State v. Hawk

380 N.E.2d 736, 55 Ohio App. 2d 231, 9 Ohio Op. 3d 378, 1977 Ohio App. LEXIS 7071

• Court: Ohio Court of Appeals
• Decided: November 3, 1977
• Docket: No. 77AP-168
• Status: Published

Opinions

Whiteside, J.

This is a delayed appeal by defendant from a judgment and sentence of the Franklin County Court of Common Pleas following defendant’s plea of guilty to the lesser included offense of murder, this court having previously granted a motion for leave to appeal. Defendant was originally indicted upon charges of aggravated murder with specifications, attempted murder, and aggravated burglary, with a nolle prosequi being entered upon the other charges upon defendant’s plea of guilty to the lesser offense of murder.

In support of his appeal, defendant raises three assignments of error, as follows:

“I. The trial court erred as a matter of law and to the prejudice of defendant/appellant by failing to advise the maximum consequences of and the rights waived by the plea of guilty to the offense of murder, such being required by Rule 11(C)(2), Ohio Rules of Criminal Procedure and concepts of due process of law, Amendments V, XIV, United States Constitution.

“II. The trial court erred as a matter of■ law and to the prejudice of defendant/appellant by failing to ascertain in any manner that he possessed criminal intent which is an essential element of the offense pleaded to and as is required by Rule 11(C)(2), Ohio Rules of Criminal Procedure and concepts of due process of law, Amendments V, XIV, United States Constitution.

“III. The prosecution, in event of invalidation of a plea of guilty to a lesser included offense and/or a plea attended by dismissal of other charges at the state’s behest, may neither revive the previously dismissed charges nor reinstitute prosecution of the greater offense; such is a clear transgression of the due process and double jeopardy mandates, Amendments V, XIV, United States Constitution.”

By the first two assignments of error, defendant contends that the trial court failed to comply with Crim. R. 11(C) in accepting the guilty plea.

The entire dialogue between the trial court and defendant in attempted compliance with Crim. R. 11 is set forth at pages 3 and 4 of the transcript of proceedings, as follows:

“The Court: All right. Please rise, Mr. Hawk. What is your present age?

“The defendant: 56, sir.

“The Court: How much schooling have you completed?

“The Defendant: Eleventh grade.

“The Court: Now, the Court has before it an entry of guilty plea to the stipulated lesser included offense of murder, as included in Count 1 of the indictment, which bears a penalty of an indefinite term of 15 years to life in imprisonment, and a fine of not more than $15,000, a non-próbationary offense. That is signed by Vaughn Hawk.

“For the record, is this your signature?

“'The Defendant: It is, sir.

“The Court: And, have you discussed this fully with your attorneys, Mr. Scott and Mr. Tyack?

“The Defendant: I have.

“The Court: Do you realize that by a plea of this nature you both waive your right to a Jury trial, a right to confront witnesses against you, the right to compel witnesses to appear in your behalf, and the requirements of the State to prove you guilty beyond a reasonable doubt?

“The Defendant: Yes, sir.

“The Court: Do you further realize that you are pleading guilty to an offense which, as I have previously indicated is non-probationary, carries an indefinite sentence of 15 years to life imprisonment, and a fine of not more than $15,000? Are you fully aware of that?

“The Defendant: Yes, sir.

“The Court: Do you also realize that if the Court accepts this plea you place yourself at the mercy of this Court, and that the Court may proceed with judgment and sentence against you?

“The Defendant: Yes, sir.

“The Court: Now, I will inquire for the record, are you guilty of the lesser included offense of murder as contained in Count 1 of the indictment?

“(Conference at Counsel table.)

“The Defendant: Yes, sir.

“The Court: Did you get that on the record?

“The Reporter: Yes, sir.

“The Court: Very well, you may be seated.”

Crim. R. 11(C) (2) provides, as follows:

“In felony cases the court may refuse to accept a plea of guilty or a plea of no contest and shall not accept such plea without first addressing the defendant personally and:

“(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.

“(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed: with judgment and sentence.”

From the dialogue between defendant and the trial court quoted in full above, it is quite apparent that the trial court did not make inquiries to determine whether defendant entered his plea of guilty to the lesser included offense of murder “with understanding of the nature of the charge” and that the trial court did not make inquiry as to whether defendant understood that the state was required to prove Ms guilt at a trial “at wMch he cannot be compelled to testify against himself.” In State v. Caudill (1976), 48 Ohio St. 2d 342, the Ohio Supreme Court expessly held in the syllabus:

“1. In accepting a written plea of no contest to a felony charge, the trial court must adhere scrupulously to the provisions of Crim. R. 11(C) (2).

