[Cite as State v. Bibler, 2014-Ohio-3375.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLANT, CASE NO. 9-13-70
v.
BRANDON LEE BIBLER, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court Trial Court No. 13 CR 0488
Judgment Reversed and Cause Remanded
Date of Decision: August 4, 2014
APPEARANCES:
Denise M. Martin for Appellant
Ted I. Coulter for Appellee Case No. 9-13-70
PRESTON, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the judgment of the
Marion County Court of Common Pleas allowing defendant-appellee, Brandon
Lee Bibler (“Bibler”), to enter a plea of guilty to one element of the offense of
domestic violence and granting Bibler’s motion in limine for the purpose of
excluding evidence of that element. For the reasons that follow, we reverse.
{¶2} On September 25, 2013, Bibler was indicted for domestic violence in
violation of R.C. 2919.25(A), a felony of the fourth degree based on the
indictment containing the charge that Bibler had a prior conviction for domestic
violence. (Doc. No. 3); R.C. 2919.25(D)(3). On November 15, 2013, the trial
court held a plea hearing as to the single element of a prior conviction for
domestic violence. (Nov. 15, 2013 Tr. at 2). Bibler pled guilty to the
prior-conviction element. (Id. at 23-24); (Nov. 26, 2013 JE, Doc. No. 40). After
the trial court accepted Bibler’s plea, Bibler made an oral motion in limine to
preclude the State from presenting any evidence at trial regarding Bibler’s prior
conviction for domestic violence. (Nov. 15, 2013 Tr. at 24-25). On November 27,
2013, the trial court granted Bibler’s motion in limine. (Nov. 27, 2013 JE, Doc.
No. 41). The trial court concluded:
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Further, it will not be necessary for the State to prove at trial the
existence of a prior conviction element, since [Bibler] has pleaded
guilty to this element.
Since the prior conviction is not material for any other purpose,
and its admission into evidence would be unfairly prejudicial to
[Bibler], the State will not be permitted to introduce into evidence or
present information to the jury regarding the existence of the prior
domestic violence conviction which is reflected in Court’s Exhibit 11
which was the result of [Bibler’s prior conviction].
(Id. at 9).
{¶3} On December 4, 2013, the State filed a motion for leave to appeal the
November 27, 2013 judgment entry, incorporating and applying the November 26,
2013 judgment entry. On January 24, 2014, this court granted the State’s motion
for leave to appeal the trial court’s judgment allowing Bibler to enter a plea of
guilty, and the judgment granting Bibler’s motion in limine. The State raises one
assignment of error.
Assignment of Error
The existence of a prior domestic violence conviction is an essential element of R.C.§2919.25(A); consequently, the trial court erred as a matter of law when it allowed defendant-appellant to enter a plea of guilty to the single element 1 The record reflects that Court’s Exhibit 1 is a certified copy of the judgment entry containing Bibler’s prior conviction. (See Nov. 15, 2013 Tr. at 13-14).
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of the prior conviction for domestic violence and subsequently ordered that the state would be precluded from producing evidence of the same at trial.
{¶4} In its assignment of error, the State argues that the trial court erred as a
matter of law when it permitted Bibler to plead guilty to a single element of the
offense of domestic violence, and, subsequently, precluded the State from
presenting evidence of Bibler’s prior domestic-violence conviction at trial.
{¶5} The acceptance of pleas and the determination of whether or not to
admit evidence are matters within the trial court’s discretion. See State v. Bowers,
3d Dist. Union No. 14-11-12, 2012-Ohio-1585, ¶ 17 (“Crim.R. 11 vests discretion
in the trial court in determining whether to accept a plea.”); State v. Sage, 31 Ohio
St.3d 173 (1987), paragraph two of the syllabus (“The admission or exclusion of
relevant evidence rests within the sound discretion of the trial court.”). We
generally review these matters for an abuse of discretion. See Bowers at ¶ 17;
State v. Johnson, 3d Dist. Marion No. 9-10-47, 2011-Ohio-994, ¶ 59 (“An
appellate court will not disturb evidentiary rulings absent an abuse of discretion
that produces a material prejudice to the aggrieved party.”), citing State v. Roberts,
156 Ohio App.3d 352, 2004-Ohio-962, ¶ 14 (9th Dist.).
{¶6} However, the State argues that this matter raises a question of law and
should be reviewed de novo. The de novo standard is appropriate “‘where a trial
court’s order is based on an erroneous standard or misconstruction of the law * *
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*.’” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, ¶ 16, quoting
Castlebrook, Ltd. v. Dayton Properties, Ltd., 78 Ohio App.3d 340, 346 (2d
Dist.1992). See also State v. Parker, 3d Dist. Putnam No. 12-08-08,
2009-Ohio-1835, ¶ 11 (“[S]tatutory interpretation is a question of law reviewed de
novo.”), citing State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4168, ¶ 8. “‘In
determining a pure question of law, an appellate court may properly substitute its
judgment for that of the trial court, since an important function of appellate courts
is to resolve disputed propositions of law.’” Morris at ¶ 16, quoting Castlebrook
at 346.
