State v. GiovanniState v. Giovanni
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney, Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Damian Billak, 100 East Federal Street, Suite 101, Youngstown, Ohio 44503
JUDGES: Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Mary DeGenaro
¶{1} Defendant-appellant Marco Giovanni appeals from his conviction of aggravated vehicular homicide which was entered upon his guilty plea in the Mahoning County Common Pleas Court. He contends that his plea was not entered knowingly, voluntarily or intelligently for three reasons. First, he alleges that the court should have advised him that the right against self-incrimination bars the state from commenting on his failure to testify. Second, he claims that the court should have advised him about the existence of a no contest plea. Third, he complains that the court failed to disclose the elements of the offense. For the following reasons, appellant’s arguments are without merit, and his plea and conviction are affirmed.
STATEMENT OF THE CASE
¶{2} On Christmas Day in 2004, appellant’s vehicle was involved in a collision. His passenger died. On March 17, 2005, appellant was indicted for aggravated vehicular homicide in violation of
¶{3} After three years of pretrials and continued trial dates, appellant entered into a plea agreement. On April 28, 2008, he agreed to plead guilty to an amended charge of aggravated vehicular homicide in violation of
¶{4} In a June 17, 2008 entry, appellant was sentenced to a maximum sentence of five years in prison. Appellant filed the within timely appeal.
CRIMINAL RULE 11(C)(2)
¶{5} Appellant’s arguments all concern the trial court’s compliance with
¶{6} “In felony cases the court may refuse to accept a plea of guilty or a plea of 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:
¶{8} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
¶{9} “(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.”
ASSIGNMENT OF ERROR
¶{10} Appellant’s sole assignment of error provides:
¶{11} “THE TRIAL COURT DENIED MARCO GIOVANNI HIS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT ACCEPTED AN UNKNOWING, UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEA.”
¶{12} First, appellant contends that in advising him that he would be waiving his right against self-incrimination, the court failed to explain that no one could comment on his refusal to testify at trial, which statement was contained in the written plea agreement.
¶{13} A guilty plea is constitutionally infirm when the defendant is not informed in a reasonable manner at the time of his guilty plea of his privilege against self-incrimination. State v. Ballard (1981), 66 Ohio St.2d 473, 478. Appellant apparently believes that advisement of the right not to be compelled to testify against oneself is not reasonable without an additional explanation that the right is further preserved by prohibiting the state from commenting on his refusal to testify. However, the Supreme Court has held:
¶{14} “The best method of informing a defendant of his constitutional rights is to use the language contained in
¶{15} The Court went on to hold that the trial court’s language need not exactly match the language of
¶{16} In other words, there is no requirement of further explanation of the right because the current rule does not require the rights listed to be defined or otherwise mention that the defendant should be advised that no one can comment on his refusal to testify. Rather, the rule merely states that the defendant cannot be compelled to testify against himself at trial, and the Supreme Court prefers tracking this language. Consequently, in advising that the defendant cannot be compelled to testify against himself, the court need not further explain that no one can comment on a defendant’s failure to testify where the defendant answers that he understands his right against self-incrimination.
¶{17} Here, appellant was asked if he understood that he would be waiving his right not to testify at trial or any other proceeding if he so desired.1 He responded affirmatively. Thus, the court had no further obligation regarding the self-incrimination waiver under Ballard and Baier. As such, appellant’s first argument is without merit.
¶{18} Second, appellant complains that the court did not explain the effect of a no contest plea under
¶{19} Third, appellant complains that his plea was not voluntary with an understanding of the charges as required under
¶{20} Thus, the Supreme Court has held that where defense counsel states that he has reviewed the elements with the defendant or where the defendant’s written plea advises of this fact, then there is substantial compliance with the
¶{21} In viewing the totality of the circumstances here, we first note that appellant had been advised of the elements of the indicted offense at his arraignment and through service of the indictment. This case had been pending for over three years at the time of the plea. Appellant had two different retained attorneys throughout
¶{22} At the plea hearing, the state pointed out that the second degree felony aggravated vehicular homicide charge was being amended to a third degree felony and cited the substantive and procedural statutes. (Tr. 2). Appellant stated that he had read the plea agreement and understood that he was pleading to third degree felony aggravated vehicular homicide. (Tr. 3, 8). See State v. Davis, 4th Dist. No. 06CA21, 2007-Ohio-3944, ¶28 (knowledge of the nature of the charge is more general than knowledge of each element). He stated that his plea was voluntary and that everything in the document was fully explained to him. (Tr. 7-8).
¶{23} Moreover, the written plea specified that counsel advised appellant and that he fully understood the nature of the charge against him and the elements contained therein. (Plea Agreement at ¶2). As such, it is clear that appellant had an understanding of the nature of the charge. See Fitzpatrick, 102 Ohio St.3d 321 at ¶57-58; Johnson, 7th Dist. No. 07MA8 at ¶14.
¶{24} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.