State of Ohio, Plaintiff-Appellee, v. Terrille D. Ellis, Defendant-Appellant.
No. 14AP-912 (C.P.C. No. 14CR-02-885)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
August 25, 2015
2015-Ohio-3438
TYACK, J.
(REGULAR CALENDAR)
Rendered on August 25, 2015
Ron O‘Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
Mark J. Miller, for appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, J.
{¶ 1} Defendant-appellant, Terrille D. Ellis, appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to a term of imprisonment of 23 years to life following his guilty plea to a charge of aggravated murder with a firearm specification. Ellis was indicted on charges of aggravated murder plus a firearm specification, aggravated burglary with a firearm specification, aggravated robbery with a firearm specification, and two counts of having a weapon while under a disability. After initially pleading not guilty to all charges, Ellis entered a plea of guilty to one count of aggravated murder with a firearm specification. At issue in this case is whether the trial court determined that Ellis understood the rights he was waiving by pleading guilty.
{¶ 2} Ellis has assigned one error for this court‘s review:
The trial court erred in accepting Appellant‘s guilty plea in violation of
Criminal Rule 11 and due process guarantees under the state and federal Constitutions.
{¶ 3}
{¶ 4}
(2) In felony cases the court may refuse to accept a plea of guilty or no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
* * *
(c) 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.)
{¶ 5} Under the plain language of the rule, “a trial court must strictly comply with
{¶ 6} However, failure to use the exact language contained in the rule in informing a defendant of these rights is not grounds for vacating a plea as long as the
{¶ 7} At the plea hearing, the prosecutor presented the court with a two-page “Entry of Guilty Plea” form that had been signed by all parties as well as a three-page “Defendant‘s Agreement” executed by Ellis, his attorney, and the assistant prosecuting attorney. The prosecutor explained the plea agreement and the joint recommendation on the sentence, and the trial court engaged in the following colloquy with Ellis:
THE COURT: Okay. Mr. Ellis, I have a plea form here that says you‘re changing your plea to guilty to one count of aggravated murder with a three-year firearm specification and that the other two counts are being dismissed.
Are you voluntarily pleading guilty to aggravated murder with a firearm spec?
DEFENDANT ELLIS: Yes.
THE COURT: Are you aware when you enter a guilty plea, you allow me to find you guilty of that offense and proceed with the sentencing?
DEFENDANT ELLIS: Yes.
THE COURT: On aggravated murder, it would be possible to get all the way up to life without parole in addition to the three-year firearm spec and a fine up to $25,000, are you aware of that?
DEFENDANT ELLIS: Yes.
THE COURT: When you enter a guilty plea, you give up your right to have a jury trial on these charges. You have a right to require the State to prove beyond a reasonable doubt that
you‘re guilty of these offenses. You have a right to confront and cross-examine anyone who testifies against you. You‘d have a right to issue subpoenas for any defense witnesses you might have. You‘d have a right, if you went to trial, to remain silent throughout the proceedings, and then you could appeal if any court rulings or jury verdicts went against you in a trial. By entering this guilty plea, that means you‘re giving up those trial rights. Are you doing that voluntarily?
DEFENDANT ELLIS: Yes.
THE COURT: I also understand from what Mr. Manning just said that you entered into a Defendant‘s Agreement and -- or an agreement with the prosecutor about testifying.
Are you aware that, if you don‘t cooperate and carry out that agreement, that they could withdraw this plea and start all over again?
DEFENDANT ELLIS: Yes.
(Tr. 3-5.)
{¶ 8} The prosecution then presented the following statement of facts:
Early morning of November 20th, 2013, co-defendant by the name of Melanie Spears recruited Mr. Ellis and Mr. Derrick Robinson to commit a robbery of Shaun Fullen, S-H-A-U-N, Fullen, F-U-L-L-E-N. Throughout the day they planned this robbery. And in the evening, Melanie Spears was over at the home of Shaun Fullen here in Franklin County and had Mr. Ellis and Mr. Robinson enter the home under the guise that they were robbing Ms. Spears.
During the course of this, they had a confrontation in the bathroom with Shaun Fullen. Terrille Ellis did fire one shot striking and killing Mr. Fullen. After they shot him, they ransacked the house, took cash and a number of firearms and fled the location. Mr. Fullen died as a proximate result of Mr. Ellis shooting him.
Again, this occurred here in Franklin County, Judge.
{¶ 9} Ellis contends that even though the trial court properly informed him of his constitutional rights, it failed to determine if he actually understood the constitutional rights he was waiving by pleading guilty. Ellis argues that the trial court was required to specifically ask him if he understood the rights he was giving up. Ellis contends that a strict compliance standard is required in determining whether he understood the rights he was waiving, and that by not inquiring specifically if Ellis understood the rights he was waiving, the court failed to meet the strict compliance standard, and the plea should be vacated.
