STATE OF OHIO, Plaintiff-Appellee, v. JAJUAN A. McKEITHEN, Defendant-Appellant.
Case No. 17 CO 0014
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
February 5, 2019
2019-Ohio-493
BEFORE: Kathleen Bartlett, Gene Donofrio, Carol Ann Robb, Judges.
Criminal Appeal from the Court of Common Pleas of Columbiana County, Ohio Case No. 2014 CR 340
Atty. John Gamble, 105 South Market Street, Lisbon, Ohio 44432, for Appellee.
OPINION AND JUDGMENT ENTRY
JUDGMENT: AFFIRMED
{¶1} This is an appeal following the Defendant-Appellant‘s guilty plea and sentencing hearing. Appellant contends that the trial court failed to properly advise him of his right to confront witnesses/accusers against him at his plea hearing, in violation of
{¶2} For the following reasons, Appellant‘s assignments of error are without merit. Accordingly, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} Defendant-Appellant JaJuan A. McKeithen (hereinafter “Appellant“), was indicted on September 17, 2015 for possession of heroin, a 1st degree felony in violation of
{¶4} Appellant pled not guilty.
{¶5} On August 3, 2016, a hearing was held on Appellant‘s motion to suppress regarding recorded telephone calls made by him to a third-party from a police department telephone while he was locked to a prisoner‘s bench. The trial court overruled the motion to suppress, finding that Appellant had no expectation of privacy in using a jailhouse telephone, especially when he had past “experience with phones in the prison system. . . .” (10/5/16 JE, pp. 16-17; Record on Appeal at p. 161).
{¶6} The matter was scheduled for trial on February 27, 2017. The case did not proceed to trial because Appellant changed his plea to guilty, and on March 8, 2017, a change of plea hearing was held. The trial court engaged in colloquy with Appellant prior to accepting his guilty plea. The relevant colloquy for this appeal pertains to the trial court‘s duty to advise the Appellant of his right to confront witnesses/accusers against him. The relevant colloquy occurred:
The Court: By offering to plead guilty today, Mr. McKeithen, you are waiving or giving up certain constitutional rights. You have a right to either a jury trial or a trial to the Court without a jury; do you understand that?
Mr. McKeithen: Yes.
The Court: And by offering to plead guilty, you are waiving or giving up your right to have a trial; do you understand that?
Mr. McKeithen: Yes.
The Court: By offering to plead guilty you are giving up your right to challenge any evidence or testimony that might be introduced against you at trial; do you understand that.
Mr. McKeithen: Yes.
The Court: By offering to plead guilty, you are giving up your right to call witnesses or have them subpoenaed to testify on your behalf at trial; do you understand that?
Mr. McKeithen: Yes, I do.
The Court: By offering to plead guilty, you are also giving up your right to testify and present evidence at trial on your own behalf; do you understand that?
Mr. McKeithen: Yes.
The Court: At trial you would have the right to remain silent, and if you chose to do so nobody could comment on that silence; do you understand that?
Mr. McKeithen: Yes, I do.
The Court: By offering to plead guilty, you are also giving up your right to remain silent. You are also giving up your right against self-incrimination; do you understand that?
Mr. McKeithen: Yes.
The Court: If you had a trial the State of Ohio would have the burden of proving your guilt beyond a reasonable doubt on each element of the offense, as well as the specification; do you understand that?
Mr. McKeithen: Yes, I do.
The Court: By offering to plead guilty, you are waiving or giving up your right to require the State to prove your guilt beyond a reasonable doubt;
do you understand that? Mr. McKeithen: Yes, I do.
The Court: And Mr. McKeithen, by offering to plead guilty, you are giving up your right to appeal any adverse decision that may have been made on any motions in this case; do you understand that?
Mr. McKeithen: Yes, I do.
The Court: By offering to plead guilty, you are also waiving your right to challenge any other violations of your rights that may have taken place under Ohio law or the United States Constitution; do you understand that?
Mr. McKeithen: Yes, I do.
The Court: Did Attorney Gillison review with you, Mr. McKeithen, your constitutional rights, as well as the constitutional rights you would be waiving or giving up by offering to plead guilty here today?
Mr. McKeithen: Yes.
(3/8/17 Tr., pp. 11-14).