“2. Adherence to the provisions of Crim. R. 13(C) (2) required an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant’s understanding of the consequences of Ms plea of guilty or no contest.

“3. The requirements of Crim. R. 11(C)(2) are not satisfied by a written statement by the defendant or by representations of his counsel.”

More recently, the Supreme Court in State v. Stewart (1977), 51 Ohio St. 2d 86, modified the first, but not the second and third, paragraphs of the syllabus of Caudill, stating in the syllabus of Stewart:

“Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R. C. 2903.02) without personally advising the defendant that he is ineligible for probation, such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim. B. 11. (Paragraph one of the syllabus in State v. Caudill, 48 Ohio St. 2d 342, modified.)”

The only modification made in the syllabus of Caudill by Steivart was that the failure of the trial court to advise the defendant that he is ineligible for probation does not constitute prejudicial error where there is otherwise compliance with Crim. E. 11. With respect to the omissions of compliance with Crim. E. 11 herein (defendant’s understanding of the nature of the charge and his understanding of his right not to be be compelled to testify against himself), Caudill remains unmodified by Stewart. It is improper for this court to extend Stewart so as to further modify the syllabus of Caudill. Justice Celebrezze in the decision in Stewart, at 93, noted that “[t]his court finds that the trial court did inform the defendant of his constitutional rights, which were duly waived, and of various consequences of the plea,” and that “* * * the absence of a ritualistic incantation of an admonishment which is not constitutionally guaranteed does not establish grounds for vacating the plea.”

That a guilty plea must be made “with understanding of the nature of the charge” and such constitutes a constitutional due process requirement is established by Henderson v. Morgan (1976), 426 U. S. 637. Not even the written plea form signed by the defendant (which pursuant to the unmodified third paragraph of the syllabus of Caudill cannot be a substitute for compliance with Crim. E. 11), sets forth the nature of the charge to which defendant ■entered a plea of guilty. During the explanation of the plea bargain by counsel, pursuant to Crim. E. 11 (F), the trial court did note that “the present proposed offense of murder is a purposeful killing.” However, this was not directed at defendant, nor was any inquiry made as to his understanding. Nor did the trial court make any express determination that defendant entered his plea with an understanding of the nature of the charge. As stated by Justice Corrigan in State v. Stone (1975), 43 Ohio St. 2d 163, at page 167:

“It should be noted that Crim. E. 11, effective July 1, 1973, and similar to Fed. R. Crim. P. 11, remedies the problems inherent in a subjective judgment by the trial court as to whether a defendant has intelligently and voluntarily waived his constitutional rights and ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is under standingly and voluntarily made.”

■ Unfortunately, in this ease, there is not an adequate record on review because the trial court only partially complied with Crim. R. 11.

Similarly, the right not to be compelled to testify against himself is constitutionally guaranteed by Section 10, Article I, Ohio Constitution, and the Fourteenth Amendment read in conjunction with the Fifth Amendment to the United States Constitution. ... .

Although a cogent argument can be made in support of the-position taken, by the dissenting judges in Caudill, we are still bound by the syllabus of Caudill with respect to failures of the trial court to comply with Crim. R. 11 in advising the defendant and determining his understanding of constitutional rights incident to the entering of a guilty plea, Stewart having modified Caudill only with respect to admonishments which are not constitutionally guaranteed. Any further modification of Caudill must be made by the Supreme Court, not this court. Accordingly, we. feel compelled to sustain the first two assignments of error. ,

The third assignment of error raising a constitutional issue riot properly before the court at this time, seeking in effect a declaratory judgment as to the rights of the defendant, must be overruled.

; However, as noted in our decision rendered herein on May 12, 1977, sustaining the motion for leave to appeal, the reversal of the judgment herein-upon the guilty plea necessarily returns this case to the status that it was prior to the acceptance of the guilty plea, leaving all charges of the indictment pending and undetermined.

Fo.r the foregoing, reasons, the first two assignments of error are sustained, the third assignment of error is overruled, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent, with this decision.

Judgment reversed and cause remanded

McCormac, J., concurs. Reilly, J., dissents.