State v. ColonState v. Colon
- Reporters:
- , , ,
- Before:
- Moyer
Lead Opinion
{¶ 1} This mаtter is before us on a motion for reconsideration filed by appellee, the state of Ohio. Appellee’s motion for reconsideration was suppоrted by amici curiae, the Clark County Prosecutor’s Office and the Ohio Prosecuting Attorneys Association. Defendant-appellant, Vincent Colon, filed a memorandum оpposing reconsideration.
{¶ 2} In State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 {“Colon I”), this court held that the indictment against defendant was defective because it failed to charge an essential element of thе offense, the mens rea of the charged offense. Id. at ¶ 19. We further held that the defendant did not waive the defect in the indictment by failing to raise that issue at trial. Id. at syllabus.
I
{¶ 3} Our holding in Colon I is only prospective in nature, in accordance with our general policy that newly declared constitutional rules in criminal cases are applied prospectively, not retrospectively. In State v. Evans (1972), 32 Ohio St.2d 185, 61 O.O.2d 422, 291 N.E.2d 466, we stated that “ ‘application of a new rule of law to a pending appeal is not retrospective,’ and * * * the new rule applie[s] to the cases pending on the announcement date.” Id. at 186, 61 O.O.2d 422, 291 N.E.2d 466, quoting State v. Lynn (1966), 5 Ohio St.2d 106, 108, 34 O.O.2d 226, 214 N.E.2d 226.
{¶ 4} We recently restated this principle in Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, at ¶ 6: “A new judicial ruling may be applied
{¶ 5} Therefore, the rule announced in Colon I is prospective in nature and applies only to those cases pending on the date Colon I was announced.
II
{¶ 6} We assume that the facts that led to our opinion in Colon I are unique. As we stated in Colon I, the defect in the defendant’s indictmеnt was not the only error that had occurred: the defective indictment resulted in several other violations of the defendant’s rights. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 29. In Colon I, we concluded that there was no evidence to show that the defendant had notice that recklessness was an element of the crime of robbery, nor was there evidence that the state arguеd that the defendant’s conduct was reckless. Id. at ¶ 30. Further, the trial court did not include recklessness as an element of the crime when it instructed the jury. Id. at ¶ 31. In closing argument, the prosecuting attorney treated robbery as a strict-liability offense. Id.
{¶ 7} In a defective-indictment case that does not result in multiple errors that are inextricably linked tо the flawed indictment such as those that occurred in Colon I, structural-error analysis would not be appropriate. As we stated in Colon I, when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plain-error analysis is appropriate. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 23. Pursuant to
{¶ 8} Applying structural-error analysis tо a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment. In Colon I, the error in the indictment led to errors that “permeate[d] the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innоcence.” Id. at ¶ 23, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17. Seldom will a defective indictment have this effect, and therefore, in most defective indictment cases, the court may analyze the error pursuant to
Judgment accordingly.
Pfeifer, O’Connor, and Wolff, JJ., concur. Lundberg Stratton, O’Donnell, and Lanzinger, JJ., dissent. William H. Wolff Jr., of the Second Appellate District, sitting for Cupp, J.
Dissenting Opinion
dissenting.
{¶ 9} I continue to adhere to my earlier dissent as I anticipate uncertainty among the mеmbers of the bench and bar as to the application of a structural-error analysis, as opposed to a plain-error analysis, following the court’s deсision today.
{¶ 10} If I understand the majority, the error here is structural because it “permeate[d] the trial from beginning to end.” State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 23, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17. But this occurred only because Colon never raised the matter at the trial level and raised it for the first time on appeal. Wouldn’t every error not raised by a defendant have the potential to becomе structural error?
{¶ 11} In State v. Hill (2001), 92 Ohio St.3d 191, 199, 749 N.E.2d 274, we explained that “the concept behind structural error is that certain errors are so fundamental that they obviate the necessity for a rеviewing court to do a harmless-error analysis.” But application of the harmless-error standard assumes that the defendant preserved the error for review, and there is no similar “structural-error exception” to the plain-error doctrine under
{¶ 12} I agree that errors are “structural” when they “permeate the trial,” Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17, and infect the entire “ ‘framework within which the trial proceeds.’ ” State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, quoting Arizona v. Fulminante (1991), 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. I fail to grasp, though, how structural error occurred in this case, but that a different defendant who faces a defective indictment and raises the matter as Colon did on appeal should not be treatеd in the same manner as Colon. As the court in Neder v. United States (1999), 527 U.S. 1, 14, 119 S.Ct. 1827, 144 L.Ed.2d 35, emphasized, “[A] constitutional error is either structural or it is not.” See also United States v.
{¶ 13} Structural-error analysis does not permit a cоurt to determine that a particular error, e.g., omission of an essential element from an indictment, is structural error in one case but not structural error in another. Rаther, structural-error analysis is applied when a particular error permeates the trial and renders it fundamentally unfair in every case, such that, when the error ocсurs, “no criminal punishment may be regarded as fundamentally fair.” Rose v. Clark (1986), 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460.
{¶ 14} The Supreme Court has identified the following as structural errors, and every case in which they occur is subject to immediаte reversal on appeal: denial of counsel, Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; biased trial judge, Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; racial discrimination in the selection of a grand jury, Vasquez v. Hillery (1986), 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598; denial of self-representation at trial, McKaskle v. Wiggins (1984), 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122; denial of a public trial, Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31; and a jury instruction defining reasonable doubt as “grave uncertainty,” Sullivan v. Louisiana (1993), 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182.
{¶ 15} Omitting an essential element from an indictment does not rise to that level.
{¶ 16} Finally, the majority opinion appears to conflict with our holding in State v. O’Brien (1987), 30 Ohio St.3d 122, 30 OBR 436, 508 N.E.2d 144, in which the indictment also failed to include a judicially interpreted mens rea element of recklessness, an essential element of the offense of child endangering. We rejected O’Brien’s constitutional argument that amendment of the indiсtment, pursuant to
{¶ 17} Based on our holding in O’Brien, it is my view that the defect in Colon’s indictment did not alter the name or identity of the offense of robbery charged by the grand jury and that the defect could havе been cured by a motion filed pursuant to
{¶ 18} For these reasons, I continue to dissent.
Lundberg Stratton and Lanzinger, JJ., concur in the foregoing opinion.
Dissenting Opinion
dissenting.
{¶ 19} Although, on motion for reconsideration, the majority announces that its decision shall not be applied retroactively, I continue to maintain my dissenting opinion as previously expressed and also join Justice O’Donnell’s dissenting opinion with respect to structural error.
Lundberg Stratton, J., concurs in the foregoing opinion.