State v. Perkins

2018 Ohio 5335

Opinion

[Cite as State v. Perkins, 2018-Ohio-5335.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2018-T-0012 - vs - :

GREG ALAN PERKINS, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR 00646.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

Andrew R. Zellers, Richard G. Zellers & Associates, Inc., 3810 Starrs Centre Drive, Canfield, OH 44406 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Greg Alan Perkins, appeals from the judgment of conviction,

entered by the Trumbull County Court of Common Pleas after his plea of guilty to one

count of trespass in a habitation when a person is present or likely to be present. At

issue is whether the trial court adequately advised appellant of his constitutional rights

prior to accepting his guilty plea and whether the trial court erred in failing to advise him

of his right to appellate counsel after entering sentence. We affirm. {¶2} Appellant was indicted on one count of burglary, a felony of the third

degree, in violation of R.C. 2911.12(A)(3) and (D). Appellant entered a plea of not

guilty. Ultimately, appellant changed his plea and entered a plea of guilty to an

amended indictment, charging him with trespass in a habitation when a person is

present or likely to be present, a felony of the fourth degree, in violation of R.C.

2911.12(B) and (E). The plea included a jointly recommended sentence of 18 months

imprisonment that would run consecutively to a sentence imposed for a probation

violation in a separate case. Appellant waived a presentence investigation report and

proceeded directly to sentencing. The trial court accepted the jointly recommended

sentence and imposed the same. Appellant filed a motion for delayed appeal, which

this court granted. He now assigns the following error for our consideration:

{¶3} “The trial court committed an error when it failed to advise the defendant-

appellant of his right to a jury trial and his right to counsel on appeal, thus violating his

6th, 5th, and 14th Amendment rights under the U.S. Constitution and his rights under

Article 1, Section 10 of the Ohio Constitution.”

{¶4} Appellant argues that his plea is invalid due to the trial court’s failure to

inform him that his guilty plea (1) waives his right to a jury trial and (2) that he is entitled

to counsel on appeal.

{¶5} Pursuant to Crim.R. 11(C)(2), when a defendant is pleading guilty to

felony offenses, the trial court must address the defendant personally and inform the

defendant of various constitutional and non-constitutional rights prior to accepting his

plea. The constitutional rights are set forth under Crim.R. 11(C)(2)(c): the trial court is to

inform the defendant that by pleading guilty or no contest, he or she “is waiving

2 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.”

{¶6} Compliance with Crim.R. 11 “ensures that defendants enter pleas with

knowledge of rights that they would forgo and creates a record by which appellate

courts can determine whether pleas are entered voluntarily.” State v. Griggs, 103 Ohio

St.3d 85, 2004-Ohio-4415, ¶11, citing State v. Nero, 56 Ohio St.3d 106, 107 (1990).

“When a trial judge fails to explain the constitutional rights set forth in Crim.R.

11(C)(2)(c), the guilty or no-contest plea is invalid ‘under a presumption that it was

entered involuntarily and unknowingly.’” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, ¶ 31, quoting Griggs, supra, at ¶12.

{¶7} The Ohio Supreme Court has emphasized that a trial court must strictly

comply with Crim.R. 11(C) as it relates to the waiver of constitutional rights. State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶18, citing State v. Ballard, 66 Ohio St.2d

473, 479 (1981). Failure to literally comply with the language of Crim.R. 11(C)(2)(c)

does not, however, invalidate a plea agreement as long as the record reveals that the

trial court explained or referred to the constitutional rights “‘“in a manner reasonably

intelligible to that defendant.”’” (Emphasis sic.) State v. Barker, 129 Ohio St.3d 472,

2011-Ohio-4130, ¶14, quoting Veney, supra, at ¶27, quoting Ballard, supra, at 480. The

Court in Veney made it clear, however, that a court may not omit the substantive

advisement, relying only upon outside evidence to meet its Crim.R. 11(C)(2)(c) duties:

The Court emphasized:

3 {¶8} [P]ursuant to the strict-compliance standard set forth in Ballard, the trial court must orally inform the defendant of the rights set forth in Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be valid. Although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to convey these rights to the defendant. “We cannot presume a waiver of these * * * important federal rights from a silent record.” Boykin[ v. Alabama, 395 U.S. 238,] 243 [(1969)]. When the record confirms that the trial court failed to perform this duty, the defendant's plea is constitutionally infirm, making it presumptively invalid. See Ballard, [supra,] at 481; State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶12. Veney, supra, at ¶29.

{¶9} With the foregoing standards in mind, we shall address appellant’s initial

argument. Here, the trial court made the following advisements germane to the issue

before us:

{¶10} “The State of Ohio would have to prove the following elements by proof beyond a reasonable doubt to the unanimous satisfaction of a jury; that is, that you did by force, stealth or deception, did recklessly trespass in 196 Champion Township, a permanent or temporary habitation of any person when any person other than the accomplice of the offender is present or likely to be present or likely to be present in Trumbull County, Ohio. Do you understand what the State of Ohio would have to prove regarding this count?” (Emphasis added.)

{¶11} Appellant responded in the affirmative.

