State v. FlynnState v. Flynn
JOURNAL ENTRY AND OPINION
STATE OF OHIO, PLAINTIFF-APPELLEE vs. RALPH FLYNN, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-520679
RELEASED: July 8, 2010
JOURNALIZED:
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Kevin R. Filiatraut
Lisa Reitz Williamson
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant Ralph Flynn appeals his conviction as a result of a guilty plea and assigns the following error for our review:
“The trial court erred in accepting defendant‘s guilty plea, as said plea was not entered knowingly, voluntarily, and intelligently because of the trial court‘s failure to advise the defendant that, should he decide not to testify at trial, no one could comment on the defendant‘s failure to testify.”
{¶ 2} Having reviewed the record and pertinent law, we affirm Flynn‘s conviction. The apposite facts follow.
Facts
{¶ 3} The Cuyahoga County Grand Jury indicted Flynn for two counts of rape, two counts of sexual battery, and one count of kidnapping, all with sexually violent predator specifications. Flynn entered a plea of guilty to one count of rape, and in exchange, the remaining counts and specifications were dismissed.
{¶ 4} After the first plea hearing was conducted, the trial court discovered that it had incorrectly advised Flynn as to the mandatory nature of his sentence and postrelease control. Therefore, the trial court conducted another plea hearing, where it again went through the rights Flynn was waiving; Flynn again entered the plea and a sentencing hearing was scheduled for a later date. At the sentencing hearing, Flynn orally motioned
Invalid Guilty Plea
{¶ 5} In his sole assigned error, Flynn argues that the trial court erred by accepting his plea because the trial court failed to properly advise him of his privilege against compulsory self-incrimination.1
{¶ 6} The underlying purpose of
{¶ 7} Pursuant to Boykin v. Alabama (1969), 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274, the privilege against compulsory self-incrimination is a constitutional right that requires strict compliance. Our review of the record indicates that at both plea hearings, the trial court asked Flynn whether he understood that by pleading guilty, he was “giving up [his] right to remain silent.” The court did not use the phrase “cannot be compelled to testify” as set forth in
{¶ 8} Although the trial court need not use the exact language contained in
{¶ 9} In a similar case, State v. Giovanni, 7th District No. 08 MA 150, 2009-Ohio-3333, the Seventh District held that the court had no duty to explain that the privilege against compulsory self-incrimination not only meant the defendant had the right to remain silent, but also that the state was prohibited from commenting on the defendant‘s failure to testify at trial. Flynn argues that Giovanni is distinguished because in that case, along with the defendant entering an oral plea, the plea was also placed in writing. However, the Seventh District did not base its decision on the fact the plea was placed in writing. The court held no explanation was necessary because
Judgment is affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
SEAN C. GALLAGHER, A.J., CONCURS;
KENNETH A. ROCCO, J., CONCURRING:
{¶ 11} I agree with the majority‘s decision in this case, but write separately to note an issue for future consideration in a case in which it is properly raised.
{¶ 12} The trial court in this case informed appellant that, by pleading guilty, he was “giving up [his] right to remain silent.” The phrase “the right to remain silent,” made familiar by the United States Supreme Court‘s decision in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, arises in the context of custodial interrogation, in which the element of compulsion necessarily is already present. I am not convinced that the use of that phrase is adequate to inform a defendant that he cannot be compelled to testify at his own trial. In this case, however, the appellant did not raise this issue. Therefore, I leave this question to future consideration.