Summary
In Gusweiler, the court accepted the no-contest plea to the rape charge, proceeded to hear the facts, and found the defendant guilty of attempted rape. That same day, the state sought a writ of mandamus to compel the trial court to find the defendant guilty of rape.
Summary of this case from State v. KnaffOpinion
No. 80-1185
Decided March 25, 1981.
Criminal law — Rape — Finding on lesser included offense — Judge's authority to issue — Mandamus — Writ results in double jeopardy, when.
APPEAL from the Court of Appeals for Hamilton County.
On April 10, 1980, Robert A. Brutsche, appeared before Judge Frank Gusweiler of the Court of Common Pleas of Hamilton County, appellant, to change his prior plea of not guilty of rape to a plea of no contest. After determining that Brutsche understood the proceedings and was acting of his own free will, Judge Gusweiler asked the prosecuting attorney, appellee, to state the facts of the case. Counsel for Brutsche then made a short statement to the court in which he contended the admitted facts more accurately described the crime of attempted rape rather than the prosecutor's conclusion that the facts constituted rape.
The court then stated: "In my judgment, I believe that the plea of no contest to***the indictment would be reduced to that of attempt which is an included offense, and that will be the finding***."
Appellee, on the same day, filed this action in mandamus in the Court of Appeals, seeking to order Judge Gusweiler to find the defendant Brutsche guilty of rape as charged in the indictment, and contending that the "admission of the truth of the facts alleged in the indictment" (Crim. R. 11[B][2]) creates such a mandatory duty. The Court of Appeals granted the writ.
The cause is now before the court upon appeal as a matter of right.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Leonard Kirschner, for appellee.
Mr. Robert R. Hastings, Jr., and Mr. Thomas W. Miller, for appellant.
In State, ex rel. Sawyer, v. O'Connor (1978), 54 Ohio St.2d 380, this court stated that on a plea of no contest the court could find the defendant guilty of a lesser included offense in the event of a finding of not guilty as to the principal charge. Although the charged offense in O'Connor was a misdemeanor rather than a felony, as in the instant cause, Crim. R. 11(A), which provides for the plea of no contest, makes no distinction between felony and misdemeanor offenses. Since the case was submitted on a plea of no contest, appellant had the authority to enter a finding on the lesser included offense.
Appellee contends the oral pronouncement made by appellant does not create such finality as would place Brutsche in jeopardy. However, this court further stated in O'Connor, at page 382, that the defendant "was placed in jeopardy at the time the trial court exercised its discretion to accept a no contest plea." The United States Supreme Court has stated that jeopardy attaches in a criminal case when the defendant is "`put to trial before the trier of the facts, whether the trier be a jury or a judge.'" Serfass v. United States (1975), 420 U.S. 377, 388.
Here, the appellant exercised his discretion to accept a no contest plea and resolved the factual elements of the charged offense against the state by indicating his intent to find the defendant guilty of an attempt rather than guilty of the principal charge. Thus, jeopardy has attached in the instant cause.
The writ issued by the Court of Appeals would result in the defendant being placed twice in jeopardy. Mandamus will not issue to command a vain act. O'Connor, supra, at page 383; State, ex. rel. Freeman, v. Valentine (1971), 25 Ohio St.2d 184.
Accordingly, the judgment of the Court of Appeals granting the writ is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.