State v. McCann

698 N.E.2d 470, 120 Ohio App. 3d 505

Opinions

Painter, Presiding Judge.

Defendant-appellant Bradley McCann was indicted for aggravated robbery with a gun specification. McCann moved to suppress identification evidence, and the trial court held a hearing on this issue. During the first day of this hearing, it became apparent that McCann had turned down a plea-bargain arrangement that the trial court felt was “very generous.” At the end of the day, the trial court continued the hearing in progress to the following morning. Upon returning the next morning, McCann had a change of heart and pleaded guilty to robbery with an agreed indefinite sentence of three to fifteen years’ imprisonment. The trial court conducted an inquiry into whether McCann knowingly, intelligently, and voluntarily waived his constitutional rights. • During this colloquy, the trial judge addressed each right as required by Crim.R. 11(C), except one — McCann’s right to trial by jury, which went unmentioned and unexplored. The trial court accepted McCann’s plea.

Before the sentencing date, McCann moved to withdraw his guilty plea on the basis that he had been unduly coerced by the trial judge into accepting the plea. After a brief hearing, the court overruled this motion. The case was transferred for sentence to another judge, and McCann renewed his motion, which was again overruled. That trial judge then imposed an indefinite sentence of three to fifteen years.

McCann has appealed and argues that the trial court erred by (1) accepting his guilty plea despite failing to inform him of his right to jury trial under Crim.R. 11(C), (2) overruling his first motion to withdraw his plea, and (3) overruling his second motion to withdraw his plea.

It is mandatory in Ohio that each and every right under Crim.R. 11(C) be explained in a manner reasonably intelligible to a defendant entering a guilty plea. The seminal case on this issue, State v. Ballard (1981), 66 Ohio St.2d 473, 20 O.O.3d 397, 423 N.E.2d 115, states in its syllabus:

“1. Prior to accepting a guilty plea from a criminal defendant, the trial court must inform the defendant that he is waiving his privilege against compulsory self-incrimination, his right to jury trial, his right to confront his accusers, and his right of compulsory process of witnesses. (Boykin v. Alabama [1969], 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274], followed.)

“2. Failure to use the exact language contained in Crim.R. 11(C), in informing a criminal defendant of his constitutional right to a trial and the constitutional rights related to such trial, including the right to trial by jury, is not grounds for vacating a plea as long as the record shows that the trial court explained these rights in a manner reasonably intelligible to that defendant. (State v. Caudill [1976], 48 Ohio St.2d 342 [2 O.O.3d 467, 358 N.E.2d 601], modified.)” (Emphasis added.)

Crim.R. 11(C)(2) states that the judge shall not accept a plea “without addressing the defendant personally and: * * * (c) [ijnforming him of and determining that he understands that by his plea he is waiving his right to jury trial.” (Emphasis added.) Is not mentioning something informing someone of it?

Here, even the dissent admits that the record shows that the trial court failed even to mention the right to jury trial. How the dissent can convert a failure to mention a right as important as the right to jury trial into a “reasonably intelligible explanation” is beyond reckoning. The right to jury trial is so important that it is specifically named in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and it is the only right mentioned specifically in both syllabus paragraphs of Ballard. The dissent would have us hold that if the judge explains most of the Crim.R. 11(C) rights, we can assume that the defendant understands the rest. The dissent quotes a line in Ballard about “formalistic litany,” not once, but twice. But even that line is quoted out of context. In context, the Ballard court stated:

“Therefore, we hold that a rote recitation ofCrim.R. 11(C) is not required, and failure to use the exact language of the rule is not fatal to the plea. Rather, the focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant. To hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue between the trial court and the accused.” (Emphasis added.) 66 Ohio St.2d at 480, 20 O.O.3d at 401-02, 423 N.E.2d at 120.

The dialogue between the trial court and the accused did not contain any explanation of or reference to a trial by jury. We do not require a rote recitation. We find Ballard clear in its syllabus and its text that the trial court must at a minimum explain or refer to the right to trial by jury in a manner reasonably intelligible to the defendant before accepting a guilty plea.

The case at bar closely parallels State v. Sturm (1981), 66 Ohio St.2d 483, 20 O.O.3d 403, 422 N.E.2d 853, in which the trial court advised the accused of all of his Boykin rights, with one exception — the right to confront one’s accusers. The Ohio Supreme Court held in Sturm that this failure to inform the accused of even one right renders the plea defective.

State v. DeArmond (1995), 108 Ohio App.3d 239, 670 N.E.2d 531, should be overruled, or at least limited to its facts, which are distinguishable from the facts in this case. In DeArmond, the defendant at least signed a piece of paper stating the rights he was waiving, including the right to jury trial. In this case, the record is devoid of any showing that McCann was in any way informed of his right to trial by jury — not even the scrap of paper that could be used to bring this case within the DeArmond decision. The mandate of Boykin, Ballard, and Crim.R. 11(C) is that we will not presume that a right that goes unmentioned by the trial court was knowingly, intelligently, and voluntarily waived.

We note that the absence of a written jury waiver would require reversal even if the trial judge had complied with Crim.R. 11. Crim.R. 23(A); R.C. 2945.05. In State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766, the Ohio Supreme Court held that “the waiver must be in writing, signed by the defendant, filed in the criminal action, and made part of the record thereof.” Id., paragraph one of the syllabus. See, also, State v. Fish (1995), 104 Ohio App.3d 236, 661 N.E.2d 788. Accordingly, we sustain McCann’s first assignment of error.

Because we hold that the record fails to demonstrate that McCann entered his guilty plea knowingly, intelligently, and voluntarily, we hold that McCann’s second and third assignments of error are moot. Under App.R. 12(A)(1)(c), we will not address those assignments.

From our ruling on the first assignment of error, we vacate the plea of guilty and remand the cause for further proceedings in accordance with law and this decision.

Judgment reversed and cause remanded.

Marianna Brown Bettman, J., concurs separately. Gorman, J., dissents.