STATE OF OHIO, Plaintiff-Appellee, - vs - JOHN C. THOMPSON, Defendant-Appellant.
CASE NOS. 2018-P-0076 2018-P-0077
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 23, 2019
[Cite as State v. Thompson, 2019-Ohio-5407.]
CYNTHIA WESTCOTT RICE, J.
O P I N I O N
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Dennis Day Lager, P.O Box 2452, North Canton, OH 44720 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, John C. Thompson, appeals his convictions in the Portage County Court of Common Pleas, arising from separate prosecutions, following the entry of guilty pleas to passing bad checks, misuse of credit cards, and theft. We reverse and remand.
{¶2} On February 9, 2017, in Case No. 2016 CR 00294, appellant entered a written plea of guilty to one count of passing bad checks, a felony of the fifth degree, in violation of
{¶3} After accepting appellant’s plea of guilty, the trial court conducted a sentencing hearing during which it adopted the parties’ joint-sentencing recommendation, imposing the following prison terms: In Case No. 2016 CR 00294, appellant was sentenced to a prison term of one year for passing bad checks. In case No. 2016 CR 00900, appellant was sentenced to a prison term of one year for each count of felony-five theft (four counts); 18 months for each count of felony-four grand theft (nine counts); 18 months for felony-four theft from a person in a protected class; 36 months for felony-three grand theft; and 36 months for felony-three theft from a person in a protected class (seven counts). The one-year term for passing bad checks, the 36-month term for felony-three grand theft, and two counts of felony-three theft from a person in a protected class were ordered to be served consecutively to one another and the remaining terms were ordered to be served concurrently. Appellant’s aggregate prison sentence was ten years. Additionally, the trial court ordered appellant to pay restitution in the amount of $512,852.51 and advised him that he may be subject to post-release control upon his release from prison. Appellant now appeals and assigns two errors for our review. His first asserts:
{¶5} A guilty plea entered in a criminal case must be made knowingly, intelligently, and voluntarily to be valid under both the United States and Ohio Constitutions. Boykin v. Alabama, 395 U.S. 238, 241 (1969); State v. Engle, 74 Ohio St.3d 525, 527 (1996). Crim.R. 11 “was adopted to ensure that certain information necessary for entering a knowing, intelligent, and voluntary plea would be conveyed to a defendant.” State v. Gensert, 11th Dist. Trumbull, No. 2015-T-0084, 2016-Ohio-1163, ¶9. The Ohio Supreme Court has emphasized that a trial court must strictly comply with Crim.R. 11(C) as it relates to the waiver of constitutional rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶18, citing State v. Ballard, 66 Ohio St.2d 473, 479 (1981). Failure to literally comply with the language of
{¶6} [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
{¶7} Appellant contends the trial court erred in failing to fully advise him, during his plea colloquy, that he was waiving his right to a jury trial. As a result, he concludes, his plea of guilty is invalid because the trial court did not ensure it was entered knowingly, intelligently, and voluntarily.
{¶8} At the plea hearing, the trial court made the following advisements to appellant:
{¶9} By entering these pleas of guilty, you’re giving up your right to a trial. At that trial the prosecutor would have to prove beyond a reasonable doubt each and every element of the charges against you. Your attorney could then cross-examine, confront the witnesses who come in to testify for the State of Ohio, you could subpoena or compel witnesses, have them come in and testify for you and you could take the stand at that trial if you choose to do so. You have a constitutional right not to testify, but if you wanted to you could. That along with those rights to trial you are giving up by entering these pleas of guilty; do you understand?
{¶10} Appellant responded in the affirmative to the trial court’s query. The trial court, however, neither advised appellant had the right to a jury trial nor expressly alluded that a jury would be the arbiter of his guilt should appellant wish to exercise such a right. In State v. Ralston, 11th Dist. Portage No. 2017-P-0095, 2018-Ohio-4946, accord State v. Antoine, 11th Dist. Portage No. 2018-P-0009, 2019-Ohio-414, this court concluded such an omission renders a guilty plea invalid.
{¶11} In Ralston, this court concluded:
{¶13} Pursuant to Ralston, which tracks and follows the reasoning of the Ohio Supreme Court in Veney, supra, and Ballard, supra, the trial court’s advisement was insufficient and thus appellant’s plea was not entered knowingly, intelligently, and voluntarily.
