State v. Phillips

2020 Ohio 800

• Court: Ohio Court of Appeals
• Decided: March 5, 2020
• Docket: 108423
• Status: Published

Opinion

[Cite as State v. Phillips, 2020-Ohio-800.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 108423 v. :

DIONTE PHILLIPS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 5, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-632326-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Janna R. Steinruck, Assistant Prosecuting Attorney, for appellee.

Buckeye Law Office, and P. Andrew Baker, for appellant.

KATHLEEN ANN KEOUGH, J.:

Appellant, Dionte Phillips, appeals his convictions following a guilty

plea. For the reasons that follow, we affirm.

In 2018, Phillips was named in a three-count indictment charging

him with one count each of aggravated robbery, felonious assault, and abduction. In March 2019, he pleaded guilty to felonious assault; all other counts were

dismissed. The trial court imposed an eight-year sentence.

Phillips now appeals, contending in his sole assignment of error that

he did not enter a knowing, intelligent, and voluntary plea because the trial court

failed to comply with Crim.R. 11 by inadequately advising him that by pleading guilty

he was waiving his right against self-incrimination.

Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony

matter, a trial court must personally address the defendant and (1) determine that

the defendant is making the plea voluntarily, with an understanding of the nature of

the charges and the maximum penalty; (2) inform the defendant of and determine

that the defendant understands the effect of the plea, and that the court may proceed

with judgment after accepting the plea; and (3) inform the defendant and determine

that the defendant understands that he is waiving his constitutional rights to a jury

trial, to confront the witnesses against him, to call witnesses in his favor, and to

require the state to prove his guilt beyond a reasonable doubt at a trial where the

defendant cannot be forced to testify against himself.

A trial court must strictly comply with the mandates of Crim.R.

11(C)(2) regarding the waiver of constitutional rights, meaning the court must

actually inform the defendant of the constitutional rights he is waiving and make

sure the defendant understands them. State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621, ¶ 27. Failure to fully advise a defendant of his Crim.R.

11(C)(2) rights renders a plea invalid. Id. at ¶ 29. In this case, the trial court made the following advisement to Phillips

regarding his right not to testify:

[Y]ou waive the right not to be compelled to be a witness against yourself, and that’s also called your Fifth Amendment right to remain silent and not testify at trial. Do you understand that right?

(Tr. 27-28.) Phillips responded that he understood.

Despite this advisement, Phillips contends on appeal that the

advisement was inadequate because the trial court did not advise him that the state

would not be permitted to comment on his silence if he chose not to testify.

Phillips acknowledges that this court considered and rejected this

argument recently in State v. McElroy, 8th Dist. Cuyahoga No. 104639, 2017-Ohio-

1049, but urges this court to reconsider its decision. In McElroy, this court held that

“when a defendant is instructed that he has the right to not testify at trial, it follows

that he has a right to remain silent at trial and cannot be compelled to testify against

himself.” Id at ¶ 27-28. McElroy is a reaffirmance of this court’s prior decision

holding the same. See State v. Jones, 8th Dist. Cuyahoga No. 104189, 2016-Ohio-

5712, ¶ 10-12 (concluding that the trial court properly advised the defendant that he

did not have to testify against himself and rejecting the argument that his plea

should be vacated because the trial court failed to advise him that the state could not

comment on his right to remain silent and that the jury would be advised that any

failure to testify may not be used against him); State v. Wangul, 8th Dist. Cuyahoga

No. 84698, 2005-Ohio-1175, ¶ 12 (finding no authority requiring a court to inform a

defendant at a plea hearing that his failure to testify could not be used against him); see also State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, 879 N.E.2d 829, ¶

39 (7th Dist.) (Crim.R. 11 “contains no requirement that one must be advised that

the decision not to testify cannot be used against him or commented on”). Based on

the foregoing, we find no reason to reconsider McElroy because it is consistent with

this court’s prior decisions and decisions from other districts.

Although the trial court did not use the exact language set forth in

Crim.R. 11(C), the Ohio Supreme Court, as well as this court, has held that strict

compliance does not require the court to use the exact language of Crim.R.

11(C)(2)(c), and the court’s failure to do so is not fatal to a defendant knowingly and

voluntarily entering a plea of guilty. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

897 N.E.2d 621, at ¶ 28-29; State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115

(1981), paragraph two of the syllabus; State v. Burston, 8th Dist. Cuyahoga No.

93645, 2010-Ohio-5120, ¶ 6. The proper inquiry is “whether the record shows that

the trial court explained or referred to the right in a manner reasonably intelligible

to that defendant.” Ballard at 480.

In this case, the record demonstrates that the court explained the

right not to testify in a manner reasonably intelligible to Phillips. He affirmatively

stated he understood the right he was waiving, and there was no demonstration of

confusion during the Crim.R. 11 colloquy. Phillips’s assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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. The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

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

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, A.J., and LARRY A. JONES, SR., J., CONCUR