State v. Carter

• Decision Date: 14 November 1979
• Docket Number: No. 78-1434,78-1434
• Citation: 60 Ohio St.2d 34,14 O.O.3d 199,396 N.E.2d 757
• Parties: , 14 O.O.3d 199 The STATE of Ohio, Appellant, v. CARTER, Appellee.
• Court: Ohio Supreme Court

Page 34

60 Ohio St.2d 34

396 N.E.2d 757, 14 O.O.3d 199

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

No. 78-1434.

Supreme Court of Ohio.

Nov. 14, 1979.

On May 30, 1972, the defendant-appellee herein, George H. Carter, was secretly indicted for murder in the first degree. ¹ On July 20, 1972, the defendant was arraigned in the Court of Common Pleas of Summit County, where he waived reading of the indictment and pleaded not guilty. The court appointed two attorneys to represent the defendant. On December 13, 1972, a jury trial was commenced. After hearing the testimony of both parties, the arguments of counsel and the charge by the court, the jury began its deliberations on December 15, 1972. On December 18, 1972, when the jury returned to the court, defendant entered a plea of guilty to second degree murder, ² and the original charge was dismissed. He received a sentence of life imprisonment.

No appeal was directly taken from the judgment of conviction. However, on April 11, 1977, defendant petitioned the Court of Common Pleas for post-conviction relief. He based the petition upon the allegation that his guilty plea had not been knowingly, willingly and intelligently made. The trial court denied the petition for post-conviction relief because the defendant had not exhausted his appellate remedies. The Court of Appeals affirmed the decision of the trial court on October 26, 1977.

In April 1978, defendant filed a notice of appeal, pursuant to App.R. 5(A) and moved the court for leave to perfect a direct and delayed appeal. On April 25, 1978, the Court of Appeals granted this motion and allowed the delayed appeal.

The Court of Appeals remanded the cause on September 13, 1978, for an evidentiary hearing to "ascertain if the advice required by Henderson v. Morgan, supra ((1976), 426 U.S. 637 (96 S.Ct. 2253, 49 L.Ed.2d 108)), was furnished by counsel or otherwise."

On October 27, 1978, the trial court reported its written findings to the Court of Appeals. The trial court found as follows: (1) that none of the prosecutors involved in the prosecution of the defendant could recall discussing with the defendant or informing him at any time that the crime of second degree murder involved an intentional and malicious killing of his wife; (2) that neither defense counsel could specifically recall discussing with or advising the defendant as to the essential elements of the crime of second degree murder prior to his making a plea of guilty to that offense and (3) that the court could not find from the evidentiary hearing that the defendant was at any time specifically informed or aware that the essential elements of the crime to which he entered a plea of guilty involved the elements of an intentional killing or malice.

On November 29, 1978, the Court of Appeals vacated defendant's plea to second degree murder and remanded the cause to the trial court for further proceedings.

The cause is now before this court upon the allowance of the state's motion for leave to appeal.

Stephan M. Gabalac, Pros. Atty., and Carl M. Layman, III, Akron, for appellant.

Murty, Burdon & Pierce and Charles E. Grisi, Akron, for appellee.

PER CURIAM.

Initially, we are asked to decide whether the decision in Henderson v. Morgan (1976), 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108, should be given retroactive effect to the cause now before this court.

The state argues that Henderson, supra, should not be applied retroactively to a guilty plea that was taken in 1972. The effect of its argument is that Henderson represents a new constitutional rule of law which overrules earlier decisions concerning voluntary guilty pleas. The state argues further that to apply the new requirements presented in Henderson, supra, would upset the effective administration of justice and destroy justifiable reliance in the old rules. Rather than analyze and weigh the positive and negative aspects of retrospective application, we find that retroactivity is not an issue in the present cause for the reason that Henderson did not espouse a new constitutional rule of law.

The opinion of the court in Henderson, supra, relied on established rules of law; it did not declare a new constitutional rule and neither did it express the belief that the opinion would have retroactive consequences. Only the dissenting opinion raises such a possibility. The concurring opinion of Justice White discusses the dissent's argument and explains what is required before a constitutional rule will be applied retroactively. He states, at page 651, 96 S.Ct. at page 2260, as follows: "In order to escape application of a constitutional rule to a particular criminal case, on non-retroactivity grounds, the State must point to a judicial decision occurring after the operative facts of the case in question clearly establishing the rule." The phrase "clearly establishing the rule" modifies "judicial decision." In other words, for the state to argue that Henderson should not be retroactive, it must be able to point to a judicial decision (Henderson ) and state that such decision established a rule that was different from the one in effect when the guilty plea (the operative facts) was taken.

It is quite evident that the concurring opinion had grave doubts whether Henderson represented a new rule of law. Justice White, at pages 651-652, 96 S.Ct. at page 2261, states: "Either a new constitutional rule is being established in This case * * *, or, as I believe to be true, this case rests on the long-accepted principle that a guilty plea must provide a trustworthy basis for believing that the defendant is in fact guilty." The sentiment raised in the latter portion of this statement is affirmed by the court's opinion. In stating what constitutes a voluntary plea, Justice Stevens, at page 645, 96 S.Ct. at pages 2257-58, wrote for the court:

" * * * (T)he plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.' Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859."

The statement that a defendant has not been advised by his counsel, by the court or anyone else, of the essential elements of the crime with which he was charged, is only another way of stating that the defendant has not received real notice of the true nature of the charge against him. This is not a new rule; it is a restatement and simply expounds upon the fundamentals of due process. For the foregoing reasons, we decline to discuss the retroactive application of Henderson.

In determining whether the defendant's plea was made voluntarily, intelligently and knowingly, we look at the due process requirements as they existed at the time the defendant changed his plea from not guilty to guilty of second degree murder. The state and federal requirements were as follows: that the defendant had been advised of the rights he was waiving, that he understand those rights, that he was motivated by a desire to avoid a more severe penalty, that he received real notice of the nature of the charges against him and that he understood those charges. See State v. Piacella (1971), 27 Ohio St.2d 92, 271 N.E.2d 852; Smith v. O'Grady, supra.

The question before this court is whether the defendant received notice of the charges levelled against him and, if so, did he understand the nature of those charges. As to the latter requirement, there is no easy or exact way to make such a determination, I. e., to determine what someone subjectively understands. If the defendant receives the proper information, then we can ordinarily assume that he understands that information. In this case, we must decide whether defendant's counsel, or someone else, provided defendant with information or notice of the charges. To do so, we look at all the...