366 N.E.2d 300 | Ohio Ct. App. | 1977
This appeal invokes a review of plea proceedings in which defendant-appellant Sandra Fletchinger (defendant), plead guilty to two sex offenses.
Defendant was first indicated on November 18, 1974, for the corruption of a minor (R. C.
However, she appeared before the Court of Common Pleas on April 9, 1975, for the purpose of withdrawing her previously entered pleas of not guilty.
At the April appearance the court addressed defendant advising her of the presumption of innocence and that she: (a) was entitled to a jury trial; (b) had a right to counsel; (c) had a right to be proven guilty "* * * by evidence of a reasonable doubt * * * [sic]"; (d) had a right to face her accusers and cross-examine them; (e) had a right to call witnesses in her own behalf; (f) was not required to testify; and (g) that her failure to testify could not be the subject of prosecution comment. The court then asked defendant if she was guilty of two counts of corruption of a minor.1 Defendant responded "Yes * * *." The court then concluded that the pleas were entered voluntarily and "* * * with an understanding of the possible penalties that have been explained * * * here in open court."2 The pleas were accepted.
Defendant filed a timely notice of appeal3 raising three *75 assignments of error. The assignments are noted in the Footnotes.4 For reasons assessed below we find all three assignments of error well taken. We reverse.
The plea to the charge of corruption of the ten-year-old raises different questions.
"Where the elements of another offense are not included *76
among those of the offense charged in the indictment, the defendant cannot be found guilty of such other offense under the indictment", State v. Hreno (1954),
It has been noted that the November 25, 1974, indictment charged the defendant with the rape of a 10-year-old boy and that her plea under that charge was to a so-called "included" offense — the corruption of a minor.
Corruption of a minor must involve an accused (eighteen or older) in sexual conduct with a person who "* * * is over twelve but not over fifteen years of age * * *." R. C.
It may be assumed for present purposes that the defendant was over 18. However, corruption of a minor involves not only age conditions. In addition, there is the element of knowing that the victim "* * * is over twelve but not over 15 years of age, or the offender is reckless in that regard," R. C.
The court erred by accepting defendant's guilty plea to a crime for which she could neither be charged nor convicted under the facts alleged in the indictment. She was allowed to plead to a crime which could not be committed with a ten-year-old boy even if age scienter were a factor in rape. (It is not.) A plea to rape, properly taken, would have been valid. A plea to a non-included offense cannot be.7
Moreover, had defendant's plea to corruption of a minor with respect to the 10-year-old boy involved a lesser included offense, the acceptance of the plea was in violation of defendant's right to due process. This is so because, on the facts of this case, the plea was involuntary. A plea may be involuntary where the accused "* * * has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt," Henderson v. Morgan (1976),
Crim. R. 11(C)(2) specifies:
"In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of maximum penalty involved, and, if applicable, that he is not eligible for probation.
"(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
"(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."
The requirements of Crim. R. 11 must be "scrupulously adhered to," State v. Griffey (1973),
The transcript of the evidence in the instant case records the trial court's failure to adhere to three specific mandates of the rule. Before accepting the plea and during its personal address to defendant the court did not explain the maximum penalties involved (see n. 2), as required by Crim. R. 11(C)(2)(a).9 Although the court did explain defendant's constitutional rights,10 enumerated in Crim. R. 11(C)(2)(c), *79 the court did not specifically inform defendant that by her plea she waived them. Finally, the court did not inform defendant and determine that she understood the effect of her guilty plea11 "* * * and that the court upon acceptance of the plea may proceed with judgment and sentence," Crim. R. 11(C)(2)(b). It follows that both pleas were invalid under the standards imposed by Crim R. 11, underwritten by Griffey.
Reversed and remanded for further proceedings in accordance with this opinion.
Judgment reversed.
JACKSON, C. J., and KRENZLER, J., concur.
The court did not personally explain to defendant the nature of the charges and the crucial elements of each charged offense, cf. Henderson v. Morgan (1976),
"I. The common pleas court erred in accepting the defendant's guilty plea on the second count of corrupting a minor, since corrupting a minor is not a lesser included offense of rape, the crime for which she was indicted."
Assignment of Error No. II:
"II. The common pleas court erred in accepting the defendant's guilty plea without personally addressing the defendant and determining that she understood the maximum penalty involved."
Assignment of Error No. III:
"III. The common pleas court erred in accepting the defendant's guilty plea without informing her that by her plea she was waiving her various rights and that upon acceptance of the plea, the court could immediately proceed with judgment."
"Corruption of a minor.
"(A) No person, eighteen years of age or older, shall engage in sexual conduct with another, not the spouse of the offender, when the offender knows such other person is over twelve but not over fifteen years of age, or the offender is reckless in that regard.
"(B) Whoever violates this section is guilty of corruption of a minor, a felony of the third degree. If the offender is less than four years older than the other person, corruption of a minor is a misdemeanor of the first degree."