STATE OF OHIO, Plaintiff-Appellee, - vs - GREG ALAN PERKINS, Defendant-Appellant.
CASE NO. 2018-T-0012
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
December 24, 2018
[Cite as State v. Perkins, 2018-Ohio-5335.]
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR 00646. Judgment: Affirmed.
Andrew R. Zellers, Richard G. Zellers & Associates, Inc., 3810 Starrs Centre Drive, Canfield, OH 44406 (For Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Greg Alan Perkins, appeals from the judgment of conviction, entered by the Trumbull County Court of Common Pleas after his plea of guilty to one count of trespass in a habitation when a person is present or likely to be present. At issue is whether the trial court adequately advised appellant of his constitutional rights prior to accepting his guilty plea and whether the trial court erred in failing to advise him of his right to appellate counsel after entering sentence. We affirm.
{¶3} “The trial court committed an error when it failed to advise the defendant-appellant of his right to a jury trial and his right to counsel on appeal, thus violating his 6th, 5th, and 14th Amendment rights under the U.S. Constitution and his rights under Article 1, Section 10 of the Ohio Constitution.”
{¶4} Appellant argues that his plea is invalid due to the trial court‘s failure to inform him that his guilty plea (1) waives his right to a jury trial and (2) that he is entitled to counsel on appeal.
{¶5} Pursuant to
{¶6} Compliance with
{¶7} The Ohio Supreme Court has emphasized that a trial court must strictly comply with
[P]ursuant to the strict-compliance standard set forth in Ballard, the trial court must orally inform the defendant of the rights set forth in
Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be valid. Although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to convey these rights to the defendant. “We cannot presume a waiver of these * * * important federal rights from a silent record.” Boykin[ v. Alabama, 395 U.S. 238,] 243 [(1969)]. When the record confirms that the trial court failed to perform this duty, the defendant‘s plea is constitutionally infirm, making it presumptively invalid. See Ballard, [supra,] at 481; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶12. Veney, supra, at ¶29.
{¶9} With the foregoing standards in mind, we shall address appellant‘s initial argument. Here, the trial court made the following advisements germane to the issue before us:
{¶10}
“The State of Ohio would have to prove the following elements by proof beyond a reasonable doubt to the unanimous satisfaction of a jury; that is, that you did by force, stealth or deception, did recklessly trespass in 196 Champion Township, a permanent or temporary habitation of any person when any person other than the accomplice of the offender is present or likely to be present or likely to be present in Trumbull County, Ohio. Do you understand what the State of Ohio would have to prove regarding this count?” (Emphasis added.)
{¶11} Appellant responded in the affirmative.
{¶12} The court continued: “Nobody has to plead to any charge. You have the right to go forward with a trial and have the State of Ohio prove its case by proof beyond a reasonable doubt. Do you understand that?” (Emphasis added.) Again, appellant indicated he understood.
{¶13} And, after appellant addressed the court, requesting leniency in sentencing, the court acknowledged his comment and, in light of the joint sentencing recommendation, the trial court stated: “* * * it‘s not going to get any better * * * [un]less you go to trial and get acquitted.” (Emphasis added.) Appellant responded “Yes, sir.”
{¶15} Other appellate districts, including this court, have addressed situations similar to the facts in the case sub judice. In State v. Young, 11th Dist. Trumbull No. 2009-T-0130, 2011-Ohio-4018, the trial judge did not specifically use the word “jury” each time it referenced the defendant‘s right to a trial. This court noted, however, that the defendant was advised, as appellant was in this case, that “[t]he State of Ohio would have to prove the following elements by proof beyond a reasonable doubt to the unanimous satisfaction of a jury[.]” The Young court then pointed out that the defendant signed a written plea agreement which stated that the court advised him, inter alia, of his constitutional right to a jury trial. The court in Young emphasized that, in light of Veney, a written waiver, by itself, would be insufficient to meet the dictates of
{¶16} Moreover, in State v. Smiddy, 2d Dist. Clark No. 2014-CA-148, 2015-Ohio-4200, the Second Appellate District addressed the same issue. In Smiddy, the trial court asked the defendant if he understood that he had “the right to a trial,” without reference to the right to a trial by jury. It later stated that the state would have the burden to prove beyond a reasonable doubt each element of the offenses and that he
{¶17} And, in State v. Hayward, 6th Dist. Wood No. WD-17-010, 2017-Ohio-8611, a trial court did not specifically advise the defendant of his right to a “jury trial.” Instead, it directed his attention to page six of the written waiver of rights the defendant had executed, where the right to a jury trial was explicitly referenced. And, perhaps more importantly, the trial court explained, during the plea colloquy, that if the defendant chose not to testify, it would “instruct the jury” that it could not weigh this as a factor in determining his guilt or innocence. In light of Young, supra, and Smiddy, supra, the Sixth District determined that “the trial court explained the right to a jury trial in a manner reasonably intelligible to [the defendant], and therefore, complied with
{¶18} In the instant matter, even though the trial court did not expressly state appellant had a right to a jury trial, which he was waiving by entering the guilty plea, it did emphasize that, if the matter were tried, the state would have to prove each element to the unanimous satisfaction of the jury. And, as in Young, supra, appellant signed a written plea form stating he was advised by the court and counsel that he was waiving, among other things, his right to a jury trial. In light of all the circumstances, we conclude appellant was meaningfully informed of his right to a jury trial and the trial court‘s failure to provide a rote recitation of
{¶19} Appellant next argues the trial court committed reversible error by failing to advise him of his right to assistance of counsel on appeal at sentencing. Appellant pleaded guilty to an amended indictment and a jointly recommended sentence was imposed. Courts have held that “‘[w]here a defendant has been convicted following a guilty or no contest plea, the court is not constitutionally required to advise the defendant of his appeal rights.‘” State v. Lowe, 2d Dist. Clark No. 2016-CA-18, 2017-Ohio-27, ¶9 quoting State v. Houston, 6th Dist. Erie No. E-03-059, 2004-Ohio-6462, ¶8. And, even if we declined to follow the foregoing authority, appellant filed a motion for delayed appeal, which was granted. In the judgment granting appellant leave to file the delayed appeal, this court also appointed counsel. Accordingly, appellant suffered no prejudice from the trial court‘s omission.
{¶20} Appellant‘s sole assignment of error lacks merit.
{¶21} For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
{¶22} I find merit in the assignment of error. As the majority observes, the
{¶23} I respectfully dissent.