State v. TruittState v. Truitt
Rendered on May 12, 2011
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
Yeura R. Venters, Public Defender, and John W. Keeling, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Defendant-appellant, Ladell D. Truitt (“appellant“), appeals from a judgment of the Franklin County Court of Common Pleas, in which the court accepted his guilty plea and sentenced him for nonsupport of dependents, in violation of
{¶2} On March 11, 2010, pursuant to
{¶3} On August 20, 2010, appellant filed a timely notice of appeal, setting forth the following two assignments of error for our consideration:
[1.] THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY WITH
CRIM.R. 11 BY INFORMING THE DEFENDANT THAT HE WAS WAIVING HIS RIGHT TO A JURY TRIAL AND TO A TRIAL AT WHICH THE DEFENDANT COULD NOT BE COMPELLED TO TESTIFY AGAINST HIMSELF.[2.] THE TRIAL COURT ERRED WHEN IT ORDERED RESTITUTION FOR THE DEFENDANT‘S ENTIRE SUPPORT ARREARAGE INSTEAD OF THE AMOUNT THAT ACCRUED DURING THE TIME PERIOD COVERED IN THE INDICTMENT AND IN THE CHARGE THAT THE DEFENDANT WAS CONVICTED ON.
{¶4} In his first assignment of error, appellant contends that, upon accepting his guilty plea, the trial court did not strictly comply with
{¶5} “Before accepting a guilty or no-contest plea, the court must make the determinations and give the warnings required by
{¶6}
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:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights [1] to jury trial, [2] to confront witnesses against him or her, [3] to have compulsory process for obtaining witnesses in the defendant‘s favor, and [4] to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which [5] the defendant cannot be compelled to testify against himself or herself.
{¶7} Because appellant‘s first assignment of error only challenges the trial court‘s compliance with
{¶8} In Veney, the Supreme Court of Ohio reaffirmed that “a court must strictly comply with
{¶9} The Supreme Court of Ohio, in discussing “strict compliance,” referenced the noteworthy case of State v. Ballard (1981), 66 Ohio St.2d 473, “which marked the first time that [the Court] explicitly made the connection between the strict-compliance standard and the constitutional rights in
{¶10} Therefore, “the trial court must orally inform the defendant of the rights set forth in
{¶11} First, we will discuss appellant‘s assertion that the trial court failed to inform him that, in pleading guilty, he was waiving his right to a jury trial. Appellant contends that the trial court “informed [appellant] that he was waiving the rights that he would have at a jury trial but did not inform him that he was waving [sic] his right to a jury trial.” (See Appellant‘s Brief at 3.) We are not persuaded by appellant‘s argument.
{¶12} The record reveals that, prior to accepting appellant‘s plea of guilty, the trial court inquired regarding appellant‘s age and level of education, stating:
THE COURT: And how old are you?
[APPELLANT]: Thirty-seven.
[APPELLANT]: Ten - - tenth grade.
THE COURT: From that may I assume that you can read and write and understand the English language?
[APPELLANT]: Yes, sir.
(June 17, 2010, Tr. 2.) Further, after ascertaining whether appellant had knowingly, intelligently, and voluntarily signed the “Entry of Guilty Plea,” pursuant to the requirements set forth in
THE COURT: When you sign a document such as this, I‘m required by law to advise you that you waive all the rights that you would have at a jury trial. They are:
The right to remain silent.
The right to require the prosecutor to prove your guilt beyond a reasonable doubt.
The right to issue subpoenas for your witnesses, if you have any, and have this Court enforce them for you.
You would have the right to confront and cross-examine your accusers.
And finally, you would have the right to appeal if the jury found against you.
Do you understand all of those rights and voluntarily give them up in order to enter this plea of guilty?
[Appellant]: Yes, sir.
(Tr. 3-4.) (Emphasis added.) Finally, the trial court asked:
THE COURT: Do you have any questions about any of this that you‘d like to ask either me or your attorney?
[APPELLANT]: No, sir.
THE COURT: Pardon?
THE COURT: All right. I‘ll accept your plea. You may be seated.
(Tr. 4.)