{¶7} Because this appeal raises a question of law, we will review the trial
court’s judgment de novo. Accordingly, we will address whether the trial court
erred as a matter of law when it permitted Bibler to plead guilty to the
prior-conviction element of the offense of domestic violence. The State argues
that the Revised Code, the Rules of Criminal Procedure, and relevant case law do
not permit Bibler to enter a guilty plea to only the prior-conviction element of the
offense of domestic violence. The State further argues that the resulting effect of
any such plea – essentially a bifurcated proceeding – is impermissible.
{¶8} R.C. 2919.25(A) sets forth the offense of domestic violence and
provides: “No person shall knowingly cause or attempt to cause physical harm to
a family or household member.” A violation of R.C. 2919.25(A) is generally a
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first-degree misdemeanor; however, if the defendant “previously has pleaded
guilty to or been convicted of domestic violence,” it is a felony of the fourth
degree. See R.C. 2919.25(D)(2) and (D)(3). Because a prior domestic-violence
conviction raises the degree of a subsequent offense, a prior conviction is an
essential element of the offense. State v. Allen, 29 Ohio St.3d 53, 54 (1987) (an
element elevates the degree of the offense; an enhancement provision increases
only the penalty). “And no matter how the state chooses to prove this element, it
must be proven beyond a reasonable doubt before the level of the offense may be
increased.” State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-5046, ¶ 11, citing State
v. Henderson, 58 Ohio St.2d 171, 173 (1979).
{¶9} The trial court permitted Bibler to plead guilty to the prior-conviction
element alone. In other words, the trial court permitted Bibler to plead guilty to
fewer than all of the elements of the offense for which the grand jury indicted him.
It is an issue of first impression in this court whether a defendant may enter a
partial plea of guilty by pleading guilty to a single element of a crime—that is,
fewer than all of the elements of an offense charged by a grand jury. Therefore,
we must examine the authorities governing the entry of pleas and determine
whether Ohio law permits a partial plea of guilty.
{¶10} R.C. Chapters 2943 and 2937 and Crim.R. 11 govern the entry of
guilty pleas. R.C. Chapter 2943 directly governs the entry of Bibler’s guilty plea
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because he entered it after being indicted. R.C. Chapter 2943 describes plea
procedure after an indictment. R.C. 2943.03 allows for “[p]leas to an indictment *
* *.”2 (Emphasis added.) There are five types of pleas to an indictment allowed
by R.C. 2943.03, including “guilty.” See R.C. 2943.03(A). Further, the statute
states, “The court may, for good cause shown, allow a change of plea at any time
before the commencement of the trial.” R.C. 2943.03.
{¶11} To decide the scope of R.C. 2943.03, this court begins with its text,
“‘reading words and phrases in context and construing them according to the rules
of grammar and common usage.’” State v. Buehler, 113 Ohio St.3d 114, 2007-
Ohio-1246, ¶ 29, quoting State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355,
2004-Ohio-4960, ¶ 21. “Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be
construed accordingly.” State v. Manoccio, 138 Ohio St.3d 292, 2014-Ohio-785, ¶
17, quoting R.C. 1.42. “We must accord significance and effect to every word,
phrase, sentence, and part of the statute [and] we may not restrict, constrict,
qualify, narrow, enlarge, or abridge the General Assembly’s wording.” State ex
rel. Carna v. Teays Valley Local School Dist. Bd. Of Edn., 131 Ohio St.3d 478,
2012-Ohio-1484, ¶ 18, citing Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390,
2004-Ohio-6549, ¶ 13 and State ex rel. Cassels v. Dayton City School Dist. Bd. of
2 R.C. 2943.03 describes pleas to an indictment or an information. See R.C. 2943.03. The same principles regarding guilty pleas apply to an information that apply to an indictment. Because an information is not presented by the facts of this case, it is not directly addressed in our analysis.
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Edn., 69 Ohio St.3d 217, 220 (1994). If a statute’s language is plain and
unambiguous, this court will apply it as written. State v. Hairston, 101 Ohio St.3d
308, 2004-Ohio-969, ¶ 13.
{¶12} A “guilty plea” is “[a]n accused person’s formal admission in court
of having committed the charged3 offense.” (Emphasis added.) Black’s Law
Dictionary 1337 (10th Ed.2014). An “offense” is “[a] violation of the law; a
crime, often a minor one.”4 Id. at 1250. Likewise, the United States Supreme
Court has stated that a “guilty plea is an admission of all the elements of a formal
criminal charge * * *.” McCarthy v. United States, 394 U.S. 459, 466 (1969).
“The terms ‘crime,’ ‘offense,’ and ‘criminal offense’ are all said to be
synonymous, and ordinarily used interchangeably.” 22 Corpus Juris Secundum,
Criminal Law, Section 3 (1989), citing Ex parte Brady, 116 Ohio St. 512, 517
(1927). An “indictment” is defined as, “The formal written accusation of a crime,
made by a grand jury and presented to a court for prosecution against the accused
person.” (Emphasis added.) Black’s at 891.
{¶13} R.C. 2943.03 is not ambiguous. R.C. 2943.03 permits guilty pleas to
an indictment. A “guilty plea” is the formal admission of having committed the
charged offense, and an “indictment” is the formal, written accusation of a crime.
