State v. Cox

2014 Ohio 388

• Court: Ohio Court of Appeals
• Decided: February 6, 2014
• Docket: 99847
• Status: Published

Opinion

[Cite as State v. Cox, 2014-Ohio-388.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99847

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

RASHAWN COX DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-566788

BEFORE: S. Gallagher, J., Jones, P.J., and Keough, J.

RELEASED AND JOURNALIZED: February 6, 2014 ATTORNEY FOR APPELLANT

Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Kristen L. Sobieski T. Allan Regas Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Defendant Rashawn Cox appeals his conviction entered after a guilty plea.

For the following reasons, we vacate Cox’s guilty plea, and reverse and remand for

further proceedings.

{¶2} Cox pleaded guilty to several drug trafficking and attendant charges. During

the plea colloquy, the trial court inadvertently omitted the notification of Cox’s right to

compel witnesses to testify at trial. The trial court informed Cox of his right to confront

and cross-examine witnesses and to call witnesses to testify in his favor, but omitted any

reference that could be taken to inform the defendant of his right to compel a witness’s

attendance to testify. In his single assignment of error, Cox contends that his plea was

not knowingly, intelligently, or voluntarily entered because the trial court failed to strictly

comply with the constitutional requirement of informing him of his right to compel a

witness to testify before accepting the guilty plea. The state concedes this error.

{¶3} “When a defendant enters a 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). The standard of review for determining whether a plea was

knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for constitutional

issues is strict compliance. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977).

Further, although a trial court need not specifically tell a defendant that he has the right to

compulsory process, the court must otherwise notify the defendant that he has the power to force, compel, subpoena, or otherwise cause a witness to appear and testify. State v.

Cummings, 8th Dist. Cuyahoga No. 83759, 2004-Ohio-4470, ¶ 6, citing State v. Wilson,

8th Dist. Cuyahoga No. 82770, 2004-Ohio-499, ¶ 16.

{¶4} Our review of the record confirms the trial court omitted the compulsory

process notification from the change of plea colloquy. Because the trial court failed to

strictly comply with this constitutional requirement, we must vacate Cox’s guilty plea and

remand this case for further proceedings, even though the trial court otherwise explained

the defendant’s right to have witnesses appear on his behalf. State v. Smith, 8th Dist.

Cuyahoga No. 92320, 2009-Ohio-5692, ¶ 35 (a trial court’s notification of the

defendant’s right to have witnesses testify on his behalf does not satisfy the compulsory

process notification); compare State v. Parks, 8th Dist. Cuyahoga No. 86312,

2006-Ohio-1352, ¶ 16-17 (the trial court’s notification of the defendant’s right to

subpoena and call witnesses satisfied the requirement to notify the defendant of his right

to compulsory process). Accordingly, we vacate Cox’s plea and remand the case for

further proceedings. Cox’s sole assignment of error is sustained.

{¶5} Reversed and remanded.

This cause is reversed and remanded to the lower court for further proceedings

consistent with this opinion.

It is ordered that appellant recover from appellee 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.

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

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

LARRY A. JONES, SR., P.J., and KATHLEEN ANN KEOUGH, J., CONCUR