[Cite as State v. Hayward, 2017-Ohio-8611.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-010
Appellee Trial Court No. 2015CR262
v.
Walter L. Hayward, Jr. DECISION AND JUDGMENT
Appellant Decided: November 17, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Stephen D. Long, for appellant.
MAYLE, J.
{¶ 1} Defendant-appellant, Walter L. Hayward, Jr., appeals the April 25, 2016
judgment of the Wood County Court of Common Pleas. For the reasons that follow, we
affirm the trial court judgment. [Cite as State v. Hayward, 2017-Ohio-8611.]
I. Background
{¶ 2} On January 14, 2016, Walter L. Hayward, Jr. entered a plea of guilty to one
count of engaging in a pattern of corrupt activity, a violation of R.C. 2923.31(A)(1)(B)(1),
a second-degree felony; two counts of grand theft, violations of R.C. 2913.02(A)(1)(B)(2),
fourth-degree felonies; and 15 counts of theft, violations of R.C. 2913.02(A)(1)(B)(2),
fifth-degree felonies. The trial court imposed an aggregate prison term of eight years, and
ordered restitution in the amount of $87,359.99 to the various victims, all automotive
dealerships. Hayward appealed the trial court judgment and assigns the following error
for our review:
THE TRIAL COURT ABUSED ITS DISCRETION BY
ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT
ENSURING THAT THE PLEA WAS KNOWINGLY, INTELLIGENTLY
AND VOLUNTARILY ENTERED AND DID NOT STRICTLY
COMPLY WITH CRIM.R. 11(C)(2)(c).
II. Law and Analysis
{¶ 3} In his sole assignment of error, Hayward claims that his guilty plea was not
entered knowingly, intelligently, and voluntarily because the trial court failed to strictly
comply with Crim.R. 11(C)(2)(c) before accepting his plea. Specifically, Hayward
contends that the trial court failed to inform him that by entering his plea, he was waiving
his right to a jury trial. {¶ 4} Crim.R. 11(C)(2)(c) 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 a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following: * * * Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require the
state to prove the defendant’s guilt beyond a reasonable doubt at a trial at
which the defendant cannot be compelled to testify against himself or
herself.
{¶ 5} In other words, before accepting a plea of guilty, Crim.R. 11(C)(2)(c)
requires the trial court to advise the defendant of the constitutional rights he is waiving by
entering his plea, which includes the right to a jury trial, the right to confront one’s
accusers, the privilege against compulsory self-incrimination, the right to compulsory
process to obtain witnesses, and the right to require the state to prove guilt beyond a
reasonable doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,
¶ 19.
{¶ 6} The Ohio Supreme Court has made clear that strict compliance with Crim.R.
11(C)(2)(c) is required. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953
N.E.2d 826, ¶ 15, citing Veney at ¶ 18. To that end, the preferred method of informing a
3. criminal defendant of his constitutional rights is to use the language contained in Crim.R.
11(C)(2)(c). Veney at ¶ 18. The failure to recite the language of the rule word-for-word
will not invalidate a plea agreement, however, so long as “the record demonstrates that
the trial court explained the constitutional right[s] in a manner reasonably intelligible to
that defendant.” (Internal quotations and emphasis omitted.) Veney at ¶ 27, quoting
State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981); Barker at ¶ 15.
{¶ 7} Here, Hayward executed a written plea agreement enumerating the rights he
was waiving by entering his plea. In it, he acknowledged: “I understand that I have a
right to have my case tried to a jury of my peers, or to this Court, sitting without a jury.”
The trial court also engaged in the following colloquy with Hayward before accepting his
plea:
The Court: Alright. Now, on the bottom of Page 6 and the top of
Page 7, there is a paragraph dealing with your constitutional rights and I
want to make sure that you understand the rights that you are giving up by
entering this plea today, alright?
The Defendant: Yes, sir.
The Court: Do you understand that you are presumed innocent of all
these charges. That presumption stays with you until the prosecutor proves
your guilt beyond a reasonable doubt, understood?
The Defendant: Yes, Your Honor.
4. The Court: Do you understand that you have the right to a speedy
and public trial?
The Court: You have a right to an attorney at every stage of the
proceedings?
The Court: Now, had there been a trial, Mr. Hayward, you would be
able to be present right where you are at that table. You would be able to
see and hear any witnesses that testified against you in the trial. You would
be able to talk to Ms. Driftmyer about what those witnesses said and she
would be able to cross-examine them, you understand that?
The Court: If you had witnesses you wanted to come to the trial and
testify on your behalf, the Court stands ready to assist you with that by
issuing subpoenas to your witnesses.
The Court: Those subpoenas would tell them when the trial was and
that they had to appear and testify, understood?
5. The Court: You would also have the right to testify yourself if you
chose to do so. If you wanted to testify, nobody could stop you from doing
that, understood?
The Court: On the other hand, you also have the right not to testify.
