State v. ReeceState v. Reece
{¶ 2} On March 14, 2003, in case No. 03CR03-1763, defendant was indicted on two counts of trafficking in cocaine, in violation of R.C.
{¶ 3} At a hearing held on January 12, 2004, defendant pled guilty to count one of the indictment and to one count of trafficking in cocaine as a felony of the third degree, a stipulated lesser-included offense of count two of the indictment. Before the trial court accepted defendant's guilty pleas, it advised him as follows regarding his constitutional rights:
If we were to have a trial, you would have a right to have a jury come in, listen to the evidence and make a decision of whether you were guilty of anything or not. You would have a right to have the state be required to bring witnesses in to present their testimony where you or in all likelihood, Mr. Bobbitt in your behalf would have a right to cross examine these witnesses. You would have a right to have witnesses come in and testify for you. If they didn't come in voluntarily, the court could compel or require them to come in and present their testimony. You would have a right to have the state be required to present sufficient evidence to establish your guilt beyond a reasonable doubt before you could be found guilty of anything, and you could remain silent, although you could testify if you wanted to, but hopefully, that will occur only again after you have consulted with Mr. Bobbitt and you made that decision that you wanted to testify.
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Do you understand the rights you have and the rights you are giving up by not having a trial?
(Jan. 12, 2004 Tr. at 9-10.) The defendant answered "Yes, sir." (Id. at 10.)
{¶ 4} The trial court accepted defendant's plea of guilty to one count of trafficking in cocaine, a felony of the first degree, and one count of trafficking in cocaine, a felony of the third degree. The trial court ordered a presentence investigation and scheduled the sentencing hearing for February 19, 2004.
{¶ 5} On February 13, 2004, defendant filed a motion to withdraw his guilty plea. On May 10, 2004, the trial court granted said motion and reassigned the case for trial.
{¶ 6} On June 30, 2004, in case No. 04CR04-4370, defendant was indicted on one count of possession of cocaine, in violation of R.C.
{¶ 7} On October 25, 2004, the trial court held a plea hearing as to case Nos. 03CR03-1763 and 04CR04-4370. The record reveals that, at that hearing, the trial court advised defendant of his right to a jury trial, the right to confront accusers, and the right to compulsory process of witnesses, but it did not advise defendant of the privilege against self-incrimination.
{¶ 8} In case No. 03CR03-1763, defendant pled guilty to one count of trafficking in cocaine, a violation of R.C.
{¶ 9} A sentencing hearing was held on April 28, 2005. In case No. 03CR03-1763, the trial court sentenced defendant to six years in prison. In case No. 04CR04-4370, the trial court imposed a sentence of seven years on each count. The court ordered the sentences in case No. 04CR04-4370 to run concurrently with each other and consecutively with the sentence in case No. 03CR03-1763. Thus, defendant was sentenced to a total of 13 years in prison. The trial court entered judgment in both cases on May 2, 2005.
{¶ 10} Defendant timely filed a notice of appeal in both cases, and on June 3, 2005, this court consolidated the two appeals. Defendant has set forth the following three assignments of error for our review:
FIRST ASSIGNMENT OF ERROR
APPELLANT'S CONSTITUTIONAL RIGHTS PURSUANT TO THE
SECOND ASSIGNMENT OF ERROR
THE COURT ERRED IN SENTENCING APPELLANT WITHOUT MAKING APPROPRIATE FINDINGS ON THE RECORD.
THIRD ASSIGNMENT OF ERROR
APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 11} Under his first assignment of error, defendant contends that the trial court failed to comply with
(2) 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 and doing all of the following:
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(c) Informing 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.
{¶ 12} The procedural requirements for accepting a guilty plea set forth in
{¶ 13} In Ballard, at 478, the Supreme Court of Ohio held "that a guilty plea is constitutionally infirm when the defendant is not informed in a reasonable manner at the time of enteringhis guilty plea of his rights to a trial by jury and to confront his accusers, and his privilege against self-incrimination, and his right of compulsory process for obtaining witnesses in his behalf." (Emphasis added.) The trial court need not use the exact language of
{¶ 14} Regarding the nonconstitutional requirements of
{¶ 15} Defendant argues that his guilty pleas were invalid because the trial court did not refer, in any manner, to his privilege against self-incrimination at the October 25, 2004 hearing. The state concedes that the trial court did not refer to the privilege against self-incrimination at that hearing. However, the state maintains that, although the trial court did not orally explain to defendant his privilege against self-incrimination the second time he pled guilty, the court had already orally advised him as to his constitutional rights, including the privilege against self-incrimination, at the January 12, 2004 hearing when defendant originally pled guilty in case No. 03CR03-1763. According to the state, the record of this case, which includes a transcript of the January 12, 2004 hearing, demonstrates that defendant understood all of his rights. In addition, the state notes that defendant had counsel both times he entered guilty pleas, and he signed an entry of guilty plea, which explained his rights, each time he pled guilty.
{¶ 16} The state cites State v. Billups (1979),
{¶ 17} Defendant's challenge to his guilty pleas involves a constitutional right — his privilege against self-incrimination. In order to properly inform defendant of that right, the trial court was required to strictly comply with the requirements of
{¶ 18} The record reveals that, at the October 25, 2004 hearing, the trial court did not, in any manner, refer to the privilege against self-incrimination in its colloquy with defendant. Thus, the trial court did not strictly comply with the requirements of
{¶ 19} Based on the foregoing, we conclude that the trial court failed to comply with
{¶ 20} Defendant argues in his second assignment of error that the trial court erred in sentencing him without making the appropriate findings on the record. By his third assignment of error, defendant argues that he received ineffective assistance of counsel at trial. As to his ineffective assistance of counsel claim, defendant argues that his trial counsel was ineffective in not objecting to the trial court's failure to comply with
{¶ 21} For the foregoing reasons, defendant's first assignment of error is sustained, and his second and third assignments of error are moot. The judgments of the Franklin County Court of Common Pleas are reversed, and this matter is remanded to that court for further proceedings in accordance with law and consistent with this opinion.
Judgments reversed; cause remanded.
Brown and McGrath, JJ., concur.