{¶14} We acknowledge that appellant’s written plea of guilty states: “I understand these rights and it is my intention to waive them: (a) My right to a jury trial.” His written plea additionally provides: “I have either read this Written Plea of Guilty or it has been read to me and I understand it, and that I wish to waive all of the rights set forth herein and voluntarily plead GUILTY to the charges set forth above.” The written plea,
{¶15} The state contends the trial court’s omission merely rendered the trial court’s advisement ambiguous, a position adopted by the dissent, and, as a result, we can consult the foregoing “outside source” to resolve any uncertainty. This court previously addressed, and rejected, this argument in Ralston, supra. To wit:
{¶16} The state characterizes the omission at issue as an ambiguity in the oral plea colloquy which, pursuant to Barker, supra, may be clarified by reference to the written waiver. This construction, however, conflicts with the unequivocal statement of law in Veney, supra; namely, “that the court cannot simply rely on other sources to convey [constitutional] rights to the defendant.” Id. Veney makes it additionally clear that it is the trial court’s obligation to verbally inform the defendant and obtain an actual knowing, intelligent, and voluntary waiver of his or her rights. By clarifying the alleged ambiguity by reference to the written plea agreement, we are relying exclusively on an outside source and therefore presuming waiver. See State v. Young, [supra] (noting “after Veney it is clear that obtaining a signed written waiver is insufficient when the trial court completely omits an explanation of a constitutional right * * *.” Id. at ¶43). Ralston, supra, at ¶8.
{¶17} Given the state’s renewed iteration of its “ambiguity” argument, we shall further elucidate why we refused to extend Barker’s holding to the facts of Ralston, supra, and again refuse in the instant matter. In Barker, supra, the trial judge, during the plea hearing, advised the defendant he would be “giving up [his] right to call witnesses to speak on [his] behalf.” The court of appeals held the plea invalid, concluding this advisement was insufficient to apprise the defendant of the compulsory nature of the right he was waiving. The Supreme Court recognized that the trial court’s advisement was not a rote recitation of the legal terminology set forth in the Constitution. It still pointed out that the use of the word “call,” which means to summon, “in everyday usage clearly conveys the idea that one is required to appear or to
{¶18} The plain language of Ohio’s criminal rules requires an advisement that intelligibly communicates that a defendant, in pleading guilty, is waiving his or her right to a jury trial. We must apply these rules as written.
{¶19} Furthermore, the use of the word “call” in Barker was deemed essentially synonymous with “force” or “compel.” And, as such, in clarifying the defendant’s understanding, the Court did not rely exclusively on the written plea agreement. Here, there was no reference or even a rough allusion by the trial court that appellant would be waiving his right to a jury trial. Had the trial court in this case advised appellant that, by pleading guilty, he was waiving his right “to a trial before a collection of his peers,” for example, it would be analogous to Barker. It did not do so and thus we decline to extend the Barker rule to these facts.
{¶20} A criminal defendant has a right to a trial, but he or she has the additional right to be tried by an impartial jury. “The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees an accused the right to trial by jury.” (Emphasis added.) State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, ¶6, citing Duncan v. Louisiana, 391 U.S. 145 (1968).
{¶21} The right to a trial ensures fundamental due process in a criminal prosecution. A court could hold a trial without a jury and still comport with due process. In Ohio, however, the trial judge is required to advise a defendant that he or she is waiving not simply one’s due process right to a trial, but also his or her additional right to have the case tried to a jury.
{¶22} Finally, we are aware, that federal courts have affirmed guilty pleas in situations similar to the instant matter. While
{¶23} To meet the requirements of due process in Ohio, a trial court is required to orally advise a defendant he or she is waiving the right to a jury trial in a manner reasonably intelligible to that defendant. The trial court failed to do so in this case. Appellant’s plea is therefore invalid.
{¶24} Appellant’s first assignment of error has merit.
{¶25} Appellant’s second assignment of error provides:
{¶26} “Imposition of consecutive sentences upon defendant was contrary to law because the trial court failed to make requisite findings required by
{¶27} Because we hold appellant’s plea is invalid, appellant’s sentence is necessarily negated. Any discussion of this assignment of error would be purely advisory.