3 Black’s Law Dictionary defines a “charge” as “[a] formal accusation of an offense as a preliminary step to prosecution.” (Emphasis added.) Black’s Law Dictionary 282 (10th Ed.2014). 4 Black’s Law Dictionary defines “elements of a crime” as “[t]he constituent parts of a crime – usu[ally] consisting of the actus reus, mens rea, and causation – the prosecution must prove to sustain a conviction.” Black’s Law Dictionary 597 (10th Ed.2014).
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“When the General Assembly has written a clear and complete statute, this court
will not use additional tools to produce an alternative meaning.” State v. Pelfrey,
112 Ohio St.3d 422, 2007-Ohio-256, ¶ 12. The plain meaning of “guilty plea” and
“indictment” encompasses all of the elements of an offense. Therefore, pursuant
to R.C. 2943.03, a guilty plea cannot be made to fewer than all of the elements of
the crime charged in the indictment.
{¶14} R.C. 2943.03 is not in conflict with the Rules of Criminal Procedure,
which also contemplate guilty pleas to an offense—that is, not fewer than all of the
elements of an offense. See Boyer v. Boyer, 46 Ohio St.2d 83, 86 (1976) (where
conflicts arise between the rules and the statutory law, the rule controls over the
statute on matters of procedure, and the statute controls over the rule on matters of
substantive law), citing Ohio Constitution, Article IV, Section 5(B). Crim.R.
11(A) states that “[a] defendant may plead not guilty, not guilty by reason of
insanity, guilty or, with the consent of the court, no contest. * * *.” Furthermore,
Crim.R. 11(B) states:
“With reference to the offense or offenses to which the plea is
entered:
(1) The plea of guilty is a complete admission of the defendant’s
guilt.
***
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(3) When a plea of guilty or no contest is accepted pursuant to this
rule, the court, except as provided in divisions (C)(3)5 and (4)6 of
this rule, shall proceed with sentencing under Crim.R.32.
(Emphasis added.)
{¶15} Bibler argues that because the Rules of Criminal Procedure do not
specifically state that a defendant can or cannot plead to an individual element, he
should be permitted to do so. The trial court adopted Bibler’s argument. In
reaching that conclusion, Bibler and the trial court merely cited Crim.R. 11(A) and
concluded that, because Crim.R. 11(A) does not specifically prohibit pleading
guilty to a single element of a multi-element offense, the rule should be liberally
construed in accordance with Crim.R. 1(B)7 and R.C. 2901.04(B)8 to permit Bibler
to enter such a plea. Bibler and the trial court failed to read Crim.R. 11 in its
entirety, or read the governing section of the Revised Code, R.C. 2943.03, to
ascertain what a “guilty plea” is under the Rules of Criminal Procedure and the
Revised Code. Similar to R.C. 2943.03, Crim.R. 11 states, with reference to the
offense pled to, a guilty plea is a complete admission of guilt. Crim.R. 11 further
indicates that, once a guilty plea is accepted, the court shall proceed to sentencing.
5 Crim.R. 11(C)(3) pertains to pleas to aggravated murder charges. 6 “With respect to all other cases the court need not take testimony upon a plea of guilty or no contest.” Crim.R. 11(C)(4). 7 “These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable expense and delay.” Crim.R. 1(B). 8 “Rules of criminal procedure and sections of the Revised Code providing for criminal procedure shall be construed so as to effect the fair, impartial, speedy, and sure administration of justice.” R.C. 2901.04(B).
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The trial court cannot sentence a defendant upon the acceptance of a guilty plea to
fewer than all of the elements of the offense. Thus, Crim.R. 11 does not permit a
guilty plea to fewer than all of the elements of an offense and is not in conflict
with R.C. 2943.03.
{¶16} Although not controlling in this case, R.C. Chapters 2901 and 2937
provide further insight that a guilty plea cannot be made to fewer than all of the
elements of a crime charged in an indictment.
{¶17} In the context of abrogating common law offenses, R.C. 2901.03
explains that only conduct defined in the Revised Code is an offense against the
State. R.C. 2901.03(A). R.C. 2901.03(B) defines “offense” as “when one or more
sections of the Revised Code state a positive prohibition or enjoin a specific duty,
and provide a penalty for violation of such prohibition or failure to meet such
duty.” (Emphasis added.) R.C. 2901.03(B). There is no penalty for simply
having a prior domestic-violence conviction.
{¶18} R.C. 2937.06 describes plea procedure at an arraignment. See State
v. Simones, 27 Ohio App.2d 9, 13-14 (3d Dist.1971) (after the requirements of
R.C. 2937.02 are met, a defendant is arraigned and required to plea). R.C.
2937.06(A) states that “[a]fter all motions are disposed of or if no motion is
presented, the court or magistrate shall require the accused to plead to the charge.”
(Emphasis added.) Similarly, R.C. 2937.09, which describes the plea procedure
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for felony cases at an arraignment in further detail, states, in relevant part, “If the
defendant enters a written plea of guilty or, pleading not guilty, affirmatively
waives the right to have the court or magistrate take evidence concerning the
offense, the court or magistrate forthwith and without taking evidence may find
that the crime has been committed.” (Emphasis added.)