If you chose not to testify, then I would instruct the jury that they could not
weigh that in deciding your guilt or innocence of these charges,
understood?
***
(Emphasis added.)
{¶ 8} Hayward contends that because the trial court orally advised him only that
he had a right “to a speedy and public trial”—and did not orally advise him of his right to
a jury trial—it failed to strictly comply with Crim.R. 11(C)(2)(c). He insists, therefore,
that his plea was not entered knowingly, intelligently, and voluntarily, and must be
vacated.
{¶ 9} A number of Ohio courts have considered whether a trial court violates
Crim.R. 11(C)(2)(c) when it fails to specifically inform the defendant that he has the right
to a trial by jury. In Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115, the trial court
advised defendant of his right to a “fair and impartial trial,” but failed to specify that he
had the right to a jury trial. Later in its colloquy, while explaining the right against
6. compulsory self-incrimination, the court informed the defendant that “neither judge nor
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[Cite as State v. Hayward, 2017-Ohio-8611.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-010
Appellee Trial Court No. 2015CR262
v.
Walter L. Hayward, Jr. DECISION AND JUDGMENT
Appellant Decided: November 17, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.
Stephen D. Long, for appellant.
MAYLE, J.
{¶ 1} Defendant-appellant, Walter L. Hayward, Jr., appeals the April 25, 2016
judgment of the Wood County Court of Common Pleas. For the reasons that follow, we
affirm the trial court judgment. [Cite as State v. Hayward, 2017-Ohio-8611.]
I. Background
{¶ 2} On January 14, 2016, Walter L. Hayward, Jr. entered a plea of guilty to one
count of engaging in a pattern of corrupt activity, a violation of R.C. 2923.31(A)(1)(B)(1),
a second-degree felony; two counts of grand theft, violations of R.C. 2913.02(A)(1)(B)(2),
fourth-degree felonies; and 15 counts of theft, violations of R.C. 2913.02(A)(1)(B)(2),
fifth-degree felonies. The trial court imposed an aggregate prison term of eight years, and
ordered restitution in the amount of $87,359.99 to the various victims, all automotive
dealerships. Hayward appealed the trial court judgment and assigns the following error
for our review:
THE TRIAL COURT ABUSED ITS DISCRETION BY
ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT
ENSURING THAT THE PLEA WAS KNOWINGLY, INTELLIGENTLY
AND VOLUNTARILY ENTERED AND DID NOT STRICTLY
COMPLY WITH CRIM.R. 11(C)(2)(c).
II. Law and Analysis
{¶ 3} In his sole assignment of error, Hayward claims that his guilty plea was not
entered knowingly, intelligently, and voluntarily because the trial court failed to strictly
comply with Crim.R. 11(C)(2)(c) before accepting his plea. Specifically, Hayward
contends that the trial court failed to inform him that by entering his plea, he was waiving
his right to a jury trial. {¶ 4} Crim.R. 11(C)(2)(c) 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 a plea of guilty or no contest
without first addressing the defendant personally and doing all of the
following: * * * Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require the
state to prove the defendant’s guilt beyond a reasonable doubt at a trial at
which the defendant cannot be compelled to testify against himself or
herself.
{¶ 5} In other words, before accepting a plea of guilty, Crim.R. 11(C)(2)(c)
requires the trial court to advise the defendant of the constitutional rights he is waiving by
entering his plea, which includes the right to a jury trial, the right to confront one’s
accusers, the privilege against compulsory self-incrimination, the right to compulsory
process to obtain witnesses, and the right to require the state to prove guilt beyond a
reasonable doubt. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621,
¶ 19.
{¶ 6} The Ohio Supreme Court has made clear that strict compliance with Crim.R.
11(C)(2)(c) is required. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953
N.E.2d 826, ¶ 15, citing Veney at ¶ 18. To that end, the preferred method of informing a
3. criminal defendant of his constitutional rights is to use the language contained in Crim.R.
11(C)(2)(c). Veney at ¶ 18. The failure to recite the language of the rule word-for-word
will not invalidate a plea agreement, however, so long as “the record demonstrates that
the trial court explained the constitutional right[s] in a manner reasonably intelligible to
that defendant.” (Internal quotations and emphasis omitted.) Veney at ¶ 27, quoting
State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981); Barker at ¶ 15.
{¶ 7} Here, Hayward executed a written plea agreement enumerating the rights he
was waiving by entering his plea. In it, he acknowledged: “I understand that I have a
right to have my case tried to a jury of my peers, or to this Court, sitting without a jury.”
The trial court also engaged in the following colloquy with Hayward before accepting his
plea:
The Court: Alright. Now, on the bottom of Page 6 and the top of
Page 7, there is a paragraph dealing with your constitutional rights and I
want to make sure that you understand the rights that you are giving up by
entering this plea today, alright?
The Defendant: Yes, sir.
The Court: Do you understand that you are presumed innocent of all
these charges. That presumption stays with you until the prosecutor proves
your guilt beyond a reasonable doubt, understood?