{¶28} Appellant’s second assignment of error is overruled as unripe.
{¶29} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is reversed and remanded for further proceedings.
MARY JANE TRAPP, J., concurs,
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶30} The majority reverses Thompson’s guilty pleas on the grounds that the trial court failed to orally advise him that he was “waiving the right to a jury trial in a manner reasonably intelligible to that defendant.” Supra at ¶ 23. Specifically, it was the trial court’s failure to advise Thompson that the right to trial he was waiving was the right to a jury trial which rendered his plea a violation of due process, something less than a knowing, intelligent, and voluntary admission of guilt. On the contrary, there is no more reasonably intelligible association to a criminal defendant than the association of “trial” with “trial by jury” or a “jury trial.” Any confusion that Thompson may have had as to whether he was waiving a jury trial or bench trial in the present case would have been resolved by the written plea agreements he signed, which attest in no uncertain terms: “I have been informed by my Attorney and by the Judge that by pleading guilty I waive the following Constitutional Rights and I understand these rights and it is my intention to waive them: (a) My right to a jury trial * * *.” As Thompson had been reasonably apprised of his right to a jury trial at the time he entered his pleas, his convictions should be affirmed and I respectfully dissent.
{¶31} In order to enter a valid 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). To ensure that the plea is knowing, intelligent, and voluntary, “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
{¶32} In construing the requirements of
{¶33} In considering the validity of guilty pleas where there has not been strict compliance, the Ohio Supreme Court has repeatedly and consistently adopted a practical approach to the issue. See, e.g., Ballard at 480 (“failure to use the exact language of the rule is not fatal to the plea” and “[t]o hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue between the trial court and the accused”); State v. Billups, 57 Ohio St.2d 31, 38-39, 385 N.E.2d 1308 (1979), quoting McCarthy v. United States, 394 U.S. 459, 467, fn. 20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (in determining whether there has been substantial compliance with Crim.R. 11(C)(2), “‘(m)atters of reality, and not mere ritual, should be controlling’”). That practical sensibility has also been the practice of this court. While “it is clear that obtaining a signed written waiver is insufficient when the trial court completely omits an explanation of a constitutional right, it still may be argued that a reviewing court may also consider other factors in the record, such as written materials reviewed by counsel and a defendant when determining whether the oral explanation was ‘reasonably intelligible.’” State v. Young, 11th Dist. Trumbull No. 2009-T-0130, 2011-Ohio-4018, ¶ 43.
{¶34} At the change of plea hearing, the trial court judge advised Thompson:
By entering these pleas of guilty, you’re giving up your right to a trial. At that trial the prosecutor would have to prove beyond a reasonable doubt each and every element of the charges against you. Your attorney could then cross-examine, confront the witnesses who come in to testify for the State of Ohio, you could subpoena or compel witnesses, have them come in and testify for you and you could take the stand at that trial if you choose to do so. You have a constitutional right not to testify, but if you wanted to you could. That along with those rights to trial you are giving up by
entering these pleas of guilty; do you understand?
Thompson answered in the affirmative.
{¶35} Thus the trial court addressed Thompson and informed him that, by pleading guilty, he was waiving his right to trial and the concomitant trial rights to have the prosecutor “prove beyond a reasonable doubt each and every element of the charges,” to “confront the witnesses who come in to testify for the State,” to “subpoena or compel witnesses * * * [to] come in and testify,” and the “constitutional right not to testify.” The court did not however, qualify the right to trial as a right to a jury trial. Any ambiguity as to the nature of the trial right, pursuant to Barker, may be clarified by reference to Thompson’s written plea agreements. The trial court referenced these agreements during the plea colloquy, inquiring of Thompson whether his attorney “went over” the agreements, whether it was Thompson’s signature on the agreements, whether he was satisfied with his attorney, and whether he had “any questions at all” about the rights he was waiving.
{¶36} The majority construes the foregoing as a complete failure to reference the right to a jury trial – “there was no reference or even a rough allusion by the trial court that the appellant would be waiving his right to a jury trial” – so as to preclude consideration of other portions of the record or the totality of the circumstances. Supra at ¶ 19. On the contrary however, the trial court referenced the right to a “trial” in four separate sentences.
