[Cite as State v. Sherman, 2011-Ohio-1810.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95716
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
CORNELL SHERMAN
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-432637
BEFORE: Jones, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 14, 2011 FOR APPELLANT
Cornell Sherman, Pro se Inmate #452-521 RI.C.I. P.O. Box 8107 Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: T. Allan Regas Assistant Prosecuting Attorney The Justice Center, 8 Floor ht
1200 Ontario Street Cleveland, Ohio 44113
LARRY A. JONES, P.J.:
{¶ 1} This cause came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of
counsel.
{¶ 2} Defendant-appellant, Cornell Sherman, appeals from the trial court’s judgment
denying his motion to vacate his guilty plea. We affirm. I. Procedural History
{¶ 3} In 2003, Sherman was indicted on charges of aggravated murder, murder,
aggravated burglary, felonious assault, and kidnapping. That same year, Sherman pleaded
guilty to amended Count 3, involuntary manslaughter, and Count 4, aggravated burglary. The
remaining charges were nolled. The trial court sentenced Sherman to an agreed sentence of
20 years. Sherman appealed his sentence, but it was upheld on appeal. State v. Sherman,
Cuyahoga App. No. 84301, 2004-Ohio-6636.
{¶ 4} In 2007, Sherman filed a motion to withdraw his guilty plea. The trial court
denied the motion. No appeal was taken. In 2010, Sherman filed another motion to
withdraw his guilty plea, which was again denied. Sherman now appeals from the judgment
denying his second motion to withdraw his guilty plea and assigns the following errors for our
review:
“[I.] The trial court prejudiced defendant/appellant when it failed to inform him of his constitutionally guaranteed right against self-incrimination.
“[II.] The trial court prejudiced defendant when it failed to inform defendant he had a right to face his accusers.
“[III.] The trial court prejudiced defendant when it failed to inform him of his constitutional right to compulsory process to present his own evidence at trial or a bench trial.”
II. Law and Analysis {¶ 5} Sherman’s claims are barred by the doctrine of res judicata. Under that
doctrine, claims that were raised or could have been raised on direct appeal are precluded from
later being raised. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶
6. This court has held that the doctrine of res judicata bars all claims raised in a Crim.R. 32.1
motion for withdrawal of guilty plea that were raised or could have been raised in a prior
proceeding, including a direct appeal. See, e.g., State v. Fountain, Cuyahoga App. Nos. 92772
and 92874, 2010-Ohio-1202, ¶ 9; State v. McGee, Cuyahoga App. No. 91638,
2009-Ohio-3374, ¶9; State v. Pickens, Cuyahoga App. No. 91924, 2009-Ohio-1791, ¶5. A
petition for postconviction relief may defeat the res judicata bar only if its claims are based
upon evidence outside the record. State v. Cole (1982), 2 Ohio St.3d 112, 113-114, 443
N.E.2d 169.
{¶ 6} Sherman’s second motion to withdraw his guilty plea was based on the following
allegations that the trial court failed to: (1) execute a written jury waiver prior to accepting his
plea; (2) properly inform him of the right to compulsory process; (3) properly inform him of his
right against self-incrimination; and (4) properly inform him of his right to face his accusers.
All of these grounds upon which Sherman sought vacation of his plea were based upon
information in the record at the time of the direct appeal — there was no need to supplement
the record with outside information, and in fact, Sherman did not. Thus, his claims were
barred by res judicata. {¶ 7} Notwithstanding the above, review of the record demonstrates that the trial court
complied with Crim.R. 11 in accepting Sherman’s plea. In order for a plea to be given
knowingly and voluntarily, the trial court must follow the mandates of Crim.R. 11(C). If a
defendant’s guilty plea is not voluntary and knowing, it has been obtained in violation of due
process and is void. Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23
L.Ed.2d 274.
{¶ 8} Sherman’s allegations of the trial court’s noncompliance with Crim.R. 11 related
to constitutional requirements. A trial court must strictly comply with Crim.R. 11 as it
pertains to the waiver of federal constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, syllabus. These include (1) the right to a jury trial; (2) the
right to confront one’s accusers; (3) the right to compulsory process to obtain witnesses; (4) the
right to require the state to prove guilt beyond a reasonable doubt; and (5) the privilege against
compulsory self-incrimination. Id.
{¶ 9} The trial court strictly complied in advising Sherman of his constitutional rights,
and Sherman indicated that he understood. We are not persuaded by Sherman’s argument 1
that the trial court did not strictly comply with Crim.R. 11 because in advising him of his right
against self-incrimination it did not advise him that he had the “right not to be forced to testify
against himself.”