{¶19} In sum, the Revised Code and the Rules of Criminal Procedure do
not contemplate guilty pleas to fewer than all elements of a crime. The language
employed by the sections of the Revised Code and the Rules of Criminal
Procedure pertinent to guilty pleas employ the words “charge,” “offense,”
“crime,” and “indictment” in describing guilty plea procedure. The plain meaning
of the words “charge,” “offense,” “crime,” and “indictment” indicate that it was
the General Assembly and the Supreme Court’s intent to allow for a guilty plea to
an entire offense, not individual elements of an offense. Further, the General
Assembly defined “offense” in R.C. Chapter 2901 to include an act that is
punishable by a penalty. See R.C. 2901.03(B). There is no penalty for pleading
guilty to an element of an offense. The penalty is attached to the offense.
Consequently, a guilty plea cannot be made to fewer than all elements of an
offense.
{¶20} This case is analogous to State v. Klein, 10th Dist. Franklin No.
03AP-945, 2004-Ohio-4557, in which the Tenth District determined that the
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defendant’s “customized” no-contest plea was invalid as a matter of law. In Klein,
the defendant entered a no-contest plea “to the elements of the offense, other than
[the] prior conviction.” (Emphasis sic.) Id. at ¶ 6. Klein crossed out the words
“indictment, information, or complaint” and inserted the word “stipulation” on the
actual plea form to indicate what he was admitting to. Id. The Tenth District
concluded, “This type of customized no contest plea is not an option for
defendants under Crim.R. 11. The plain language of the rule mandates the
defendant admit to the truth of ‘the facts alleged in the indictment.’” Id.
{¶21} Here, Bibler wrote “prior conviction element only” next to the
caption “Entry of Guilty Plea” on the plea form.9 (Nov. 26, 2013 JE, Doc. No.
40). Bibler also amended the plea form by inserting “prior conviction element of
the” between the words “the” and “offense” and scratched out the “s” on the word
“offenses” in the phrase “I now desire to plead GUILTY to the offenses set forth
below.” (Id.). Further, he made the following italicized and strikethrough changes
to the plea form:
I understand that my guilty plea is a complete admission of guilt to
the prior conviction element and a waiver of any and all
constitutional, statutory, or factual defenses in this case. I further 9 The Marion County Court of Common Pleas form references “R.C. 2943.03(1)(B)(1)” in brackets at the end of the section of information attested to by a defendant. (Doc. No. 40). There is no “(1)(B)(1)” subsection of R.C. 2943.03. See R.C. 2943.03. It is also unclear whether the document’s reference to “R.C. 2943.03” relates to the entire preceding information, or just the question “Are you, a citizen of the United States?” (See Doc. No. 40). There is no requirement in R.C. 2943.03 that a defendant attest to his citizenship.
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understand that by pleading GUILTY, I waive a number of
important rights, including the right to have a trial by jury, the right
to confront and cross-examine the State’s witnesses who testify
against me, the right to subpoena witnesses in my behalf, and the
right to require the State to prove my guilt beyond a reasonable
doubt at a trial at which I cannot be compelled to testify against
myself with respect to the prior conviction element. I understand
that the Court upon acceptance of my plea of GUILTY may proceed
with judgment and sentence. I am pleading guilty voluntarily. I am
satisfied with the legal representation and advice I have received
from my attorney. If I am found guilty of domestic violence, my
conviction will be for a felony four offense.
(Id.). Lastly, the court added the phrase “to the prior conviction element” after the
statement, “The court, being fully advised as to the facts; hereby accepts the
Defendant’s plea of GUILTY * * *.” (Id.). The prosecuting attorney signed the
plea form in acceptance “as to form only.” (Id.).
{¶22} Like the Tenth District in Klein, we also conclude that this type of
customized plea is not permitted by Crim.R. 11, or R.C. 2943.03.
{¶23} Also informative to our holding is the law regarding bifurcated trials.
The State argues that not only do the Revised Code and the Rules of Criminal
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Procedure prohibit pleading guilty to an element of an offense, but the resulting
effect of any such plea – essentially a bifurcated proceeding – is prohibited by case
law. In its argument, the State reiterates that “where the existence of a prior
offense is an element of a subsequent crime, the state must prove the prior
conviction beyond a reasonable doubt * * * [and] [t]he jury must find that the
previous conviction has been established in order to find the defendant guilty on
the second offense.” State v. Day, 99 Ohio App.3d 514, 517 (12th Dist.1994).
Further, for a valid conviction of the elevated degree of the offense, the jury’s
verdict form must include either the degree of the offense of which the defendant
is convicted or a statement that an aggravating element has been found to justify
convicting a defendant of a greater degree of a criminal offense. See Pelfrey, 112
Ohio St.3d 422, at syllabus; R.C. 2945.75(A)(2).
{¶24} As an essential element of a crime that must be found by a jury, “a
defendant is not entitled to bifurcate proceedings, nor may he waive jury trial on a
prior conviction element alone.” State v. Nadock, 11th Dist. Lake No.
2009-L-042, 2010-Ohio-1161, ¶ 38, citing State v. Sweeny, 131 Ohio App.3d 765,
773 (2d Dist.1999). See also State v. Runner, 7th Dist. Belmont No. 99-BA-36,
2001-Ohio-3263, *3 (May 16, 2001) (“Nearly every appellate district in Ohio has
held that an accused has no right to a bifurcated proceeding absent an enactment
by the General Assembly of a statute conferring such right.”). Similarly, this court
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has held that a prior conviction of domestic violence is an essential element of a
subsequent offense and may not be bifurcated from the remainder of the elements
of the subsequent offense. State v. Maynez, 3d Dist. Defiance No. 4-07-23,
2008-Ohio-3054, ¶ 9. This court also acknowledged that “the current state of the
law expressly prohibits waiving an element from the jury.” State v. Sanders, 3d
Dist. Allen No. 1-09-01, 2009-Ohio-5437, ¶ 44.
