STATE OF OHIO, Plaintiff-Appellee, - vs - DUSTIN T. HAYES, Defendant-Appellant.
CASE NO. 2014-P-0044
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
2016-Ohio-2794
[Cite as State v. Hayes, 2016-Ohio-2794.]
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH 44113 (For Defendant-Appellant).
COLLEEN MARY O‘TOOLE, J.
{¶1} Dustin T. Hayes appeals from the judgment entry of the Portage County Court of Common Pleas, sentencing him to an indefinite term of imprisonment of ten years to life for rape. Mr. Hayes asserts the trial court did not properly inform him of his constitutional right to remain silent during the
{¶3} July 21, 2014, Mr. Hayes moved this court for leave to file a delayed appeal, App.R. 5(A). By a judgment entry filed November 10, 2014, we denied the motion, since Mr. Hayes failed to file a notice of appeal in the trial court as required by rule. Mr. Hayes thereafter corrected this deficiency; and by a judgment entry filed May 11, 2015, we granted the motion for delayed appeal.
{¶4} Mr. Hayes assigns a single error: “The trial court erred in failing to inform appellant of the consequences of his plea pursuant to the Constitution of the United States and the State of Ohio, as well as
{¶5} “The standard for reviewing whether the trial court accepted a plea in compliance with
{¶6} “The United States and Ohio Constitutions require that a trial court, prior to accepting a plea of guilty or no contest, determine that the plea is entered into knowingly, intelligently, and voluntarily. State v. Johnson, 40 Ohio St.3d 130, 132, * * * (1988), citing Boykin v. Alabama, 395 U.S. 238, * * * (1969). From a constitutional standpoint, this requires a court to inform a defendant of five rights: his privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one‘s accusers, his right to have guilt proven by the state beyond a reasonable doubt, and the right to compulsory process to obtain witnesses – and then determine if the defendant understands these rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, * * *, ¶19;
{¶7} ”
{¶8} In support of his assignment of error, Mr. Hayes directs our attention to the following exchange during the plea hearing:
{¶9} The Court: “And, sir, do you understand you‘re not required to testify against yourself?”
{¶10} Mr. Hayes: “Yes.”
{¶11} The Court: “Are you waiving that right?”
{¶12} Mr. Hayes: “Yes.”
{¶13} Mr. Hayes contends this was constitutionally infirm, since the advisement did not tell him he had the right to remain silent throughout trial, and that this could not be used against him. He cites to two cases in support. The first is Gaines, supra. In that case, the trial court informed the defendant he had the “constitutional right ‘to remain silent and not to testify and (that) no one could comment on the fact that (he) did not testify at trial[.]‘” Id. at ¶7. The defendant asked whether this meant he need not
{¶14} “If we had proceeded to trial, the State of Ohio would have the burden of proof. That means that the jury would be impaneled, and the State of Ohio would have the burden of presenting to the jury information and testimony beyond a reasonable doubt that you committed these offenses, but you would not have any burden at all. Do you understand?” Id.
{¶15} The Eighth District concluded this response did not comply with
{¶16} Gaines is obviously distinguishable from this case. In Gaines, the defendant specifically asked about his right to remain silent at trial, and got no response from the trial court. In this case, Mr. Hayes did not indicate he did not understand his right to remain silent. Earlier in the colloquy, Mr. Hayes told the trial court he did not understand what waiver of his right to trial meant, and the court explained it to him until he did understand.
{¶17} Mr. Hayes also cites to the decision of the Tenth District in Truitt, supra. In that case, the trial court simply advised the defendant he had the “right to remain silent.” Id. at ¶12. On appeal, defendant contended this was insufficient, since the advisement did not include the fact the state could not compel him to testify. Id. at ¶15. The Tenth District disagreed, observing:
{¶18} “Here, * * * the trial court advised appellant of his ‘right to remain silent.’ (Tr. 4.) The plain meaning of the trial court‘s words suggest that appellant had the right to say absolutely nothing at trial, if he so desired. Intuitively, if a person remains silent
{¶19} Similarly, in this case, the trial court informed Mr. Hayes he could not be required to testify against himself. This clearly imports that he had an absolute right to remain silent. It was a sufficient advisement to comply with Ballard.
{¶20} The assignment of error lacks merit. The judgment of the Portage County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON, J.,
concur.