State v. Billups

• Citation: 57 Ohio St.2d 31,385 N.E.2d 1308
• Decision Date: 28 February 1979
• Docket Number: No. 77-1291,77-1291
• Parties: , 11 O.O.3d 150 The STATE of Ohio, Appellee, v. BILLUPS, Appellant.
• Court: United States State Supreme Court of Ohio

Page 31

57 Ohio St.2d 31

385 N.E.2d 1308, 11 O.O.3d 150

The STATE of Ohio, Appellee, v. BILLUPS, Appellant.

No. 77-1291.

Supreme Court of Ohio.

Feb. 28, 1979.

Syllabus by the Court

A trial court does not commit prejudicial error under Crim.R. 11(C)(2) by entering a judgment of conviction upon a plea of guilty where the record of the guilty plea proceeding affirmatively demonstrates that: (1) the defendant was represented throughout the proceedings by counsel; (2) the trial court conducted a discussion with the defendant, apprising him of the nature of the charges and the minimum and maximum sentences for each offense, and determining the voluntariness of the submitted plea; (3) the trial court did not orally inform the defendant of each of his rights because the defendant acknowledged that he heard and understood the court's earlier colloquy with a previous defendant and did not desire his own recitation; (4) the defendant read and executed in open court, in the presence of defense counsel, a written document which clearly explained defendant's rights and stated that defendant was waiving them by entering his plea of guilty; and (5) the defendant was literate and had obtained a ninth grade education. (State v. Caudill, 48 Ohio St.2d 342, 358 N.E.2d 601, limited.)

On September 25, 1975, pursuant to bills of information issued by the Pickaway County prosecuting attorney, Allen Scott Billups, appellant herein, was charged with two counts of aggravated burglary (R.C. 2911.11), and two counts of grand theft (R.C. 2913.02). The facts giving rise to the charges implicated appellant in the armed and forcible burglary of occupied domiciles located in and around Lockbourne, Ohio. Appellant was apprehended after an extensive search, and thereafter incarcerated in lieu of a $10,000 bond on each count.

Appellant appeared before the Court of Common Pleas of Pickaway County on October 23, 1975, and, after waiving a preliminary hearing and indictment by the grand jury, plead guilty to two counts of aggravated burglary and two counts of grand theft. Before accepting his plea, the trial court offered to engage appellant in a formal colloquy intended to inform him of all his rights. Appellant, who was present when the court conducted this same colloquy with the previous defendant, rejected the offer, stating that he understood what had previously transpired. Thereafter, appellant executed, in open court and with defense counsel present, a written document which encompassed each of the rights set forth in Crim.R. 11(C)(2) and specified that the rights were being waived. Although the trial court requested that appellant read the written waiver and ask questions regarding its contents, the court did not orally inform defendant of all the rights set forth in Crim.R. 11(C)(2).

After hearing statements by counsel regarding appellant's prior criminal record and ruling out probation, the court sentenced appellant to a term of 4 to 25 years for each count of aggravated burglary and to a term of 2 to 5 years on each of the charges of grand theft, the sentences for all offenses to run concurrently.

In a split decision, the Court of Appeals affirmed the judgment of the trial court.

The cause is now before this court upon allowance of a motion for leave to appeal.

James R. Kingsley, Pros. Atty., for appellee.

P. Eugene Long, II, Circleville, for appellant.

HERBERT, Justice.

Appellant's sole contention is that the trial court erred when it accepted his guilty plea without first orally and personally advising him of each of his constitutional and other rights pursuant to Crim.R. 11(C)(2). Citing State v. Caudill (1976), 48 Ohio St.2d 342, 358 N.E.2d 601, appellant argues that such an error is prejudicial Per se and in effect requires the automatic reversal of his conviction. We disagree.