{¶25} The State argues that permitting a partial plea of guilty is essentially
creating a de facto bifurcated proceeding. Bibler equally concedes that the trial
court is creating a bifurcated proceeding in accepting his partial guilty plea, but
argues, “it is time to change the ‘bifurcation rule’ in Ohio as it pertains to ‘prior
convictions’ so fair trials are held in Ohio if a Defendant waives his right to jury
trial on the prior conviction element and pleads guilty to its existence to a Judge.”
(Appellee’s Brief at 8). In support of his argument, Bibler advances three claims:
that the prior-conviction element is only a sentencing factor, not an essential
element; that Old Chief v. United States, 519 U.S. 172 (1997), prohibits the name
and nature of a prior conviction from being presented to a jury where a defendant
assents to it; and that this court should depart from the longstanding bifurcation
rule where a defendant fully admits the prior-conviction element and properly
waives his right to a jury trial on that element.
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{¶26} Bibler first asserts that the General Assembly has impermissibly
made a prior conviction for domestic violence an element of the crime, when it is
only a sentencing factor based on Apprendi v. New Jersey, 530 U.S. 466 (2000).
Bibler contends that the United States Supreme Court excluded prior convictions
as matters that should be decided by juries. Id. at 489. However, Apprendi is
inapplicable to the facts in this case.
{¶27} The defendant in Apprendi was charged with violating a New Jersey
statute prohibiting the possession of a firearm for an unlawful purpose after he
fired several shots into the home of an African-American family. Id. at syllabus.
After pleading guilty to the charged offense, the prosecutor filed a motion to
enhance Apprendi’s sentence, alleging that Apprendi’s actions were racially
motivated. Id. Apprendi was sentenced to 12 years, 2 years more than the 10-year
maximum sentence for the offense to which he plead guilty. Id. Apprendi
challenged his enhanced sentence, and the United States Supreme Court held that
“[t]he Constitution requires that any fact that increases the penalty for a crime
beyond the prescribed statutory maximum, other than the fact of a prior
conviction, must be submitted to a jury and proved beyond a reasonable doubt.”
Id.
{¶28} This court acknowledged that the Apprendi rule “clearly states that
for the purpose of increasing a penalty for a crime beyond the statutory maximum,
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prior convictions do not have to be submitted to a jury and proven beyond a
reasonable doubt.” State v. Watkins, 3d Dist. Allen No. 1-04-17, 2005-Ohio-2359,
¶ 25, rev’d in part on other grounds, sub nom. In re Ohio Criminal Statutes Cases,
109 Ohio St.3d 313 (2006), citing Blakely v. Washington, 542 U.S. 296 (2004).
{¶29} Here, the prior-conviction element is not merely a fact that enhances
the penalty, as Bibler would like us to infer from Apprendi. The prior-conviction
element is an element of the offense that elevates the degree of the offense. Allen,
29 Ohio St.3d at 54. As such, we reject Bibler’s argument that this court should
depart from Ohio law and treat the prior-conviction element only as a
sentencing-enhancement factor.
{¶30} Next, Bibler urges that, even if we are unwilling to conclude that a
prior conviction for domestic violence is merely a sentencing-enhancement factor,
this court should, in the interest of fairness, depart from the longstanding
bifurcation rule and allow him to plead guilty to the prior-conviction element and
prevent the State from presenting it to the jury. Bibler bolsters his argument that
he should be permitted to plead guilty to the prior-conviction element of domestic
violence by reasoning that he will be unduly prejudiced should the State be
allowed to present evidence of his prior conviction to the jury. Maintaining that
he should be able to prevent evidence of his prior conviction from being presented
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to the jury, Bibler and the trial court rely on Old Chief, 519 U.S. 172. However,
Bibler and the trial court’s reliance on Old Chief is misguided.
{¶31} The defendant in Old Chief, Johnny Lynn Old Chief, was charged
with violating a federal statute prohibiting the possession of a firearm by anyone
with a prior felony conviction. Id. at syllabus. Old Chief offered to stipulate to
the prior-conviction element to preclude the prosecutor from revealing the name
and nature of his prior felony conviction to the jury because he believed evidence
revealing the name and nature of his prior conviction would unfairly prejudice his
case. Id. at 175. The trial court rejected Old Chief’s stipulation, and he was
convicted. Id. at syllabus.
{¶32} The United States Supreme Court concluded that the trial court
abused its discretion by rejecting Old Chief’s stipulation. Id. at 174. The United
States Supreme Court based its conclusion on the specific federal statute under
which Old Chief was charged. As such, the application of Old Chief is restricted
to situations where “the fact of the qualifying conviction is alone what matters
under the statute.” Id. at 190. “[T]he fact that Old Chief’s prior conviction was
for assault resulting in serious bodily injury rather than, say, for theft was not itself
an ultimate fact, as if the statute had specifically required proof of injurious
assault.” Id. at 178. In situations where the underlying statute is unconcerned
with the specifics of the prior conviction, the United States Supreme Court noted,
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“The most the jury needs to know is that the conviction admitted by the defendant
falls within the class of crimes that Congress thought should bar a convict from
possessing a gun, and this point may be made readily in a defendant’s admission
and underscored in the court’s jury instructions.” Id. at 190-191.
