STATE OF OHIO, Plaintiff-Appellee, v. JAMES JASON RUDAI, Defendant-Appellant.
Case No. 18 BE 0002
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY
November 5, 2018
2018-Ohio-4464
Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 17 CR 310
BEFORE: Kathleen Bartlett, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT: REVERSED AND REMANDED
Atty. Scott Lloyd, 147-A West Main Street, St. Clairsville, Ohio 43950, for Appellee, and
Atty. John Jurco, P.O. Box 783, St. Clairsville, Ohio 43950, for Appellant.
{¶1} Defendant James Jason Rudai appeals his conviction in the Belmont County Court of Common Pleas for one count of failure to comply with the order or signal of a police officer, in violation of
{¶2} Appellant signed a waiver of indictment, and, at the plea colloquy, was informed by the trial court that, by virtue of his plea, he was waiving his right to a “public trial.” In his sole assignment of error, Appellant contends that his guilty plea is invalid because the trial court did not inform him of his constitutional right to a “jury trial.” Because the trial court did not strictly comply with the notification requirements in
{¶3} Guilty pleas are governed by
{¶4} The trial court must both inform the defendant, and determine that he understands, that by the plea he is waiving his constitutional rights to a jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial where he cannot be compelled to testify.
{¶5} Although the trial court must strictly comply with
{¶6} To the extent that the Barker Court relied on the written plea agreement, the decision appears to be at odds with the Supreme Court‘s earlier decision in Veney, supra. Veney holds that the trial court has the duty to inform the defendant of his constitutional rights at the plea hearing and “cannot simply rely on other sources to convey these rights to the defendant.” Veney at ¶ 29 (invalidating plea where court failed to orally inform defendant of his constitutional right to require the state to prove his guilt beyond a reasonable doubt).
{¶7} In order to resolve the tension between the law announced in the foregoing cases, Barker limited Veney to situations where the trial court omits any discussion of a constitutional right in the oral colloquy. An appellate court may rely on a written plea agreement only where the trial court‘s colloquy relating to a particular constitutional right is ambiguous, not where there is no mention whatsoever in the colloquy of the constitutional right. Barker at ¶ 23-27. In cases where a reviewing court is faced with the complete omission of the constitutional right to a jury trial, courts have relied on references to a “jury” made in other parts of the plea colloquy to validate the plea. See, e.g., State v. Ballard, 66 Ohio St.2d 473, 481, 423 N.E.2d 115 (1981); State v. Hayward, 6th Dist. No. WD-17-010, 2017-Ohio-8611, ¶ 8, 12; State v. Smiddy, 2d Dist. No. 2014-CA-148, 2015-Ohio-4200, ¶ 6, 15; State v. Young, 11th Dist. No. 2009-T-0130, 2011-Ohio-4018, ¶ 39-40.
Appellant‘s sole assignment of error reads:
The conviction and resulting sentence should be overturned and reversed because the trial court violated the appellant‘s constitutional rights at the
plea hearing by not informing him that he had the right to a jury trial, which he would waive by entering the plea agreement.
{¶8} At the plea hearing, the trial court made the following inquiry: “Do you understand by pleading guilty you give up the right a [sic] speedy and public trial?” Appellant responded, “I do.” (12/4/17 Plea Hrg. 5). There is no reference to a “jury” or “jury trial” in any other part of the hearing transcript.
{¶9} Earlier this summer, this Court squarely held that the use of the phrase “public trial,” instead of “jury trial,” in a plea colloquy, without any other reference to a “jury” or “jury trial” in the colloquy, invalidates the plea, regardless of whether the phrase “jury trial” appears in the written plea agreement. State v. Thomas, 7th Dist. No. 17 BE 0014, 2018-Ohio-2815; see also State v. Gheen, 7th Dist. No. 17 BE 0023, 2018-Ohio-1924 and State v. Raphael-Hopkins, 7th Dist. No. 17 BE 0017, 2018-Ohio-1340 (on no merit briefs filed pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist. 1970)). Because the facts here are indistinguishable from the facts in Thomas, Appellant‘s sole assignment of error is sustained, his conviction is reversed, and this matter is remanded to the trial court for further proceedings.
Waite, J., concurs.
Robb, P.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.
Bartlett, J., concurs.
Waite, J., concurs.
Robb, P.J., concurs.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.