State v. Bittner

2012 Ohio 1541

• Court: Ohio Court of Appeals
• Decided: April 5, 2012
• Docket: 97133, 97134
• Status: Published

Opinion

[Cite as State v. Bittner, 2012-Ohio-1541.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 97133 and 97134

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CHRISTOPHER A. BITTNER DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-548226

BEFORE: Sweeney, P.J., Jones, J., and Keough, J.

RELEASED AND JOURNALIZED: April 5, 2012 ATTORNEY FOR APPELLANT

John P. Parker, Esq. 988 East 185th Street Cleveland, Ohio 44119

ATTORNEYS FOR APPELLEE

William D. Mason, Esq. Cuyahoga County Prosecutor By: Alison Foy, Esq. Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

JAMES J. SWEENEY, P.J.: {¶1} Defendant-appellant Christopher Bittner (“defendant”) appeals the court’s

accepting his guilty plea based on an alleged failure to strictly comply with Crim.R. 11(C).

After reviewing the facts of the case and pertinent law, we affirm.

{¶2} On May 18, 2011, defendant pled guilty to domestic violence in Cuyahoga

Common Pleas Court Case No. CR-548226. On July 12, 2011, the court sentenced

defendant to 18 months in prison to run consecutively to another prison sentence imposed

in Cuyahoga County Common Pleas Court Case No. CR-538504.

{¶3} Defendant filed appeals in both cases, which this court consolidated.

However, defendant’s assignment of error concerns only Case No. CR-548226.

Therefore, defendant’s appeal associated with Case No. CR-538504 is dismissed for

failure to file a brief and assignments of error. See Loc.App.R. 16; State v. Fox, 154

Ohio St. 238, 95 N.E.2d 225 (1950).

{¶4} Defendant’s sole assignment of error states as follows:

I. The appellant did not give a knowing and intelligent guilty plea when the trial court failed to strictly comply with Crim.R. 11(C) and Due Process was violated under the Fourteenth Amendment of the Federal Constitution.

{¶5} Specifically, defendant argues that the court “failed to obtain a waiver of

the appellant’s right to ‘confront’ the witnesses against him.”

{¶6} The underlying purpose of Crim.R. 11(C) is for the court to give a defendant

enough information to allow him or her to make an intelligent, voluntary, and knowing

decision of whether to plead guilty. See State v. Ballard, 66 Ohio St.2d 473, 613 N.E.2d

591 (1981). Pursuant to Crim.R. 11(C)(2)(c), the court must personally inform the defendant and determine that the defendant understands, among other things, “that by the

plea the defendant is waiving the rights * * * to confront witnesses against him or her * *

*.” Trial courts must strictly comply with Crim.R. 11’s requirements regarding waiver of

constitutional rights. State v. Scruggs, 8th Dist. No. 83863, 2004-Ohio-3732.

{¶7} In the instant case, during the Crim.R. 11 plea hearing, the court asked

defendant if he understood that by pleading guilty he was giving up his right “[t]o have

your lawyer cross examine each and every witness that will be called by the State of

Ohio.”

{¶8} The United States Supreme Court explained that the Sixth Amendment’s

Confrontation Clause “guarantees the right of an accused in a criminal prosecution ‘to be

confronted with the witnesses against him.’ The right of confrontation, which is secured

for defendants in state as well as federal criminal proceedings, Pointer v. Texas, 380 U.S.

400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), ‘means more than being allowed to confront

the witness physically.’ Davis v. Alaska, 415 U.S., at 315, 94 S.Ct., at 1110. Indeed, ‘[t]he

main and essential purpose of confrontation is to secure for the opponent the opportunity

of cross-examination.’ Id., at 315-316, 94 S.Ct., at 1110 * * *.” Delaware v. Van

Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (emphasis in original).

{¶9} Ohio courts have applied this principle to hold that use of the term

“cross-examination” adequately communicated an understanding of the right to

confrontation and amounted to strict compliance with Crim.R. 11. See State v. Madaris,

456 Ohio App.3d 211, 214, 2004-Ohio-653, 808 N.E.2d 150 (1st Dist.) (concluding that “the court’s use of the phrases ‘see the witnesses against you here in open court’ and

‘cross-examined’ * * * effectively conveyed the meanings required by the Criminal

Rule”); State v. Moore, 6th Dist. No. E-03-006, 2004-Ohio-685 (finding strict compliance

with Crim.R. 11 based on the following language: “You understand that if you chose to go

to trial, [the Prosecutor] here would have the right to call his witnesses; [your defense

attorney] could cross-examine those witnesses on your behalf”).

{¶10} Upon review, we find that the court strictly complied with Crim.R. 11

requirements when it informed defendant of his right to cross-examine witnesses against

him and asked if he understood that by pleading guilty he was waiving this right.

{¶11} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

JAMES J. SWEENEY, PRESIDING JUDGE LARRY A. JONES, SR., J., and KATHLEEN ANN KEOUGH, J., CONCUR