{¶33} Bibler is requesting that this court liberally construe Old Chief to
exclude all mention of a prior conviction if a defendant assents to the prior
conviction, whether through stipulation or pleading guilty to it. In making that
request, Bibler raises the same argument raised by the Sixth District that “at least
three justices of the Ohio Supreme Court have recently indicated that Ohio should
adopt the holding in Old Chief.” State v. Robinson, 6th Dist. Lucas No.
L-10-1369, 2012-Ohio-6068, ¶ 41, citing State v. Baker, 126 Ohio St.3d 1215,
2010-Ohio-3235 (Lundberg Stratton, J., Brown, C.J., and Pfeifer, J. dissenting).
Therefore, Bibler reasons that the holding in Old Chief should be adopted here to
preclude the State from presenting evidence of his prior domestic-violence
conviction to the jury.
{¶34} Again, Bibler’s argument is off point. A close reading of Old Chief
does not permit this court to apply Old Chief in the manner Bibler urges and the
manner the trial court did in arriving at its conclusion that Bibler may plead guilty
to a single element of a multi-element offense and exclude all mention of the prior
conviction from the jury. Similarly, the issue raised in Baker was whether the
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holding of Old Chief “granting a right to a Defendant to stipulate to prior criminal
convictions appl[ies] to state law prosecutions * * *.” Baker at ¶ 4. Bibler is not
arguing a right to be able to stipulate to a prior conviction. Rather, he contends
that the portion of Old Chief precluding the name and nature of the prior
conviction from the jury be extended in his case.
{¶35} Other Ohio Appellate Districts have been asked to apply Old Chief in
the same fashion urged by Bibler, and have rejected the request. See Robinson at ¶
50 (The language of R.C. 2923.13(A)(3) reflects that the General Assembly
envisioned jurors learning the name and basic nature of the defendant’s prior
offense.); State v. Jordan, 8th Dist. Cuyahoga No. 73453, 1999 WL 257808, *11
(Apr. 29, 1999) (A prior conviction is an essential element of the offense, and the
trial court was not presented with an adequate evidentiary alternative that would
have satisfied the prior-conviction element.); State v. Carr, 11th Dist. Lake No.
98-L-131, 1999 WL 1314672, *3-4 (Dec. 10, 1999) (The name and nature of a
defendant’s prior DUI convictions were necessary, as an element of the offense, in
order for the jury to find the defendant guilty of the fourth-degree felony of
driving under the influence of alcohol.), citing State v. Payne, 11th Dist. Lake No.
97-L-284, 1999 WL 262177, *4 (Mar. 31, 1999) (The State is required to prove
that the defendant had three or more prior DUI convictions within the last six
years as an element of the offense charged.). But see State v. Henton, 121 Ohio
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App.3d 501, 507-508 (11th Dist.1997) (defendant permitted to exclude evidence
of a second prior felony-drug-abuse conviction “because the second conviction
was not necessary to prove an element of the charged offense”).
{¶36} Most pertinently, the Eleventh District addressed applying Old Chief
to the situation where a defendant sought to stipulate to prior domestic-violence
convictions to prevent the jury from learning of the prior convictions. Nadock,
2010-Ohio-1161, at ¶ 25. In concluding Old Chief was not applicable, the
Eleventh District stated, “Unlike the defendant in Old Chief, appellant was not
simply offering to stipulate to his status as a two-time domestic violence convict to
the jury; rather, appellant’s offer to stipulate was expressly conditioned upon the
state excluding all mention of those previous convictions from the state’s
case-in-chief.” Id. at ¶ 32.
{¶37} However, Bibler notes that the Eighth District acknowledged the
need to adopt Old Chief in Ohio to prevent the State from admitting the name and
nature of a prior conviction if a defendant offers to concede as much. State v.
Woods, 8th Dist. Cuyahoga No. 78752, 2001 WL 1002233, *2 (Aug. 30, 2001).
The defendant in Woods was charged with, among other things, having a weapon
under disability in violation of R.C. 2923.13, which provides, in relevant part:
* * * [N]o person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if any of the following apply:
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(2) The person is under indictment for or has been convicted of any
felony offense of violence * * *.
R.C. 2923.13(A)(2). Woods stipulated to the prior conviction that led to the
offense of having a weapon under disability charge. Id. at *1. The Eighth District
concluded, “While we are unpersuaded that Old Chief is entirely inapplicable in
this case, we are, nonetheless, unable to find that the error complained of reaches
the level of plain error.” Id. at *5. Bibler argues that, but for the procedural issue,
the Eighth District would have adopted Old Chief to prevent the State from
presenting the name and nature of a prior conviction to a jury where a defendant
concedes to the prior conviction. Further, Bibler urges this court to adopt the
Eighth District’s reasoning, and embrace Old Chief’s principles, to prevent any
mention of a prior conviction where a defendant assents to it.