1 Sherman did not file the transcript of the plea proceedings as part of the record on appeal, {¶ 10} Crim.R. 11(C)(2)(c) provides that before accepting a plea, a trial court must
inform a defendant that he has a right to a “trial at which the defendant cannot be compelled to
testify against himself or herself.” The trial court advised Sherman of his right against
self-incrimination as follows: “if we went to trial you’d have the right to remain silent and not
testify and no one could comment on the fact that you did not testify.”
{¶ 11} Although a trial court must strictly comply with the mandates of Crim.R. 11 with
respect to constitutional rights, that does not mean that the rule’s exact language must be
followed. State v. Freed, Cuyahoga App. No. 90720, 2008-Ohio-5742, ¶37. The Ohio
Supreme Court has recognized that literal compliance with the wording of Crim.R. 11(C)(2) is
not required and that the focus upon review is whether the record shows the trial court
explained the right “in a manner reasonably intelligible to that defendant.” State v. Ballard
(1981), 66 Ohio St.2d 473, 480, 423 N.E.2d 115.
{¶ 12} The “right to remain silent” has been described as a “term of art synonymous
with the Fifth Amendment privilege against self-incrimination.” State v. Henderson,
Montgomery App. No. 21425, 2006-Ohio-6306, ¶7. The trial court’s advisement here was
done so “in a manner reasonably intelligible” to Sherman and amounted to strict compliance. 2
Ballard at id.
ostensibly because the transcript was an exhibit to Sherman’s second motion to withdraw his plea.
See State v. Flynn, Cuyahoga App. No. 93588, 2010-Ohio-3191; State v. Ortiz, Cuyahoga 2
App. No. 91626, 2009-Ohio-2877; State v.
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[Cite as State v. Sherman, 2011-Ohio-1810.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95716
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
CORNELL SHERMAN
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-432637
BEFORE: Jones, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: April 14, 2011 FOR APPELLANT
Cornell Sherman, Pro se Inmate #452-521 RI.C.I. P.O. Box 8107 Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: T. Allan Regas Assistant Prosecuting Attorney The Justice Center, 8 Floor ht
1200 Ontario Street Cleveland, Ohio 44113
LARRY A. JONES, P.J.:
{¶ 1} This cause came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of
counsel.
{¶ 2} Defendant-appellant, Cornell Sherman, appeals from the trial court’s judgment
denying his motion to vacate his guilty plea. We affirm. I. Procedural History
{¶ 3} In 2003, Sherman was indicted on charges of aggravated murder, murder,
aggravated burglary, felonious assault, and kidnapping. That same year, Sherman pleaded
guilty to amended Count 3, involuntary manslaughter, and Count 4, aggravated burglary. The
remaining charges were nolled. The trial court sentenced Sherman to an agreed sentence of
20 years. Sherman appealed his sentence, but it was upheld on appeal. State v. Sherman,
Cuyahoga App. No. 84301, 2004-Ohio-6636.
{¶ 4} In 2007, Sherman filed a motion to withdraw his guilty plea. The trial court
denied the motion. No appeal was taken. In 2010, Sherman filed another motion to
withdraw his guilty plea, which was again denied. Sherman now appeals from the judgment
denying his second motion to withdraw his guilty plea and assigns the following errors for our
review:
“[I.] The trial court prejudiced defendant/appellant when it failed to inform him of his constitutionally guaranteed right against self-incrimination.
“[II.] The trial court prejudiced defendant when it failed to inform defendant he had a right to face his accusers.
“[III.] The trial court prejudiced defendant when it failed to inform him of his constitutional right to compulsory process to present his own evidence at trial or a bench trial.”
II. Law and Analysis {¶ 5} Sherman’s claims are barred by the doctrine of res judicata. Under that
doctrine, claims that were raised or could have been raised on direct appeal are precluded from
later being raised. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶
6. This court has held that the doctrine of res judicata bars all claims raised in a Crim.R. 32.1
motion for withdrawal of guilty plea that were raised or could have been raised in a prior
proceeding, including a direct appeal. See, e.g., State v. Fountain, Cuyahoga App. Nos. 92772
and 92874, 2010-Ohio-1202, ¶ 9; State v. McGee, Cuyahoga App. No. 91638,
2009-Ohio-3374, ¶9; State v. Pickens, Cuyahoga App. No. 91924, 2009-Ohio-1791, ¶5. A
petition for postconviction relief may defeat the res judicata bar only if its claims are based
upon evidence outside the record. State v. Cole (1982), 2 Ohio St.3d 112, 113-114, 443
N.E.2d 169.