{¶37} To advise Thompson of the right to trial necessarily implies a trial by jury just as advising Thompson of the right to a jury is nonsensical unless a trial is understood. The essential right is that of a trial and jury serves to qualify this right. It cannot be credibly maintained that advising Thompson of his right to a “trial” constitutes
{¶38} The Ohio Supreme Court’s decision in Barker illustrates the foregoing and supports the affirmance of Thompson’s guilty pleas. In Barker, the trial judge informed the defendant, “do you understand * * * you’re * * * giving up your right to call witnesses to speak on your behalf,” rather than the right of “compulsory process for obtaining witnesses” as stated in the Criminal Rule. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, at ¶ 4. The court implied the right of process for obtaining witnesses but did not advise the defendant that such process was compulsory. Similarly, in the present case, the trial judge informed Thompson of his right to trial, but not that it would be a trial by jury.
{¶39} The Supreme Court affirmed the plea colloquy in Barker holding that advising the defendant that he could “call” witnesses satisfied both rule and constitution in that the definition of “call” included “to command or request the attendance of” and, in “everyday parlance,” the word “clearly conveys the idea that one is required to appear or to perform.” Id. at ¶ 17-18. Likewise, in the present case, consideration of the word “trial” in everyday parlance clearly conveys the idea of a jury trial – the most common type of trial in the experience of most Americans. Just as the Supreme Court in Barker made reference to common dictionaries to demonstrate how a defendant might
{¶40} Even more compelling in Barker, the Supreme Court considered an alternative justification for affirming the defendant’s plea, i.e., the signed plea form stated: “I understand by entering this plea I give up my right to a jury trial or a court trial, * * * where I could use the power of the court to call witnesses to testify for me.” Barker at ¶ 5. The court of appeals held, relying on Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, that “the plea agreement was another [outside the plea colloquy] source and therefore could not be employed to satisfy the constitutional mandate in
{¶41} The Court distinguished Veney factually because in that case “the trial court had completely ‘failed to orally inform’ the defendant of the right in question.” Id. at ¶ 23. Thus, Veney is “limited to the situation where a trial court omits any discussion of a constitutional right in the oral colloquy.” Id. at ¶ 25. In Barker, as in the present case, the trial judge engaged in a full plea colloquy and addressed all the constitutional rights required by the Criminal Rule. The issue in Barker, as in the present case, is whether a particular right was adequately addressed, not that all mention of the right was absent from the colloquy. “Thus, when a trial court addresses all the constitutional rights in the oral colloquy, a reviewing court should be permitted to consider additional record evidence to reconcile any alleged ambiguity in it.” Id. at ¶ 24.
{¶43} The majority acknowledges that “federal courts have affirmed guilty pleas in situations similar to the instant matter” and that the federal rule/Boykin “does not necessarily require an oral advisement [of the right to a trial by jury].”2 Supra at ¶ 22. The majority then concludes that “Ohio procedurally augments a trial court’s obligation” and “affords a criminal defendant * * * with greater information than the Federal rule demands vis-à-vis entering a guilty plea.” Id. No authority is cited for the proposition that Ohio procedurally augments the standards for waiving a defendant’s Boykin rights and, considering the authority cited above, the proposition is doubtful. In Barker, the Ohio Supreme Court did not mention any procedural augmentation peculiar to Ohio, but affirmed that its holding with respect to consideration of additional record evidence to determine the validity of a plea “comports with federal law, which does not require
{¶44} “The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards.” Boykin, 395 U.S. at 243. Given the foregoing, federal precedent on this issue merits consideration.
{¶45} The plea colloquy in this case was inadequate, and the association of “jury” with “trial” does not cure the inadequacy. What it does do, under the authority of Barker, is allow this court to rely upon the written plea agreements to cure the inadequacy. In all other respects, the trial court in the present case fully complied with all the mandates of Criminal Rule 11. Rather than concede that there has not been a complete failure to advise Thompson of his trial rights, the majority would reverse the pleas for the omission of a single word during the plea colloquy.
{¶46} Accordingly, I respectfully dissent and would affirm the decision of the trial court.