{¶13} In Ballard, the Supreme Court of Ohio faced a similar fact pattern wherein the appellant argued that the trial court failed to inform him that, by pleading guilty, “he was waiving his right to a trial by jury.” Id. at 474. In its oral colloquy, the trial court “informed the appellant that neither judge nor jury could draw any inference if the appellant refused to testify,” and immediately thereafter stated that “[the appellant] was entitled to a fair and impartial trial under law.” Id. at 481. (Emphasis added.) In holding that the trial court‘s colloquy strictly complied with
{¶14} Here, we also find that the trial court strictly complied with
{¶15} Second, we will discuss appellant‘s assertion that the trial court failed to inform him that, in pleading guilty, he was waiving his Fifth Amendment privilege against compulsory self-incrimination. Appellant contends that “the trial court merely explained to [appellant] that he was giving up the right to remain silent and did not adequately explain to [appellant] that he could not be compelled by the state to testify on his own behalf.” (See Appellant‘s Brief at 3.) (Emphasis added.) Again, we are not persuaded by appellant‘s argument.
{¶16} Because this court has not yet ruled on this exact issue, we look to other appellate courts for direction. The Eighth District Court of Appeals in State v. Sherman, 8th Dist. No. 95716, 2011-Ohio-1810; State v. Flynn, 8th Dist. No. 93588, 2010-Ohio-3191; and State v. Butcher (Oct. 17, 1985), 8th Dist. No. 49642; and the Second District Court of Appeals in State v. Moorefield (Oct. 8, 1999), 2d Dist. No. 98-CR-26, offer sound guidance in resolving the issue presently before this court.
{¶17} In Sherman, the appellant argued that he was prejudiced because the trial court “failed to inform him of his constitutionally guaranteed right against self-incrimination.” Id. at ¶4. The trial court, in its colloquy, advised the appellant that “if we went to trial you‘d have the right to remain silent and not testify and no one could comment on the fact that you did not testify.” Id. at ¶10. (Emphasis added.) In affirming
{¶18} In Flynn, the appellant stated he did not knowingly, voluntarily, and intelligently enter his guilty plea “because of the trial court‘s failure to advise [him] that, should he decide not to testify at trial, no one could comment on [his] failure to testify.” Id. at ¶1. The trial court, in its colloquy, advised the appellant that he was “giving up his right to remain silent.” Id. at ¶7. (Emphasis added.) The court, in affirming the appellant‘s conviction, held “[b]y telling [Flynn] he was waiving his right to remain silent, the court complied with
{¶19} In Butcher, the appellant contended that “he was not advised of his absolute right not to testify,” because, in its colloquy, the trial court stated “you have the right to remain silent if you so desire or you have the right to take the witness stand and testify if you wish to do that.” Id. (Emphasis added.) The Eighth District Court of Appeals affirmed the judgment of the trial court, stating “[t]he plain meaning of the words used by the court is that the defendant had the right to choose to testify or not to testify.” Id.
{¶20} In Moorefield, the appellant asserted that the trial court “failed to inform him of his * * * right against self-incrimination in the manner that [
{¶21} Here, similar to the above-cited cases, the trial court advised appellant of his “right to remain silent.” (Tr. 4.) The plain meaning of the trial court‘s words suggest that appellant had the right to say absolutely nothing at trial, if he so desired. Intuitively, if a person remains silent at trial, they opt to engage the privilege against self-incrimination and do not testify against themselves. In addition, as previously stated, the trial court inquired whether appellant had any questions regarding the colloquy, and appellant answered “no, sir.” (Tr. 4.) Therefore, pursuant to Ballard, we find that the trial court explained waiver of the privilege against self-incrimination in a reasonably intelligible manner and in strict compliance with
{¶22} Appellant‘s first assignment of error is overruled.
{¶23} In his second assignment of error, appellant contends that, pursuant to
{¶24} In the present matter, the judgment entry holds that “[d]efendant shall pay restitution in the amount of $33,232.24 to Franklin County Child Support Enforcement Agency.”
{¶25} In State v. Turns, 10th Dist. No. 10AP-740, 2011-Ohio-1497, ¶34, this court held that ”
{¶26} Appellant‘s second assignment of error is sustained.
{¶27} For the foregoing reasons, appellant‘s first assignment of error is overruled, and his second assignment of error is sustained. We affirm in part and reverse in part the judgment of the Franklin County Court of Common Pleas, and we remand this matter to that court to impose restitution in an amount not to exceed the amount of support owed for the 104-week period set forth in the indictment.
Judgment affirmed in part, reversed in part, and cause remanded with instructions.
BROWN and SADLER, JJ., concur.
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