{¶7} At the change of plea hearing, the trial court was advised that the Appellant had reviewed with his counsel the Felony Plea Agreement, the written Judicial Advice to Defendant1, and his Response to the Court2, and that he signed them voluntarily and did not have any questions. (3/9/17 JE; 3/8/17 Tr., pp. 6-8). The trial court held that based on the dialogue at the hearing, as well as the Felony Plea Agreement, the Judicial Advice to the Defendant, and the Defendant‘s Response to the Court, “the Court hereby finds that the Defendant has a knowing and intelligent understanding of the consequences of his change of plea including the nature of the charge, the minimum and maximum penalties and sanctions, including post release control, and the constitutional rights he is waiving.” (3/9/17 JE).
{¶8} Guilty pleas are governed by
{¶9} Appellant contends that the “right to confrontation” and the “right to challenge any evidence or testimony” are not the same and the trial court failed to inform Appellant of his right to confront witnesses against him. In State v. Martinez, No. 03 MA 196, 2004-Ohio-6806, ¶ 13, this Court held that strict compliance with
{¶10} In State v. Barker, the Ohio Supreme Court held that the trial court‘s description of the defendant‘s constitutional right to compulsory process as the “right to call witnesses to speak on your behalf” was a reasonably intelligible explanation to the defendant of that constitutional right. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶¶ 15, 20. The Barker Court further stated “[t]he use of common, everyday words, including ‘call,’ instead of a rote recitation of legal terminology, can assist the defendant in understanding the rights forfeited by entry of a plea.” Id. at ¶ 20.3 This Court has acknowledged that “the oral colloquy does not need to contain a ‘rote recitation’ of
{¶11} This Court has similarly held that strict compliance with
{¶12} Also, the defendant in Reynolds had received the same documents as in the instant case, the document entitled “Judicial Advice to Defendant” from the trial court, and the worksheet entitled “Defendant‘s Response to the Court” which indicated
{¶13} Appellant attempts to analogize cases where the Rule 11 colloquy was completely absent of the required constitutional rights, and sought to use written plea agreements to make up for the lacking advisements.4 Here, the trial court did not fail to orally advise Appellant of the right to confront witnesses, but used language that varied from the literal language in
Second Assignment of Error: The State intended to use tape-recorded telephone calls that Appellant McKeithen made when he was in custody. His “one phone call.” The trial court erred when it did not grant McKeithen‘s motion to suppress the evidence obtained from that [sic] telephone calls.
{¶15} The trial court advised Appellant “by offering to plead guilty, you are giving up your right to appeal any adverse decision that may have been made on any motions in this case; do you understand that?” (3/8/17 Tr., pp. 13-14). Appellant responded “[y]es, I do.” (3/8/17 Tr., p. 14). Appellant did in fact waive his rights as discussed in his first assignment of error. Therefore, his waiver of the right to appeal an adverse decision on any motions made prior to his guilty plea is upheld.
{¶16} In addition to the waiver of his right to appeal any adverse motions in his case, the record reveals that Appellant was placed on notice that upon entering the police department, he was subject to video and audio recording. At the hearing, the officer testified that the sign posted at the East Liverpool Police Department states “WARNING ALL PERSONS WITHIN POLICE DEPARTMENT ARE SUBJECT TO VIDEO AND AUDIO RECORDING.” (8/3/16 Tr., pp. 15-16; State‘s Ex. 1). In its entry, the trial court stated “[e]ven if the Defendant was not on sufficient notice, courts have recognized the independent right to monitor and record telephone calls in the interest of institutional security. No countervailing interest, such as attorney-client privilege, is implicated in this case.” (10/5/16 JE at 17). Courts have upheld the practice of telephone monitoring on two independent grounds: first, when placed on notice of telephone monitoring, the prisoner does not have a requisite subjective expectation of privacy to incur a Fourth Amendment violation, and second that society is not willing to recognize any such subjective expectation of privacy because the institutional interest in security outweighs the prisoner‘s privacy rights. State v. Myers, 5th Dist. No. 03-CA-61, 2004-Ohio-3052, ¶ 58. Appellant was locked to a prisoner‘s bench within the police
{¶17} Thus, based on all of the above, the Appellant‘s first and second assignments of error are without merit. Therefore, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Robb, J., concurs.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.