State v. FisherState v. Fisher
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O P I N I O N
Rendered on the 11th day of February, 2011.
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Mathias H. Heck, Jr., Prosecuting Attorney; Michele D. Phipps, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
J. Allen Wilmes, Atty. Reg. No. 0012093, 4428 N. Dixie Drive, Dayton, OH 45414
Attorney for Defendant-Appellant
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GRADY, P.J.:
{¶ 1} Defendant, Richano Fisher, appeals from his conviction and sentence for illegally conveying a drug of abuse onto the grounds of a detention facility.
{¶ 2} Pursuant to a negotiated plea agreement, Defendant pled
{¶ 3} Defendant timely appealed to this court from his conviction and sentence.
ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ACCEPTING APPELLANT‘S GUILTY PLEA WITHOUT ASCERTAINING THAT SAID PLEA WAS KNOWINGLY GIVEN.”
{¶ 5} Defendant argues that his guilty plea was not entered knowingly. In support of that claim, Defendant argues that he did not understand the nature of the charge to which he pled guilty. He also points out that he did not audibly respond to the trial court‘s question regarding whether he understood he had a right to a jury trial, and at sentencing denied that he committed this offense.
{¶ 6} In order to be constitutionally valid and comport with due process, a guilty plea must be entered knowingly, intelligently, and voluntarily. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Compliance with
{¶ 7} In State v. McGrady, Greene App. No. 2009CA60, 2010-Ohio-3243, at ¶11-13, this court stated:
{¶ 8} “In order for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{¶ 9} “A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. State v. Stewart (1977), 51 Ohio St.2d 86, 93;
{¶ 10} “A trial court must strictly comply with
{¶ 11} “The determination that there has been an intelligent voluntary waiver with understanding of rights is a subjective procedure. It can be accomplished by short direct inquiry, investigation or lengthy interrogation. Each determination must be made on an ad hoc basis. The depth and breadth of the interrogation depends upon the totality of circumstances surrounding each case.” State v. McKee (1976), 50 Ohio App.2d, 313, 314.
{¶ 12} Our review of the plea hearing demonstrates that the trial court scrupulously complied with all of the requirements in
{¶ 13} “THE COURT: Would the prosecutor read the charge?
{¶ 14} “MR. CAVINDER: Yes, Your Honor. If this case had proceeded to trial, the State of Ohio would have proven beyond a reasonable doubt that Richano Fisher, on or about November 19th, 2009, in Montgomery County, Ohio, did knowingly convey or attempt to convey onto the grounds of a detention facility or the Department of Rehabilitation and Correction, any drug of abuse, to-wit: marijuana, a drug included in Schedule I as defined in Section
{¶ 15} “THE COURT: Sir, do you understand the nature of the charge?
{¶ 16} “THE DEFENDANT: Yes, sir.” (Plea Tr. at 8-9.)
{¶ 17} Defendant complains because the prosecutor did not include in his recitation of the charge the specific facts of this case. There is no such requirement in
{¶ 18} With respect to the trial court‘s explanation of the constitutional rights Defendant would be giving up by pleading guilty, when the trial court inquired if Defendant understood he had a right to a jury trial and a right to require the prosecutor to prove his guilt beyond a reasonable doubt, Defendant did not audibly respond. When the court then asked Defendant if he had any question about that, Defendant conferred with his counsel and then confirmed that he understood he had the right to require the prosecutor to prove his guilt beyond a reasonable doubt. Defendant went on to affirmatively indicate that he understood his right to confront the witnesses against him, his right to compulsory process, and his right to remain silent and not incriminate himself. The trial court then asked Defendant:
{¶ 19} “THE COURT: And do you understand that by pleading guilty you are giving up all these constitutional rights?
{¶ 20} “THE DEFENDANT: Yes, sir.” (Plea Tr. at 8.)
{¶ 22} “THE COURT: Knowing all this, considering everything we‘ve talked about here this morning, how do you plead to the charge of illegal conveyance of drugs of abuse onto the ground of a detention facility?
{¶ 23} “THE DEFENDANT: Guilty.
{¶ 24} “THE COURT: All right. If you‘ll so verify that plea by signing the form. If you have any question, please ask it now.
{¶ 25} “(Defendant and counsel executing form.)
{¶ 26} “THE COURT: Anything else, Mr. Fisher?
{¶ 27} “THE DEFENDANT: No, sir.” (Id. at 9.)
{¶ 28} In addition to the above, in examining the totality of the facts and circumstances surrounding Defendant‘s guilty plea, we note that Defendant is thirty four years of age, and when asked how far he went in school, Defendant responded, “thirteen years and a half.” Defendant told the court that he did not have any trouble reading. Defendant was represented by a very experienced criminal defense attorney, and executed a written plea form which states, “The Court informed me and I understand that by pleading guilty I am waiving (giving up) my right to a jury trial.” (Dkt. 9.)
{¶ 29} In State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, the Supreme Court wrote:
{¶ 31} * * *
{¶ 32} “{¶43} ‘A waiver is the intentional relinquishment of a known right or privilege. * * * Hence, a defendant must have some knowledge of the nature of the jury trial right to make a valid waiver.’ Bays, 87 Ohio St.3d at 19-20. However, ‘[t]here is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial.’ State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464, paragraph one of the syllabus; accord Spytma v. Howes (C.A.6, 2002), 313 F.3d 363, 370 (colloquy not constitutionally required). ‘The Criminal Rules and the Revised Code are satisfied by a written waiver, signed by the defendant,
{¶ 33} The better practice is to give separate advice to a defendant concerning each right he elects to waive, and to obtain an oral response from the defendant demonstrating his understanding of the matter. The trial court explained the rights Defendant‘s plea would waive. Defendant‘s failure to make an oral response concerning waiver of his right to a jury trial was an oversight on his part, and not a basis to find that Defendant failed to understand that he waived the right the court had explained to him. The fact that the court did not interrogate Defendant further on the matter, after he discussed the court‘s advice with his lawyer, did not invalidate his guilty plea or prevent the court from accepting it.
{¶ 34} This record amply demonstrates that Defendant was informed of and understood all of the constitutional rights he was giving up by pleading guilty in this case. Defendant‘s guilty plea was entered knowingly, intelligently, and voluntarily, with a full understanding of the constitutional rights he would be giving up, including his right to trial by jury. Defendant‘s later assertion at the sentencing hearing that he was intoxicated and did not deliberately convey marijuana into the jail, does not
{¶ 35} Defendant‘s assignment of error is overruled. The judgment of the trial court will be affirmed.
DONOVAN, J. and FROELICH, J. concur.
Copies mailed to:
Michele D. Phipps, Esq.
J. Allen Wilmes, Esq.
Hon. Timothy N. O‘Connell