{¶ 10} The Supreme Court of Ohio has stated, “[w]e have also clarified that in reviewing the totality of the circumstances, a court must determine whether the defendant understood the consequences of waiver.” Veney, ¶ 16. Thus, whether the defendant understands the consequences of his waiver is to be reviewed under a substantial compliance standard, not strict compliance. Id. Under the substantial compliance standard, a reviewing court examines the totality of the circumstances surrounding the plea to decide if the trial court determined that the defendant understood the rights he was waiving by pleading guilty.
{¶ 11} Veney then stands for the proposition that there is a distinction between the strict compliance required for the notification of constitutional rights and the substantial compliance necessary for other information required to be in the plea colloquy. Id. at ¶ 14 (“Although we had initially insisted on strict compliance with
{¶ 12} We believe that this reasoning applies to the requirement in
{¶ 13} In State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, the Supreme Court of Ohio held that a court reviewing the validity of a plea could consider the language in the change-of-plea agreement, stating that “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.” Id. at ¶ 24. Additionally, the Supreme Court held that ”Veney did not reject the Ballard approach of considering the totality of the circumstances, but instead is limited to the situation where a trial court omits any discussion of a constitutional right in the oral colloquy.” Id. at ¶ 25.
{¶ 14} Here, an examination of the totality of the circumstances surrounding the plea, including additional record evidence, demonstrates that Ellis knowingly and voluntarily understood that by pleading guilty he was waiving his constitutional rights. The key portion of the colloquy shows the trial court itemizing all the rights he gives up by entering a guilty plea. Then the trial court reiterates:
[THE COURT:] By entering this guilty plea, that means you‘re giving up those trial rights.
Are you doing that voluntarily?
DEFENDANT ELLIS: Yes.
(Tr. 4.)
{¶ 15} In addition, on October 1, 2014, Ellis signed a two-page “Entry of Guilty Plea” which stated in pertinent part:
I further understand that by pleading “Guilty“, I waive a number of important and substantial constitutional, statutory and procedural rights, which include, but are not limited to, the right to have a trial by jury, the right to confront witnesses against me, to have compulsory subpoena process for obtaining witnesses in my favor, to require the State to prove my guilt beyond a reasonable doubt on each crime herein charged at a trial at which I cannot be compelled to testify against myself, and to appeal the verdict and rulings of the trial Court made before or during trial, should those rulings or the verdict be against my interests.
{¶ 17} Thus, despite the trial court‘s failure to explicitly ask Ellis if he understood that, by pleading guilty, he was waiving each of the enumerated constitutional rights, the record demonstrates that Ellis was fully and meaningfully informed of the rights he was waving and that his plea was entered into voluntarily. Based on the totality of the circumstances and the record before us, we conclude that Ellis knowingly and voluntarily waived his constitutional rights. For this reason, we overrule the sole assignment of error.
{¶ 18} Having overruled the single assignment of error, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRUNNER, J., concurs.
DORRIAN, J., dissents.
DORRIAN, J., dissenting
{¶ 19} I respectfully dissent from the judgment of the majority.
{¶ 20} “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.” (Emphasis added.) State v. Engle, 74 Ohio St.3d 525, 527 (1996). The majority, at ¶ 17, concludes that Ellis “knowingly and voluntarily” waived his constitutional rights. However, whether a defendant understood the rights he was waiving and, therefore, “intelligently” waived those rights is a different question. I do not believe that the trial court in this case determined whether Ellis intelligently waived his rights.
{¶ 21} “[T]he basis of
{¶ 22} I disagree with the majority‘s application of the substantial compliance standard to conclude that the trial court complied with its duty to determine that Ellis understood the constitutional rights he was waiving. Majority decision at ¶ 10. The majority bases this application of substantial compliance on its reading of ¶ 16 of State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200. That portion of the Veney decision refers to the totality of the circumstances in the context of the substantial compliance standard as it applies to non-constitutional rights outlined in
{¶ 23} I am concerned that the effect of the majority decision is to require strict compliance with a trial court‘s first duty under
{¶ 24} Nevertheless, even in applying a totality of the circumstances standard in a strict compliance context on the facts of this case, I would not conclude that the trial court strictly complied with its duty to determine whether Ellis understood the rights he was waiving. None of the trial court‘s questions addressed whether Ellis understood the rights
{¶ 25} For the reasons stated above, based on the facts presented in this case, I would conclude that the trial court failed to strictly comply with its duty under