At the outset of the guilty plea proceedings, appellant was apprised fully of the charges against him, the minimum and maximum penalties, and was informed of his right to an indictment by a grand jury. The record shows that appellant was literate, having acquired a ninth grade education, and was in attendance when the trial judge advised the previous defendant of his rights immediately prior to appellant's appearance. When questioned by the trial judge whether appellant desired a recitation of rights on his behalf, appellant responded, "No, I understand." Reassuring the court that he understood what had transpired and that his pleas were voluntarily submitted, ¹ appellant thereafter executed, in open court with defense counsel present, a written waiver which clearly enumerated and explained appellant's rights and specified that appellant was waiving them. ²

Even though, as stated in Crim.R. 11(C)(2), trial courts should in every cause ascertain the validity of waivers, of constitutional and non-constitutional rights, by specific oral interrogation of the defendant, there is no constitutional mandate that such be done. Numerous authorities have refused to Ipso facto invalidate a guilty plea merely because the trial court failed to conduct a full colloquy with the defendant with regard to each of his rights, ³ or because the court accepted a written document from the defendant as evidence that he had been apprised of and knowingly waived his constitutional rights. ⁴

Crim.R. 11(C)(2) prohibits, in felony cases, a court from accepting a guilty plea without first addressing the defendant personally and:

"(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.

"(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.

"(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilty beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."

However, in State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163, this court held that when a trial court fails to adhere in every respect to the dictates of Crim.R. 11, but the record reveals that the court has "substantially complied" with the requirements of the Rule, absent a showing of prejudice to the rights of the defendant, the entered plea will not be set aside. Citing United States v. Brogan (C.A.6, 1975), 519 F.2d 28, Justice Celebrezze concluded that a "rote recitation of the rule was not necessary * * *." Stewart, 51 Ohio St.2d at page 92, 364 N.E.2d at page 1167.

The holding of Stewart is applicable to the cause at bar. The record herein demonstrates that the procedure employed by the trial court complied substantially with Crim.R. 11(C)(2). The result reached in Caudill, supra, and urged by appellant, if carried to a literal conclusion without regard to the facts in the case, ⁵ represents a regression to the exaltation of form over substance at a time when our criminal justice system is already laboring under immense burdens. See Chapman v. California (1967), 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705. "In all such inquiries, '(m)atters of reality, and not mere ritual, should be controlling,' " McCarthy v. United States (1969), 394 U.S. 459, 468, at footnote 20, ⁶ 89 S.Ct. 1166, 1171-72 N. 20, 22 L.Ed.2d 418.

Consequently, a trial court does not commit prejudicial error under Crim.R. 11(C)(2) by entering a judgment of conviction upon a plea of guilty where the record of the guilty plea proceeding affirmatively demonstrates that: (1) the defendant was represented throughout the proceedings by counsel; (2) the trial court conducted a discussion with the defendant, apprising him of the nature of the charges and the minimum and maximum sentences for each offense, and determining the voluntariness of the submitted plea; (3) the trial court did not orally inform the defendant of each of his rights because the defendant acknowledged that he heard and understood the court's earlier colloquy with a previous defendant and did not desire his own recitation; (4) the defendant read and executed in open court, in the presence of defense counsel, a written document which clearly explained defendant's rights and stated that defendant was waiving them by entering his plea of guilty; and (5) the defendant was literate and had obtained a ninth grade education.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

CELEBREZZE, C. J., and PAUL W. BROWN, SWEENEY and McCORMAC, JJ., concur.

WILLIAM B. BROWN, J., dissents.

HOLMES, J., not participating.

McCORMAC, J., of the Tenth Appellate District, sitting for LOCHER, J.

WILLIAM B. BROWN, Justice, dissenting.

The majority opinion holds that a court does not commit prejudicial error under Crim.R. 11(C)(2)(c) when the judge fails to personally inform a defendant of the constitutional rights he waives when he pleads guilty. I disagree.

The majority holding is not supported by precedent. In State v. Caudill (1976), 48 Ohio St.2d 342, 358 N.E.2d 601, this court ruled that the provisions of Crim.R. 11(C)(2) must be scrupulously followed and that the court must have an oral dialogue with a defendant in order to determine if his waiver of rights is intelligently made. While State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163, held that error in the application of Crim.R. 11(C)(2) is not always prejudicial, it does not support the majority's holding. Unlike Caudill and the instant cause, the Stewart case did not involve failure to personally inform a defendant of a constitutional right. Because the Stewart case is distinguishable from the case at hand and the Caudill ruling is not, precedent requires this court to find that...