{¶38} Even assuming Bibler correctly argues that the Eighth District would
have broadly applied Old Chief, the offense with which the defendant in Woods
was charged, R.C. 2923.13, is not akin to R.C. 2919.25. It cannot be argued that
R.C. 2919.25 is not concerned with the name and nature of the prior offense. R.C.
2919.25(D)(3) elevates the degree of the offense “if the offender previously has
pleaded guilty to or been convicted of domestic violence.” (Emphasis added.)
R.C. 2919.25(D)(3).
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{¶39} Bibler’s argument is also belied by another Eighth District case, State
v. Arnold, 8th Dist. Cuyahoga No. 79280, 2002 WL 93423 (Jan. 24, 2002). In
Arnold, though the Eighth District did not address Old Chief, it concluded that the
trial court erred in preventing the State from introducing evidence of Arnold’s
prior domestic-violence conviction after Arnold stipulated to the prior conviction.
Id. at *1. The Eighth District reasoned that the State must be permitted to present
to the jury its case regarding all elements of the offense, including the fact of the
prior conviction for domestic violence. Id. at *3.
{¶40} Given the above, we reject, for two reasons, Bibler’s argument that
Old Chief should be adopted to preclude the State from presenting any evidence of
a prior conviction of domestic violence where a defendant fully admits to the prior
conviction. First, Old Chief did not involve a defendant’s ability to plead guilty to
fewer than all of the elements of an offense; rather, Old Chief involved a
defendant’s right to stipulate to the prior-conviction element. Bibler is not seeking
to stipulate to the prior-conviction element. Second, even if Bibler were seeking
to stipulate to the prior-conviction element, the name and nature of Bibler’s prior
offense are relevant. As previously noted, the statute specifically requires proof
Bibler was previously convicted of domestic violence to elevate the degree of the
offense. See 2919.25(D)(3). Also, similar to Nadock and Arnold, Bibler is
seeking to exclude all mention of his prior conviction from the State’s
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case-in-chief. Accordingly, we conclude Old Chief is inapplicable to allow Bibler
to exclude evidence of his prior domestic-violence conviction.
{¶41} Furthermore, we reject Bibler’s argument that this court should
depart from the longstanding bifurcation rule where a defendant seeks to fully
admit to the prior-conviction element by waiving his right to a trial by jury on that
element. Bibler attempts to distinguish the effect of pleading guilty to an element
of an offense from creating a bifurcated proceeding, in the traditional sense, by
arguing that his guilty plea does not create two separate trials because he already
fully admitted to the prior conviction. Bibler argues that a traditional bifurcated
proceeding is not established because the trial court is permitted to convict and
sentence him on the elevated offense if the jury convicts him on the underlying
{¶42} The trial court concluded that it was not bifurcating the proceedings
in accepting Bibler’s partial guilty plea because Bibler “knowingly, voluntarily,
and intelligently waiv[ed] his right to trial as to [the prior-conviction] element.”
(Nov. 27, 2013 JE, Doc. No. 41). In reaching its conclusion, the trial court relied
on State v. Riley, 98 Ohio App.3d 801 (2d Dist.1994), and accepted Bibler’s
argument that, because a defendant may waive his or her right to a jury trial, he
should have the right to waive a trial by jury and plead guilty to a single element
of a multi-element offense. The trial court and Bibler’s reasoning is erroneous.
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{¶43} In support of his argument, Bibler argues that because the entry of a
guilty plea constitutes a waiver of a jury trial, “it may be an abuse of discretion for
a trial court to refuse to accept a guilty plea where it was voluntarily and
intelligently made, and where the defendant was able to articulate cogent and
consistent reasons for his plea.” (Appellee’s Brief at 2-3, quoting State v. Tate,
9th Dist. Summit No. 21943, 2005-Ohio-2156, ¶ 13).
{¶44} Bibler has a right to a trial by jury under the United States
Constitution and the Ohio Constitution; however, Bibler does not have the right to
insist on the opposite of that right. The Sixth Amendment to the U.S.
Constitution; Ohio Constitution, Article I, Section 5; Gannett Co. v. DePasquale,
443 U.S. 368, 382 (1979), citing United States v. Singer, 380 U.S. 24, 34-35
(1965) (“The ability to waive a constitutional right does not ordinarily carry with it
the right to insist upon the opposite of that right.”); State v. Griffith, 10th Dist.
Franklin No. 82AP-105, 1983 WL 3363, *2 (Feb. 17, 1983) (“There is no
constitutional right to waive a jury trial, the constitutional right being to have a
jury trial, not to waive one.”), citing Singer; State ex rel. Dayton Newspapers, Inc.
v. Phillips, 46 Ohio St.2d 457, 494 (1976) (“While an accused may waive his right
to a public trial, he cannot force a private trial.”).
{¶45} Similarly, as Bibler acknowledges, he does not have an absolute right
to have his guilty plea accepted. North Carolina v. Alford, 400 U.S. 25, 37-38
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(1970). It is not an abuse of discretion for the trial court to refuse to accept his
guilty plea where it is knowingly, intelligently, and voluntarily made because, as
we stated above, a defendant cannot plead guilty to fewer than all of the elements
of an offense. Conversely, it would be an abuse of discretion for a trial court to
accept his guilty plea to fewer than all of the elements of the offense.
