we are asked to construe R.C. 2937.07. R.C.
2937.07 contains two paragraphs--the first dealing with the procedure required by
the court before accepting a guilty plea in misdemeanor cases, and the second
detailing the necessary procedure before the court accepts a no contest plea in
misdemeanor cases.
       {¶ 4} The first paragraph of R.C. 2937.07 provides in part:
       "Upon a plea of guilty [to a misdemeanor offense] being received the court
or magistrate shall call for explanation of circumstances of the offense from the
affiant or complainant or his representatives, and after hearing the same, together
with any statement of the accused, shall proceed to pronounce sentence * * *."
(Emphasis added.)
       {¶ 5} The second paragraph of R.C. 2937.07 provides:
       "If the plea be 'no contest' * * * to a misdemeanor, it shall constitute a
stipulation that the judge or magistrate may make a finding of guilty or not guilty
from the explanation of circumstances, and if guilt be found, impose or continue
for sentence accordingly * * *." (Emphasis added.)
       {¶ 6} To properly construe this statute, we must first look at the express
wording of the statute. Provident Bank v. Wood (1973), 

36 Ohio St.2d 101

, 65




                                          2
                                     January Term, 

1995 O.O.2d 296

, 

304 N.E.2d 378

. Courts must give effect to the words of a statute and
may not modify an unambiguous statute by deleting words used or inserting words
not used. Shover v. Cordis Corp. (1991), 

61 Ohio St.3d 213, 218

, 

574 N.E.2d 457, 461

. Simply stated, "an unambiguous statute means what it says." Hakim v.
Kosydar (1977), 

49 Ohio St.2d 161, 164

, 

3 O.O.3d 211, 213

, 

359 N.E.2d 1371, 1373

, citing Chope v. Collins (1976), 

48 Ohio St.2d 297, 300

, 

2 O.O.3d 442, 444

,
358 N.E 2d 573, 575, fn. 2.
        {¶ 7} In our view, the unambiguous language of R.C. 2937.07 clearly states
that in the case of a no contest plea to a misdemeanor offense, a court may make its
finding from the explanation of circumstances by the state. The court is required to
consider the accused's statement only where the plea is guilty. This is evident from
the fact that the "together with any statement of accused" clause in the first
paragraph of the statute is noticeably absent from the second paragraph, which deals
with no contest pleas. Had the General Assembly intended for this requirement to
apply to no contest pleas, then appropriate language would have been inserted in
the second paragraph. Thus, according to the statute, the trial court did not have to
consider the accused's statement, and appellee received all that the statute required1.
        {¶ 8} The judgment of the court of appeals is reversed, and appellee's
conviction is reinstated.
                                                                          Judgment reversed.
        MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, PFEIFER and COOK, JJ., concur.
                                   __________________




1. In fact, by allowing appellee to make a statement, appellee received more than what the statute
required.




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