State v. AdamsState v. Adams
Angela Wilson Miller, Jupiter, Florida, for appellant.
Kevin Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
Harsha, J.
{¶1} The State indicted Roger A. Adams on theft, forgery and two counts of assault. In exchange for Adams’s guilty plea to forgery and one count of assault, the state dismissed the other two charges. After the court sentenced him to prison and ordered restitution, Adams appealed, raising two assignments of error.
{¶2} First he argues that his guilty plea was obtained in violation of his state and federal constitutional rights and
{¶3} Next, Adams argues that his trial counsel rendered ineffective assistance of counsel by failing to object to the order that he pay restitution in the amount of $100 to the elderly female victim he struck. Because we reverse Adams’s conviction based upon the trial court’s failure to comply with
I. ASSIGNMENTS OF ERROR
{¶4} Adams raises two assignments of error:
- APPELLANT’S PLEA WAS OBTAINED IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION AND
CRIM.R. 11(C) . - TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN VIOLATION OF ADAMS’ RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
OHIO CONSTITUTION ARTICLE I, §§ 5 ,10 , AND16 . IN THE ALTERNATIVE, ADAMS ARGUES THAT THE RESTITUTION AWARD TO [THE VICTIM] AMOUNTED TO PLAIN ERROR.CRIM. R. 52(B) .
II. LAW AND ANALYSIS
A. Validity of Guilty Plea
{¶5} In his first assignment of error Adams contends that his guilty plea was obtained in violation of his federal and state constitutional rights and the requirements of
{¶6} “ ‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “
{¶7} When we determine whether a guilty [or no-contest] plea was entered knowingly, intelligently, and voluntarily, we conduct a de novo review of the record to ensure that the trial court complied with the constitutional and procedural safeguards. State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 13; see also State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, ¶ 27-31.
2. Constitutional Rights Enumerated in Crim. R. 11(C)(2)(c)
{¶8} Adams contends that the trial court erred by failing to inform him of any of the constitutional rights set forth in
I understand by pleading guilty I give up my right to a jury trial or court trial, where I could see and have my attorney question witnesses against me, and where I could use the subpoena power of the Court to call witnesses to testify for me. I know at trial I would not have to take the witness stand and could not be force to testify against myself and that no one could comment if I chose not to testify. I understand I waive my right to have the prosecutor prove my guilt beyond a reasonable doubt on every element of each charge.
{¶9} At the sentencing hearing, the trial court engaged in the following dialogue:
COURT: Now, Attorney Fowler, did you go over this written plea of guilty with Mr. Adams?
MR. FOWLER: I did, your honor.
COURT: Okay. Did you advise him of all of his rights, state and federal?
MR. FOWLER: I did, your honor.
* * *
COURT: Now, Mr. Adams, is it your intention to have the Court enter this written guilty plea into the record today?
DEFENDANT: Yes.
COURT: Can you read and write?
DEFENDANT: Yes.
COURT: Did you read the written plea of guilty before you signed it?
DEFENDANT: Yes.
COURT: And is it correct you had an opportunity to review this written plea of guilty with Attorney Fowler?
DEFENDANT: Yes.
COURT: And do you affirm that Attorney Fowler answered all your questions and addressed your concerns?
DEFENDANT: Yes.
COURT: Are you satisfied with the services and the advice of Attorney Fowler?
DEFENDANT: Yes.
COURT Is there anything about this written plea or today’s proceedings, that you do not understand?
DEFENDANT: No.
COURT: Do you understand that when you signed this plea, . . . you waived all of the Constitutional rights that are explained in the written plea of guilty, and when I accept this guilty plea, you will be found guilty of these charges? Do you understand that?
DEFENDANT: Yes.
COURT: Are you doing this voluntarily?
DEFENDANT: Yes.
{¶10} “A trial court must strictly comply with
{¶11} But, “[f]ailure to use the exact language contained in
{¶12} “Although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to convey these rights to the defendant.” Veney at ¶ 29. The trial court does not satisfy the requirement of
{¶13} Here the trial court did not explain the constitutional rights set forth in
{¶14} The Supreme Court of Ohio explained the extent to which a written plea agreement could be used to satisfy the requirements of
In addition to invalidating Barker’s plea based on the alleged insufficiency of the language employed to describe the right to compulsory process, the court of appeals cited Veney, which states that “ ‘the court cannot simply rely on other sources to convey these rights’ ” to the defendant. Barker, 2010-Ohio-3067, 2010 WL 2638515, ¶ 15, quoting Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 29. The court held that the plea agreement was another source and therefore could not be employed to satisfy the constitutional mandate in
Crim.R. 11(C)(2)(c) . We disagree.In Veney, this court held, “Although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to convey those rights to the defendant.” Id. at ¶ 29. However, Veney can be distinguished on its facts. The court noted that in Veney’s case, “it [was] undisputed that the trial court plainly failed to orally inform Veney of his constitutional right to require the state to prove his guilt beyond a reasonable doubt.” Id. at ¶ 30. Therefore, because the trial court had completely “failed to orally inform” the defendant of the right in question, under the facts of Veney, the court could not “simply rely on other sources to convey these rights.” Id. at ¶ 29.5
In Ballard, as here, the trial court did not “simply” rely on the written plea. Rather, the trial court engaged in a full plea colloquy with the defendant and addressed the right of compulsory process of witnesses. Thus, when a trial court addresses all the constitutional rights in the oral colloquy, a reviewing court should be permitted to consider additional record evidence to reconcile any alleged ambiguity in it. We further note that this interpretation comports with federal law, which does not require automatic vacation of a plea when a judge fails to inform a defendant of a Boykin right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See United States v. Vonn (2002), 535 U.S. 55, 59, 122 S.Ct. 1043, 152 L.Ed.2d 90.
{¶16} The state argues that the trial court referred to “the Constitutional rights” Adams was waiving and therefore the written plea agreement could be used to clarify this ambiguous reference. The state cites State v. Ross, 2013-Ohio-3220, 996 N.E.2d 1033 (9th Dist.); State v. Bennett, 9th Dist. Summit No. 26241, 2012-Ohio-3664; and State v. Coleman, 9th Dist. Summit No. 26008, 2012-Ohio-1712. These cases are factually distinguishable. The trial courts in each of those three cases orally explained the constitutional rights to the defendant using language other than the verbatim language of
{¶17} In all three cases, the Ninth District Court of Appeals found “that any ambiguity inherent in the language used at the hearing was resolved by the written plea form.” Ross at ¶ 9. Here, the trial court simply did not make any attempt to orally explain Adams’s constitutional rights to him, but relied exclusively on defense counsel to explain them through the written plea agreement.
{¶18} Accordingly, we reject the state’s argument and hold the trial court did not strictly comply with
{¶19} Because we reverse Adams’s conviction based upon the trial court’s failure to comply with
III. CONCLUSION
{¶20} The trial court’s failure to inform Adams of his constitutional rights as required by
JUDGMENT REVERSED, CAUSE REMANDED.
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY:
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.