{¶46} Next, the trial court’s reliance on Riley is improper. The defendant
in Riley was indicted for aggravated trafficking, with a prior drug-offense
conviction, in violation of R.C.2925.03(C)(1)(c). Id. at 803. Riley’s prior
conviction raised the offense from a third-degree felony to a second-degree felony.
Id. Prior to the start of the trial, Riley stipulated to his prior conviction. Id. As a
result of Riley’s stipulation, the trial court granted Riley’s motion in limine and
precluded the State from introducing into evidence, or mentioning, Riley’s
criminal record. Id. Riley was found guilty of aggravated trafficking in drugs. Id.
Five days after the trial court entered its judgment of conviction, the trial court
filed another entry stating, “It appearing to the court, by stipulation prior to the
trial, that the defendant was previously convicted of Aggravated Trafficking, the
State was not required to present evidence of same during its case-in-chief.” Id. at
804. Riley appealed his conviction, arguing that there was insufficient evidence
for the jury to have found him guilty of the additional element of having a prior
conviction for felony drug abuse, raising the degree of his subsequent offense. Id.
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{¶47} The Second District concluded that the trial court erred in removing
the prior-conviction element from the jury’s consideration without a proper waiver
signed by the defendant. Id. at 805. However, the Second District found the error
to be harmless after concluding that “the jury, had it been required to consider the
additional element of the existence of a prior conviction for a felony-drug-abuse
offense, would certainly have found for the state on that issue.” Id.
{¶48} The trial court’s reliance on Riley was erroneous because the Second
District’s legal analysis is flawed and because Riley sought to remove the
prior-conviction element from the jury’s consideration through stipulation, not by
pleading guilty to the prior-conviction element. The Second District’s legal
analysis in Riley is improper because the Second District failed to address the
longstanding bifurcation rules. Equally, in determining that Riley was not
controlling, the Eighth District concluded that a trial may not be bifurcated when
the prior-conviction element enhances the degree of the offense, regardless of
whether a defendant executes a valid, written waiver. State v. Mitchell, 8th Dist.
Cuyahoga Nos. 67490 and 67491, 1996 WL 695665, *3-4 (Dec. 5, 1996), citing
State v. Fittro, 66 Ohio St.3d 16, 16 (1993). Additionally, a close reading of Riley
indicates that the Second District did not contemplate a defendant waiving a jury
trial on the prior-conviction element by pleading guilty to the element; rather, the
Second District contemplated waiving the requirement that a jury find the
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prior-conviction element exists when a defendant stipulates to that element. See
Riley at 805.
{¶49} The State equates the resulting effect of allowing Bibler to plead
guilty to the prior-conviction element of the offense to the two separate trials
discussed in State v. Miller, 12th Dist. Warren No. CA2011-02-013,
2012-Ohio-997. In Miller, the Twelfth District concluded that the trial court erred
in allowing Miller to conduct his trial in two consecutive stages—a trial by jury on
a violation of operating a vehicle while under the influence of alcohol (“OVI”),
and, if the jury found him guilty, then a bench trial on his prior conviction. Id. at ¶
3. The trial court allowed Miller to bifurcate his trial after concluding the prior
OVI conviction was not an essential element of the subsequent offense, and
granted Miller’s motion in limine precluding the State from presenting evidence of
the prior conviction at trial. Id. at ¶ 3-4. The Twelfth District concluded that the
trial court erred in bifurcating the proceedings and allowing the jury trial on only
the remaining elements of the offense. Id. at ¶ 12.10
{¶50} Consequently, the rationale in Riley is contrary to law and Riley is
inapplicable to the facts in this case. It was improper for the trial court to rely on
Riley to allow Bibler to plead guilty to the prior-conviction element, and
10 Miller’s conviction could not be disturbed because double jeopardy had attached, even though the court found the trial court erred in bifurcating the proceedings. State v. Miller 12th Dist. Warren No. CA2011-02-013, 2012-Ohio-997, ¶ 15.
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subsequently preclude the State from presenting evidence of the prior-conviction
element at trial based on Bibler’s “written waiver.”
{¶51} Therefore, for all of the reasons stated above, the State is correct in
its argument that the resulting effect of permitting a guilty plea to fewer than all of
the elements of an offense creates a de facto bifurcated proceeding, which is
prohibited by Ohio law. Maynez, 2008-Ohio-3054, at ¶ 9.
{¶52} We hold that the trial court erred as a matter of law when it accepted
Bibler’s guilty plea to fewer than all of the elements of the offense for which he
was indicted. As it was erroneous for the trial court to accept Bibler’s guilty plea
to fewer than all of the elements of the offense, the trial court’s order in limine
precluding the State from presenting evidence of Bibler’s prior conviction to the
jury was also erroneous. It is within the trial court’s discretion to admit or exclude
evidence. Sage, 31 Ohio St.3d 173, at paragraph two of the syllabus. The trial
court specifically concluded, “[I]t will not be necessary for the State to prove at
trial the existence of a prior conviction element, since [Bibler] has pleaded guilty
to this element.” (Nov. 27, 2013 JE, Doc. No. 41). Because the trial court’s order
in limine is based on its erroneous acceptance of Bibler’s partial guilty plea, we
hold that the trial court abused its discretion in granting Bibler’s motion in limine.
{¶53} The State’s assignment of error is sustained.
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{¶54} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
WILLAMOWSKI, P.J. and SHAW, J., concur.
/jlr
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