The Defendant: Yes, Your Honor.
4. The Court: Do you understand that you have the right to a speedy
and public trial?
The Court: You have a right to an attorney at every stage of the
proceedings?
The Court: Now, had there been a trial, Mr. Hayward, you would be
able to be present right where you are at that table. You would be able to
see and hear any witnesses that testified against you in the trial. You would
be able to talk to Ms. Driftmyer about what those witnesses said and she
would be able to cross-examine them, you understand that?
The Court: If you had witnesses you wanted to come to the trial and
testify on your behalf, the Court stands ready to assist you with that by
issuing subpoenas to your witnesses.
The Court: Those subpoenas would tell them when the trial was and
that they had to appear and testify, understood?
5. The Court: You would also have the right to testify yourself if you
chose to do so. If you wanted to testify, nobody could stop you from doing
that, understood?
The Court: On the other hand, you also have the right not to testify.
If you chose not to testify, then I would instruct the jury that they could not
weigh that in deciding your guilt or innocence of these charges,
understood?
***
(Emphasis added.)
{¶ 8} Hayward contends that because the trial court orally advised him only that
he had a right “to a speedy and public trial”—and did not orally advise him of his right to
a jury trial—it failed to strictly comply with Crim.R. 11(C)(2)(c). He insists, therefore,
that his plea was not entered knowingly, intelligently, and voluntarily, and must be
vacated.
{¶ 9} A number of Ohio courts have considered whether a trial court violates
Crim.R. 11(C)(2)(c) when it fails to specifically inform the defendant that he has the right
to a trial by jury. In Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115, the trial court
advised defendant of his right to a “fair and impartial trial,” but failed to specify that he
had the right to a jury trial. Later in its colloquy, while explaining the right against
6. compulsory self-incrimination, the court informed the defendant that “neither judge nor
jury” could draw any inference if he refused to testify. Id. at 480-481. The Ohio
Supreme Court held that “a rote recitation of Crim. R. 11(C) is not required, and failure
to use the exact language of the rule is not fatal to the plea.” Id. at 480. Rather, the court
explained, the focus on review “is whether the record shows that the trial court explained
or referred to the right in a manner reasonably intelligible to that defendant.” Applying
this standard, the court held that the trial court satisfied its obligation to inform the
appellant of his right to a trial by jury. Id. at 482.
{¶ 10} The Eleventh District in State v. Young, 11th Dist. Trumbull No. 2009-T-
0130, 2011-Ohio-4018, reached the same conclusion under similar circumstances. There
the trial court advised the defendant of his right to a trial, but failed to specifically
mention the right to a trial by jury. The appellate court found no Crim.R. 11(C)(2)(c)
violation because (1) elsewhere in the trial court’s colloquy, it recited the elements of
each offense and advised defendant that the “state would have to ‘prove [those] elements
by proof beyond a reasonable doubt to the unanimous satisfaction of a jury;’” and (2) the
right to a jury trial was explained in the written plea form executed by the defendant. Id.
at ¶ 27, 39, 40, 55. It held that the defendant’s plea was knowingly, intelligently, and
voluntarily made. Id. at ¶ 57.
{¶ 11} And the Second District addressed this issue in State v. Smiddy, 2d Dist.
Clark No. 2014-CA-148, 2015-Ohio-4200. There the trial court asked the defendant if he
7. understood that he had “the right to a trial”—without reference to the right to a trial by
jury. It later stated that the state would have the burden to prove beyond a reasonable
doubt each element of the offenses and that he could be convicted only upon a unanimous
verdict of a jury. Id. at ¶ 6. The appellate court concluded that the trial court adequately
explained the right to a trial by jury given the later reference to the role of the jury and
the specific reference to the right to a jury trial in the written plea agreement. Id. at ¶ 6,
15. It found no Crim.R. 11(C)(2)(c) violation.
{¶ 12} Here, while the trial court did not specifically advise Hayward of his right
to a jury trial, it brought his attention to page six of the written waiver of rights that he
executed, where the right to a jury trial was explicitly referenced. Moreover, the trial
court explained during the plea colloquy that if Hayward chose not to testify, it would
“instruct the jury” that it could not weigh this as a factor in determining Hayward’s guilt
or innocence. We find that the trial court explained the right to a jury trial in a manner
reasonably intelligible to Hayward, and therefore, complied with Crim.R 11(C)(2)(c) in
accepting Hayward’s guilty plea.
{¶ 13} We find Hayward’s sole assignment of error not well-taken.
III. Conclusion
{¶ 14} The trial court complied with Crim.R. 11(C)(2)(c) in accepting Hayward’s
guilty plea despite the fact that it did not recite the language of the rule word-for-word in
explaining the right to a jury trial. We, therefore, find Hayward’s sole assignment of
8. error not well-taken and affirm the April 25, 2016 judgment of the Wood County Court
of Common Pleas. The costs of this appeal are assessed to Hayward under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE James D. Jensen, P.J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE
9.