STATE OF OHIO v. DIONTE PHILLIPS
No. 108423
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 5, 2020
2020-Ohio-800
KATHLEEN ANN KEOUGH, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-18-632326-A
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 5, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Janna R. Steinruck, Assistant Prosecuting Attorney, for appellee.
Buckeye Law Office, and P. Andrew Baker, for appellant.
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Appellant, Dionte Phillips, appeals his convictions following a guilty plea. For the reasons that follow, we affirm.
{¶ 2} In 2018, Phillips was named in a three-count indictment charging him with one count each of aggravated robbery, felonious assault, and abduction.
{¶ 3} Phillips now appeals, contending in his sole assignment of error that he did not enter a knowing, intelligent, and voluntary plea because the trial court failed to comply with
{¶ 4} Under
{¶ 5} A trial court must strictly comply with the mandates of
[Y]ou waive the right not to be compelled to be a witness against yourself, and that‘s also called your Fifth Amendment right to remain silent and not testify at trial. Do you understand that right?
(Tr. 27-28.) Phillips responded that he understood.
{¶ 7} Despite this advisement, Phillips contends on appeal that the advisement was inadequate because the trial court did not advise him that the state would not be permitted to comment on his silence if he chose not to testify.
{¶ 8} Phillips acknowledges that this court considered and rejected this argument recently in State v. McElroy, 8th Dist. Cuyahoga No. 104639, 2017-Ohio-1049, but urges this court to reconsider its decision. In McElroy, this court held that “when a defendant is instructed that he has the right to not testify at trial, it follows that he has a right to remain silent at trial and cannot be compelled to testify against himself.” Id. at ¶ 27-28. McElroy is a reaffirmance of this court‘s prior decision holding the same. See State v. Jones, 8th Dist. Cuyahoga No. 104189, 2016-Ohio-5712, ¶ 10-12 (concluding that the trial court properly advised the defendant that he did not have to testify against himself and rejecting the argument that his plea should be vacated because the trial court failed to advise him that the state could not comment on his right to remain silent and that the jury would be advised that any failure to testify may not be used against him); State v. Wangul, 8th Dist. Cuyahoga No. 84698, 2005-Ohio-1175, ¶ 12 (finding no authority requiring a court to inform a defendant at a plea hearing that his failure to testify could not be used against him);
{¶ 9} Although the trial court did not use the exact language set forth in
{¶ 10} In this case, the record demonstrates that the court explained the right not to testify in a manner reasonably intelligible to Phillips. He affirmatively stated he understood the right he was waiving, and there was no demonstration of confusion during the
{¶ 11} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, A.J., and
LARRY A. JONES, SR., J., CONCUR