{¶ 6} Sherman’s second motion to withdraw his guilty plea was based on the following
allegations that the trial court failed to: (1) execute a written jury waiver prior to accepting his
plea; (2) properly inform him of the right to compulsory process; (3) properly inform him of his
right against self-incrimination; and (4) properly inform him of his right to face his accusers.
All of these grounds upon which Sherman sought vacation of his plea were based upon
information in the record at the time of the direct appeal — there was no need to supplement
the record with outside information, and in fact, Sherman did not. Thus, his claims were
barred by res judicata. {¶ 7} Notwithstanding the above, review of the record demonstrates that the trial court
complied with Crim.R. 11 in accepting Sherman’s plea. In order for a plea to be given
knowingly and voluntarily, the trial court must follow the mandates of Crim.R. 11(C). If a
defendant’s guilty plea is not voluntary and knowing, it has been obtained in violation of due
process and is void. Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23
L.Ed.2d 274.
{¶ 8} Sherman’s allegations of the trial court’s noncompliance with Crim.R. 11 related
to constitutional requirements. A trial court must strictly comply with Crim.R. 11 as it
pertains to the waiver of federal constitutional rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, syllabus. These include (1) the right to a jury trial; (2) the
right to confront one’s accusers; (3) the right to compulsory process to obtain witnesses; (4) the
right to require the state to prove guilt beyond a reasonable doubt; and (5) the privilege against
compulsory self-incrimination. Id.
{¶ 9} The trial court strictly complied in advising Sherman of his constitutional rights,
and Sherman indicated that he understood. We are not persuaded by Sherman’s argument 1
that the trial court did not strictly comply with Crim.R. 11 because in advising him of his right
against self-incrimination it did not advise him that he had the “right not to be forced to testify
against himself.”
1 Sherman did not file the transcript of the plea proceedings as part of the record on appeal, {¶ 10} Crim.R. 11(C)(2)(c) provides that before accepting a plea, a trial court must
inform a defendant that he has a right to a “trial at which the defendant cannot be compelled to
testify against himself or herself.” The trial court advised Sherman of his right against
self-incrimination as follows: “if we went to trial you’d have the right to remain silent and not
testify and no one could comment on the fact that you did not testify.”
{¶ 11} Although a trial court must strictly comply with the mandates of Crim.R. 11 with
respect to constitutional rights, that does not mean that the rule’s exact language must be
followed. State v. Freed, Cuyahoga App. No. 90720, 2008-Ohio-5742, ¶37. The Ohio
Supreme Court has recognized that literal compliance with the wording of Crim.R. 11(C)(2) is
not required and that the focus upon review is whether the record shows the trial court
explained the right “in a manner reasonably intelligible to that defendant.” State v. Ballard
(1981), 66 Ohio St.2d 473, 480, 423 N.E.2d 115.
{¶ 12} The “right to remain silent” has been described as a “term of art synonymous
with the Fifth Amendment privilege against self-incrimination.” State v. Henderson,
Montgomery App. No. 21425, 2006-Ohio-6306, ¶7. The trial court’s advisement here was
done so “in a manner reasonably intelligible” to Sherman and amounted to strict compliance. 2
Ballard at id.
ostensibly because the transcript was an exhibit to Sherman’s second motion to withdraw his plea.
See State v. Flynn, Cuyahoga App. No. 93588, 2010-Ohio-3191; State v. Ortiz, Cuyahoga 2
App. No. 91626, 2009-Ohio-2877; State v. Bassett, Cuyahoga App. No. 90887, 2008-Ohio-5597, ¶20; {¶ 13} In regard to Sherman’s contention that his plea should have been vacated
because he did not execute a jury waiver form prior to the court accepting his plea, “[i]t is well
established that the entry of a plea of guilty by an accused constitutes a waiver of a jury trial.”
McAuley v. Maxwell (1963), 174 Ohio St. 567, 568, 190 N.E.2d 922. Therefore, because a
guilty plea obviates the necessity of a trial, there is no need for a defendant to execute a jury
waiver form prior to entering a plea.
{¶ 14} In light of the above, Sherman’s three assignments of error are overruled and the
trial court’s judgment is affirmed.
It is ordered that appellee recover of 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS; COLLEEN CONWAY COONEY, J., CONCURS IN JUDGMENT ONLY
State v. Ip, Cuyahoga App. No. 86243, 2006-Ohio-2303.