State v. Flint

• Decision Date: 04 August 1986
• Docket Number: No. 50784,50784
• Parties: The STATE of Ohio, Appellee, v. FLINT, Appellant. *
• Court: Ohio Court of Appeals

Page 4

36 Ohio App.3d 4

520 N.E.2d 580

The STATE of Ohio, Appellee, v. FLINT, Appellant. ^*

No. 50784.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 4, 1986.

Syllabus by the Court

1. The best method of informing a defendant of his constitutional rights is by following Crim.R. 11(C).

2. Substantial compliance with Crim.R. 11(C) is required when accepting a plea of guilty from a defendant.

3. Substantial compliance with Crim.R. 11(C) is determined upon a review of the totality of the circumstances to determine that no prejudice has resulted to the defendant.

4. Crim.R. 11(C) does not state that a defendant must be informed of consecutive sentences. Pursuant to Crim.R. 11(C)(2)(a) the court must determine whether the defendant is making a voluntary plea "with understanding of the nature of the charge and of the maximum penalty involved." The maximum penalty refers to the charge to which the defendant is pleading guilty. There is no mention in the rule about consecutive sentencing.

John T. Corrigan, Pros. Atty., and Timothy X. McGrail, Cleveland, for appellee.

Hyman Friedman, County Public Defender, and Robert M. Ingersoll, Cleveland, for appellant.

PATTON, Judge.

This appeal arises as a result of the judgment entered by the Cuyahoga County Court of Common Pleas which accepted the appellant's plea of guilty to robbery, a violation of R.C. 2911.02. The facts giving rise to this appeal as contained in the record provide as follows.

On November 29, 1984, the Cuyahoga County Grand Jury indicted appellant, Maurice D. Flint, on one count of robbery in violation of R.C. 2911.02. On December 6, 1984, appellant was arraigned and entered a plea of not guilty. On January 14, 1985, appellant withdrew his previous plea and entered a plea of guilty to the charge of robbery. On March 26, 1985, appellant was sentenced to a term of five to fifteen years at the Chillicothe Correctional Institute.

On August 20, 1985, appellant filed a motion for permission to file a delayed appeal, which motion was granted.

The transcript reveals that on January 14, 1985, appellant, with his counsel, appeared before the judge for the purpose of entering a guilty plea to the charge of robbery. At that time, before accepting the guilty plea, the court conducted a hearing pursuant to Crim.R. 11 to inform the appellant of the nature of the charge, the maximum penalty involved and his constitutional rights. The matter of the appellant's parole status was also discussed. The following exchange occurred:

"THE COURT: It is my understanding you are currently on parole for some other offense.

"MR. FLINT: Yes.

"THE COURT: Are you on paper for anything else besides the parole for this other offense?

"MR. FLINT: No.

"THE COURT: By entering your plea of guilty technically what that means is the Parole Board can take you off parole and you can be sent back to the institution for the initial sentence that was given to you, do you understand that?

"MR. FLINT: Yes." (Emphasis added.)

The appellant informed the court that he understood and would waive his constitutional rights. After a full explanation of his constitutional rights pursuant to Crim.R. 11, appellant voluntarily entered a plea of guilty. The court accepted the plea and appellant was referred to the probation department for a presentence investigation.

On appeal, appellant assigns one error:

"The trial court denied Maurice Flint, a parolee, his constitutional rights to a trial by jury and due process when it accepted a guilty plea without first ascertaining that the plea was made with a full understanding of its consequences and effect upon Maurice Flint as a parole violator."

I

In his assignment of error, appellant contends that the court erred in accepting the appellant's guilty plea because the record fails to demonstrate that appellant understood the effects of a guilty plea as a parole violator. This contention is without merit.

Crim.R. 11 provides for the constitutional requirements which must be met before a trial court may accept a guilty plea by the defendant. Crim.R. 11(C) provides in part:

"(C) Pleas of guilty and no contest in felony cases.

" * * *

"(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such 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 a 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 guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself."

The first time the Ohio Supreme Court examined Crim.R. 11(C) was in the case of State v. Caudill (1976), 48 Ohio St.2d 342, 2 O.O.3d 467, 358 N.E.2d 601. In Caudill, the court examined the circumstances surrounding defendant's plea of no contest. The court held in paragraph one of its syllabus:

"In accepting a written plea of no contest to a felony charge, the trial court must adhere scrupulously to the provisions of Crim.R. 11(C)(2)."

The court in Caudill continued at 345-346, 2 O.O.3d at 469-470, 358 N.E.2d at 603:

"Clearly this provision of the rules contemplates a dialogue requiring more than a perfunctory response from the defendant. There is an additional provision of Rule 11(C)(2)(b) requiring the court to inform the defendant of the effect of his plea of no contest and to make the same determination that the defendant understands the significance of a no contest plea.

" * * *

"The provisions relating to the determination of the defendant's understanding of his plea of guilty or no contest are recited three times in Crim.R. 11(C). They are clearly intended to be scrupulously and literally heeded.

"Under the circumstances of this case, both the nature of the offense charged and the apparent limited mental capacity of the 18-year-old defendant should have underscored the importance of meticulous adherence to the provisions of Crim.R. 11(C). * * * " (Emphasis added.)

However, the Caudill rule of scrupulous adherence was short-lived. In State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163, the court modified Caudill in paragraph one of its syllabus:

"Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R.C. 2903.02) without personally advising the defendant that he is ineligible for probation, such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim.R. 11. (Paragraph one of the syllabus in State v. Caudill, 48 Ohio St.2d 342, modified [2 O.O.3d 467, 358 N.E.2d 601].)" (Emphasis added.)

In Stewart, supra, the trial court neglected to specifically inform the defendant, who was pleading guilty to murder, that he was not eligible for probation. The Supreme Court held at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167:

" * * * [A]lthough it can validly be argued that the trial court should adhere scrupulously to the provisions of Crim.R. 11(C)(2) (State v. Caudill [1976], 48 Ohio St.2d 342, 358 N.E.2d 601), there must be some showing of prejudicial effect before a guilty plea may be vacated. See Crim.R. 52(A). This court is of the opinion that the appellant has not demonstrated that he was in any way prejudiced by the oversight of the trial court. See Kelleher v. Henderson (C.A. 2, 1976), 531 F.2d 78, where it was held that knowledge of maximum and minimum sentences is not constitutionally required; the test is whether the plea would otherwise have been made. See, also, Bell v. Estelle (C.A. 5, 1975), 525 F.2d 656. In the instant case, the factual circumstances indicated a guilty plea to a lesser offense was the wiser course to follow, and the absence of a ritualistic incantation of an admonishment which is not constitutionally guaranteed does not establish grounds for vacating the plea.

"The trial court substantially complied with the requirements in Crim.R. 11, and the failure to personally advise appellant that in entering a plea of guilty to murder he would not be eligible for probation does not rise to the status of prejudicial error." (Emphasis added.)

Therefore, the idea of scrupulous adherence to the provisions of Crim.R. 11(C)(2) gave way to a substantial compliance to the rule provided no prejudicial effect occurred. In State v. Carter (1979), 60 Ohio St.2d 34, 14 O.O.3d 199, 396 N.E.2d 757, the Ohio Supreme Court expanded the idea of substantial compliance by holding that in order to determine whether or not substantial compliance has occurred, a reviewing court must look to the totality of the circumstances. In Carter, supra, the court held at 38, 14 O.O.3d at 201, 396 N.E.2d at 760:

"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 particular facts and circumstances surrounding the case. Johnson v. Zerbst (1938), 304 U.S....