STATE OF OHIO v. SHAWN M. MILLER
No. 105363
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 8, 2018
[Cite as State v. Miller, 2018-Ohio-843.]
BEFORE: E.T. Gallagher, J., Keough, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-16-604581-A
Patrick J. Milligan
Patrick J. Milligan Co., L.P.A.
18615 Detroit Avenue, Suite 201
Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Glen Ramdhan
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{1} Defendant-appellant, Shawn Miller, appeals his convictions, and raises one assignment of error:
The trial court committed reversible error in accepting appellant‘s plea without inquiring as to whether appellant understood that by making the plea he was waiving certain constitutional rights as set forth in
Crim.R. 11(C)(2)(c) .
{2} We find merit to the appeal, reverse the trial court‘s judgment, and remand to the trial court to vacate Miller‘s guilty pleas.
I. Facts and Procedural History
{3} Miller was charged with four counts of attempted murder, five counts of aggravated arson, one count of arson, five counts of felonious assault, and one count of breaking and entering. Miller agreed to plead guilty to one count of aggravated arson, one count of arson, and
II. Law and Analysis
{4} In his sole assignment of error, Miller argues his guilty pleas should be vacated as involuntarily made because the trial court failed to ensure that he understood that, by pleading guilty, he was waiving the constitutional rights enumerated in
{5} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The purpose of
{6} We review the trial court‘s compliance with the requirements of
{7}
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 * * * [i]nforming 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.
{8} Strict compliance equates to literal compliance with
{9} Although verbatim language is not required, the Ohio Supreme Court encourages a word-for-word recitation of
it is important to emphasize that the interest of finality is to be protected when accepting a guilty plea. With that interest in mind, the best method of informing a defendant of his constitutional rights is to use the language contained in
Crim.R. 11(C) , stopping after each right and asking the defendant whether he understands the right and knows that he is waiving it by pleading guilty. We strongly recommend such procedure to our trial courts.
{10} During the
THE COURT: As good as the plea bargains might sound to people, nobody is under an obligation to accept them. You‘re welcome to stay with not guilty and go to trial instead. Right, Mr. Miller?
* * *
THE COURT: And if you go to trial, you always have your lawyers. Can‘t afford one, one is appointed no cost to you. Understood, * * * Mr. Miller?
DEFENDANT MILLER: Yes, Your Honor.
THE COURT: And you know that at trial you‘re presumed innocent. The burden is on the prosecutor. They have to come in with evidence. They have to prove each of the original charges against you with evidence beyond a reasonable doubt.
If there is one or more charges on the list that they cannot prove beyond a reasonable doubt, you would be acquitted and discharged of that count if they couldn‘t prove to that degree. Understood, Mr. Miller?
DEFENDANT MILLER: Yes, Your Honor.
* * *
THE COURT: So at trial you‘re welcome to take the witness stand in your defense but you have a right to stay off the stand and remain silent. No one can make you talk or even comment on your silence. Understood, * * * Mr. Miller?
* * *
DEFENDANT MILLER: Yes, Your Honor.
THE COURT: And do you understand that you and your lawyer get to cross-examine all the witnesses that the prosecutor brings in here to try to build a case against you[.]
* * *
You understand that? * * * Do you, Mr. Miller?
DEFENDANT MILLER: Yes.
THE COURT: Okay. So the other thing you need to know, your lawyer can issue subpoenas to select your witnesses, get them on the witness stand. The Court will enforce those subpoenas to help you get them here to testify for you. * * * Understood, Mr. Miller?
DEFENDANT MILLER: Yes, Your Honor.
THE COURT: Any questions from any of you?
* * *
DEFENDANT MILLER: No.
(Tr. 41-45.) After ensuring that the defendants understood each of these constitutional rights, the court explained the nature of the charges and their potential penalties. However, the trial court never expressly stated, or inquired as to whether Miller understood, that by pleading guilty, he was waiving his constitutional rights.
{11} Miller contends the trial court was required under
{12} The Tenth District Court of Appeals addressed this issue in State v. Ellis, 10th Dist. Franklin No. 14AP-912, 2015-Ohio-3438, 10. The trial court in Ellis carefully explained all the constitutional rights enumerated in
{13} The Seventh District Court of Appeals also addressed this issue in State v. Strebler, 7th Dist. Mahoning No. 08 MA 108, 2009-Ohio-1200. As in Ellis, the trial court in Strebler
{14} We agree with the Seventh District‘s interpretation that strict compliance with the rule is required when considering whether a defendant knowingly, intelligently, and voluntarily waived the constitutional rights enumerated in
A trial court must strictly comply with
Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one‘s accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant‘s plea is invalid.
(Emphasis added.) Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at syllabus. Indeed, the court in Veney reaffirmed its prior decision in Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 in which the Ohio Supreme Court held:
Prior to accepting a guilty plea from a criminal defendant, the trial court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses. (Boykin v. Alabama, 395 U.S. 238, followed.)
Ballard at paragraph one of the syllabus.
