THE STATE OF OHIO, APPELLANT, v. BARKER, APPELLEE.
No. 2010-1448
Supreme Court of Ohio
Submitted June 7, 2011—Decided August 24, 2011
129 Ohio St.3d 472, 2011-Ohio-4130
{¶ 9} Turning to the merits of the newly clarified violations, the staff hearing officer found that the auger was not covered as
{¶ 10} ABI filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in both permitting Jessop to amend his VSSR application and in finding violations of the two specific safety requirements. The court of appeals upheld the commission‘s order and denied the writ, prompting ABI‘s appeal as of right to this court.
{¶ 11} Upon review, we agree with the reasoning providеd by the court of appeals. For the reasons given in that opinion, we hereby affirm its judgment.
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
LANZINGER, J., concurs in judgment only.
Leonard F. Carr and L. Bryan Carr, for appellant.
Philip J. Fulton Law Office and David B. Barnhart, for appellee Heath Jessop.
Michael DeWine, Attorney General, and Kevin J. Reis, Assistant Attorney General, for appellee Industrial Cоmmission of Ohio.
{¶ 1} Today this court must decide whether a trial court complies with
I. Facts
{¶ 2} On January 7, 2009, Christopher Barker, defendant-appellee, was indicted on five counts of unlawful sexual conduct with a minor in violation of
{¶ 3} At his plea hearing, Barker stated that he was 28 years old and could read, write, and understand English. The court explained to Barker the level of felony to which he was pleading, the possible prison term and fine, and the Tier II sex-offender-registration and postrelease-control requirements and the consequences of their violation. Moreover, the trial court inquired whether Barker was satisfied with his “attorney‘s advice, counsel, and competence,” whether Barker was under the influence of drugs, alcohol, or other substances that would
{¶ 4} Central to the analysis today, the court made the following statement: “I do have to ask you, do you understand when you‘re entering a plea you‘re giving up your right to a jury trial or bench trial, also giving up your right to call witnesses to speak on your behalf or question witnesses that are speaking against you. Do you understand that?” (Emphasis added.) Barker replied, “Yes, Your Honor.”
{¶ 5} Barker‘s signed no-contest plea states: “I understand by entering this plea 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 power of the court to call witnesses to testify for me.” (Emphasis added.)
{¶ 6} After a review of the evidence, the court referred to Barker‘s signed plea form and asked him whether he had had the opportunity to review it with his attorney, and he said he had. The court asked him whether he had any questions, and he said he did not. Consequently, the court found that the defendant had been advised of his constitutional rights and had an understanding of the nature of the charge, the effect of his plea, and the maximum penalty involved. The court also found that Barker had made a knowing, intelligent, and voluntary waiver of his rights pursuant to
{¶ 7} On appeal, Barker argued that the entry of his no-contest plea was not voluntary, intelligent, and knowing because the trial judge had failed to fully comply with the requirements of
{¶ 8} The case is now before this court upon our acceptance of a discretionary appeаl. State v. Barker, 127 Ohio St.3d 1448, 2010-Ohio-5762, 937 N.E.2d 1035.
II. Analysis
A. Sufficiency of phrase “right to call witnesses to speak on your behalf”
{¶ 9} “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
{¶ 10}
{¶ 11} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no cоntest without first addressing the defendant personally and doing all of the following:
{¶ 12} ” * * *
{¶ 13} “Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.” (Emphasis added.)
{¶ 14} This court has held that the preferred method of informing a criminal defendant of his or hеr constitutional rights during the plea colloquy is to use the language contained in
{¶ 15} In Veney, we reaffirmed that strict, or literal, compliance with
{¶ 16} In the case at bar, the trial court described Barker‘s constitutional right to compulsory process as the “right to call witnesses to speak on your behalf.” The court of appeals held that although a court does not necessarily have to employ the term “compulsory procеss” during the
{¶ 17} A review of legal and standard dictionaries reveals that “to call” commonly means “to summon.” Black‘s Law Dictionary (9th Ed.2009) 232 defines “call” as “[t]o summon.” So does Webster‘s Third New International Dictionary (1986) 318. The Oxford English Dictionary (2d Ed.1989) 786 defines “call” as to “summon with a shout, or by a call; hence to summon, cite; to command or request the attendance of.” The Random House Dictionary of the English Language (2d Ed.1987) 297 defines “call” as “to command or request to come; summon.”
{¶ 18} Using “call” to mean “to compel someone‘s appearance” is a commonly understood term in everyday parlance. For example, citizens may be “called” for jury duty. Members of the military reserves may be “called up” for active duty. Professionals may be “on call” with respect to their jobs. The wоrd “call” in everyday usage clearly conveys the idea that one is required to appear or to perform.
{¶ 19} The dissent in State v. Cummings, 107 Ohio St.3d 1206, 2005-Ohio-6506, 839 N.E.2d 27, ¶ 14, highlighted this issue: “[T]o ‘call’ means to ‘summon.’ Garner, Black‘s Law Dictionary (8th Ed. 2004) 217. * * * I believe that the trial court‘s words conveyed an even clearer message than does a reсitation of the right to ‘have compulsory process for obtaining witnesses.’
B. Consequences of failure to strictly comply with Crim.R. 11(C)(2)(c)
{¶ 21} Barker‘s change-of-plea form states: “I understand by entering this plea 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 power of the court to call witnesses to testify for me.” During the plea colloquy, the trial court asked Barker whether he had reviewed the change-of-plea form with his attorney, and Barker stated that he had. The court then asked: “Do you have any questions of the Court before I proceed?” Barker stated that he did not have any questions.
{¶ 22} 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
{¶ 23} 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.
{¶ 24} In Ballard, as here, the trial court did not “simply” rely on the written plea. Rather, the trial court engaged in а 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 аny alleged ambiguity in it. We further note that this interpretation comports with
{¶ 25} We hold that Veney did not reject the Ballard approach of considering the totality of the circumstances, but instead is limited to thе situation where a trial court omits any discussion of a constitutional right in the oral colloquy. Thus, we hold that an alleged ambiguity during a
{¶ 26} Following the totality-of-the-circumstances test of Ballard, we find it clear that Barker knowingly, intelligently, and voluntarily waived his right to compulsory process, and his plea should not have been invalidated. Barker was adequately informed of his right to compulsory process via the language employed. In addition, Barker was reprеsented by counsel, and he signed a written change-of-plea form stating that he understood that he was giving up the right to use the power of the court to call witnesses to testify for him.
III. Conclusion
{¶ 27} We hold that a trial court complies with
Judgment reversed and trial court judgment reinstated.
O‘CONNOR, C.J., and PFEIFER, O‘DONNELL, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.