{¶12} The court continued: “Nobody has to plead to any charge. You have the

right to go forward with a trial and have the State of Ohio prove its case by proof beyond

a reasonable doubt. Do you understand that?” (Emphasis added.) Again, appellant

indicated he understood.

{¶13} And, after appellant addressed the court, requesting leniency in

sentencing, the court acknowledged his comment and, in light of the joint sentencing

recommendation, the trial court stated: “* * * it’s not going to get any better * * * [un]less

you go to trial and get acquitted.” (Emphasis added.) Appellant responded “Yes, sir.”

4 {¶14} In addition to the foregoing, appellant’s written guilty plea expressly stated

appellant was advised, by the court and defense counsel, of his “right to a jury trial or

trial to the Court.”

{¶15} Other appellate districts, including this court, have addressed situations

similar to the facts in the case sub judice. In State v. Young, 11th Dist. Trumbull No.

2009-T-0130, 2011-Ohio-4018, the trial judge did not specifically use the word “jury”

each time it referenced the defendant’s right to a trial. This court noted, however, that

the defendant was advised, as appellant was in this case, that “[t]he State of Ohio would

have to prove the following elements by proof beyond a reasonable doubt to the

unanimous satisfaction of a jury[.]” The Young court then pointed out that the defendant

signed a written plea agreement which stated that the court advised him, inter alia, of

his constitutional right to a jury trial. The court in Young emphasized that, in light of

Veney, a written waiver, by itself, would be insufficient to meet the dictates of Crim.R.

11(C)(2)(c). Young, supra, at ¶43. Still, the court determined, the written waiver could

be considered when analyzing the knowing, intelligent, and voluntary character of the

plea. Id. at ¶45. In light of the foregoing, the Young court concluded the defendant was

sufficiently advised of his right to a jury trial and his plea was entered knowingly,

intelligently and voluntarily.

{¶16} Moreover, in State v. Smiddy, 2d Dist. Clark No. 2014-CA-148, 2015-

Ohio-4200, the Second Appellate District addressed the same issue. In Smiddy, the trial

court asked the defendant if he 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

5 could be convicted only upon a unanimous verdict of a jury. Id. at ¶6. The appellate

court determined 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. The Smiddy court accordingly found

no Crim.R. 11(C)(2)(c) violation.

{¶17} And, in State v. Hayward, 6th Dist. Wood No. WD-17-010, 2017-Ohio-

8611, a trial court did not specifically advise the defendant of his right to a “jury trial.”

Instead, it directed his attention to page six of the written waiver of rights the defendant

had executed, where the right to a jury trial was explicitly referenced. And, perhaps

more importantly, the trial court explained, during the plea colloquy, that if the defendant

chose not to testify, it would “instruct the jury” that it could not weigh this as a factor in

determining his guilt or innocence. In light of Young, supra, and Smiddy, supra, the

Sixth District determined that “the trial court explained the right to a jury trial in a manner

reasonably intelligible to [the defendant], and therefore, complied with Crim.R

11(C)(2)(c) in accepting [the defendant’s] guilty plea. Hayward, supra, at ¶12.

{¶18} In the instant matter, even though the trial court did not expressly state

appellant had a right to a jury trial, which he was waiving by entering the guilty plea, it

did emphasize that, if the matter were tried, the state would have to prove each element

to the unanimous satisfaction of the jury. And, as in Young, supra, appellant signed a

written plea form stating he was advised by the court and counsel that he was waiving,

among other things, his right to a jury trial. In light of all the circumstances, we conclude

appellant was meaningfully informed of his right to a jury trial and the trial court’s failure

to provide a rote recitation of Crim.R. 11(C)(2)(c) did not invalidate appellant’s guilty

6 plea. We therefore hold appellant knowingly, voluntarily, and intelligently entered a plea

of guilty.

{¶19} Appellant next argues the trial court committed reversible error by failing to

advise him of his right to assistance of counsel on appeal at sentencing. Appellant

pleaded guilty to an amended indictment and a jointly recommended sentence was

imposed. Courts have held that “‘[w]here a defendant has been convicted following a

guilty or no contest plea, the court is not constitutionally required to advise the

defendant of his appeal rights.’” State v. Lowe, 2d Dist. Clark No. 2016-CA-18, 2017-

Ohio-27, ¶9 quoting State v. Houston, 6th Dist. Erie No. E-03-059, 2004-Ohio-6462, ¶8.

And, even if we declined to follow the foregoing authority, appellant filed a motion for

delayed appeal, which was granted. In the judgment granting appellant leave to file the

delayed appeal, this court also appointed counsel. Accordingly, appellant suffered no

prejudice from the trial court’s omission.

{¶20} Appellant’s sole assignment of error lacks merit.

{¶21} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

_______________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶22} I find merit in the assignment of error. As the majority observes, the

7 Supreme Court of Ohio demands strict compliance with regards to the Crim.R. 11(C)

colloquy when constitutional rights – such as that to trial by jury – are being waived. I

respectfully disagree with the reasoning that if an appellate court can imply the Crim.R.

11(C) colloquy was proper, from other portions of the record, that strict compliance has

been had.

{¶23} I respectfully dissent.