{15} Common sense dictates that by pleading guilty, the defendant is not going to receive a trial nor require the state to prove the charges beyond a reasonable doubt, and there will be no need to subpoena and cross-examine witnesses. Strebler at 36. There is an implicit
{16} The trial court ensured that Miller understood all of the constitutional rights relative to his right to trial, but neglected to ensure that Miller understood that his guilty pleas constituted a waiver of those rights. Therefore, because the trial court failed to strictly comply with the requirements of
{17} The sole assignment of error is sustained.
{18} The trial court‘s judgment is reversed, Miller‘s pleas are vacated, and we remand the case to the trial court for further proceedings.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION
{19} It is true that the court never used the word “waive” in its plea colloquy with Miller. And it is also true that State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, specifically states that compliance with
{20} In fact, we have long held that a trial judge need not explicitly use the word “waive” when advising the defendant of his rights. See, e.g., State v. Elmore, 8th Dist. Cuyahoga No. 56246, 1990 Ohio App. LEXIS 194, 1-2 (Jan. 18, 1990) (“The court could determine that defendant fully understood that he was waiving various rights, despite the fact that the court did not use the word ‘waive.‘“); State v. Bryant, 8th Dist. Cuyahoga No. 36778, 1978 Ohio App. LEXIS 9448, 3-4 (Jan. 12, 1978) (“It is true that the court never used the exact words, ‘waiving your rights‘; however, it is clear from the circumstances surrounding the plea that the appellant was being told that he was giving up his rights to go to trial.“).
{21} In this case, the trial judge decided to conduct Miller‘s plea colloquy in language that she thought he would understand — instead of phrasing the colloquy in terms of what rights
{22} We have on several occasions affirmed guilty pleas on nearly identical facts. For example, in State v. Boysaw, 8th Dist. Cuyahoga No. 52052, 1987 Ohio App. LEXIS 6902, 5 (Apr. 16, 1987), Boysaw argued that he did not enter a knowing and intelligent guilty plea because the court did not tell him that his guilty pleas waived certain rights. This is how the court handled the plea colloquy in that case:
THE COURT: I must advise you and I am sure you know that you don‘t have to plead to anything unless you desire. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: You could have a trial before a judge alone or a judge and jury. You know that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Further, if you wish the trial, you will have the right to be confronted by anyone who testifies against you and your lawyer would have an opportunity to cross-examine those people. You could use the subpoena process to require witnesses to testify in your behalf.
And I remind you that it‘s always necessary that the State of Ohio prove your guilt beyond a reasonable doubt. It‘s not necessary that you prove your innocence.
Are you aware of all those rights?
THE DEFENDANT: Yes, your Honor.
THE COURT: Further, if you wish a trial, you have the right to take the witness stand and testify in your own behalf or in the alternative, you could remain silent. If you indeed choose to remain silent, the State would be prevented from commenting on the fact that you exercised your constitutional right.
Are you aware of all those rights?
THE DEFENDANT: Yes, your Honor. (Emphasis sic.)
Id. at 5-6.
{23} We stated that “[w]hile the court did not use the word ‘waive,’ it sufficiently explained the defendant‘s choice whether to retain those rights rather than pleading guilty.” Id. at 6. For this reason, we found that the court complied with
{24} Likewise, in State v. Valentine, 8th Dist. Cuyahoga No. 51929, 1987 Ohio App. LEXIS 7205, 3 (May 28, 1987), the court informed Valentine of his
{25} Finally, in State v. Hinzman, 8th Dist. Cuyahoga No. 59062, 1991 Ohio App. LEXIS 4728, 5 (Oct. 3, 1991), the court told Hinzman:
You have trial rights. I‘ll explain them to you. The prosecutor at a trial is obliged to prove your guilt beyond a reasonable doubt. In his efforts to do this, he would produce witnesses whom you have a right to confront and through your counsel cross-examine. You may have witnesses subpoenaed in your own favor. You personally may testify. You may exercise your constitutional privilege and refuse to testify, to which fact the prosecutor may not comment.
Id. at 5.
{27} Perhaps it would have been better in this case for the trial judge to speak in terms of the rights that Miller would waive by pleading guilty rather than the rights that Miller would have if he elected to go trial. But these are two sides of the same coin. Miller was aware that his guilty plea constituted a complete admission of guilt. The court asked, “[d]oes everybody understand that pleading guilty is like giving a speech, and the speech goes, * * * I did these crimes right here, and I admit I did each one of them.” Miller also knew that his guilty plea meant that he would not be getting a trial. The court stated, “[a]s good as the plea bargains might sound to people, nobody is under an obligation to accept them. You‘re welcome to stay with not guilty and go to trial instead.” Under the totality of the circumstances, Miller knew what rights he would lose if he pleaded guilty, or in the inverse used by the court, the rights he would have had if he went to trial. The court meaningfully conveyed the substance of Miller‘s rights. That was compliance enough for
{28} I respectfully dissent.