State v. Griffey, 72-409

• Decision Date: 03 July 1973
• Docket Number: No. 72-409,72-409
• Citation: 35 Ohio St.2d 101,298 N.E.2d 603
• Parties: , 64 O.O.2d 62 The STATE of Ohio, Appellant, v. GRIFFEY, Appellee.
• Court: Ohio Supreme Court

Page 101

35 Ohio St.2d 101

298 N.E.2d 603, 64 O.O.2d 62

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

No. 72-409.

Supreme Court of Ohio.

July 3, 1973.

Syllabus by the Court

A defendant's plea of guilty in a felony case was voluntarily, knowingly and intelligently made where the record discloses that: (1) defendant's counsel explained to him the facts and circumstances surrounding his plea; (2) the trial court inquired of defendant whether he understood that he had a right to trial by jury or to the court, and informed defendant that the state was obligated to prove his guilt beyond a reasonable doubt, and that the crime charged was an offense for which he could be incarcerated; (3) defendant indicated to the court that he understood those rights, that he was pleading guilty of his own free will and that no inducement or promise had been made to him in entering his plea; (4) defendant had already been confronted by his accusers at a preliminary hearing; and (5) the other count of a two-count indictment was nolled, indicating that defendant was motivated by a desire to seek a lesser penalty.

Defendant John W. Griffey, was arrested on April 25, 1969, on the charge of uttering a forged check, dated April 21, 1969, in the amount of $136.37, payable to Peter Wallack and drawn against the payroll account of Nationwide Floor Condition Company, Cleveland, Ohio, in the Central National Bank of Cleveland, with the intent to defraud, knowing the check to be forged. He cashed the check at the Convenient Food Market, 5155 Mayfield Road, Lyndhurst, Ohio, on April 23, 1969. Griffey was a 31-year-old married man who lived in Painesville, Ohio.

On April 28, 1969, Griffey appeared in the Lyndhurst Municipal Court with an attorney and requested a continuance of the preliminary hearing to May 12, 1969, at 10:00 a. m. The judge granted this request and reduced the bond from $10,000 to $5,000 at defendant's request.

On May 14, 1969, the preliminary hearing was again continued to May 19, 1969. At this time, defendant retained a new attorney who admittedly, by defendant's present counsel in the delayed appeal to this court, is a competent criminal lawyer with broad experience as a prosecutor and as a defense attorney.

On May 19, 1969, defendant appeared again in the Municipal Court with his new attorney and pleaded 'not guilty.' A prelimiary hearing was had and Judge Martin J. Wegman found that there was probable cause to believe that the offense was committed and that the defendant committed the offense, and bound him over to the grand jury. The court, on that occasion, further reduced the bond to $2,500. The state subpoenaed as witnesses Judith Marietta and Paul Hanley, who were present at the preliminary hearing and testified.

On July 1, 1969, defendant was indicted for forgery, with a count of uttering and publishing a forged instrument. On July 16, 1969, defendant, with his attorney, appeared in the Common Pleas Court before Judge George J. McMonagle who advised him of his constitutional rights, including his right to counsel. Arraigned on the indictment, defendant entered a plea of 'not guilty.' The court continued the bond of $2,500, and a pre-trial hearing was set for August 20, 1969.

There is nothing in the record as to whether a pretrial hearing was held, but it does show that, on September 9, 1969, defendant was before the court, represented by his new lawyer, and was again advised by the court of his constitutional rights. Thereupon defendant withdrew his former plea of 'not guilty' and entered a plea of 'guilty' to uttering and publishing a forged instrument as charged in the second count of the indictment, and the court, upon the recommendation of the prosecuting attorney, entered a nolle prosequi as to the first count of forgery. The defendant was referred to the probation department for investigation and a pre-sentence report. At this time, the two witnesses who had testified at the preliminary hearing were subpoenaed, in addition to Louis Valsi, the owner of the Convenient Food Market, who had been bilked by defendant as a result of the phoney check, a person from the Central National Bank and two members of the Lyndhurst Police Department.

Next, the record reveals that, on October 30, 1969, defendant was ordered returned from the Ohio State Penitentiary, to which he had been sentenced from Ashtabula County, 'for further consideration,' by Judge John L. Angelotta, before whom he had pleaded guilty. Following this, on January 20, 1970, the defendant was sentenced to the Ohio State Penitentiary, the sentence to run concurrently with Ashtabula County sentences on the same kind of charges. He was returned to the penitentiary on January 29, 1970.

On March 16, 1970, defendant, in propria persona, filed a 'Motion to Suspend Further Imposition of Sentence and Return Defendant to Cuyahoga County Jail' in the Common Pleas Court. The document refers to 'shock probation' under R.C. 2901.13. The motion was overruled by Judge Angelotta on March 23, 1970.

Defendant's motion for leave to appeal and for production of any and all papers pertaining to hearings at state expense, for leave to proceed in forma pauperis and for appointment of counsel was filed in the Common Pleas Court on May 4, 1970, by defendant, in propria persona, and was dismissed by Judge Angelotta as being improperly before that court and that it should have been filed in the Court of Appeals.

Then, on June 30, 1970, defendant, in propria persona, filed in the Common Pleas Court a document, which he styled a 'Petition for Writ of Mandamus,' to require the court to give him credit for time spent in the county jail, as provided in R.C. 2967.191. The court overruled said motion.

On July 1, 1970, defendant, in propria persona, filed in the Court of Appeals a motion for delayed appeal, for the production of any and all papers pertaining to hearing at state expense, for leave to proceed in forma pauperis and for appointment of counsel. On July 24, 1970, this motion was granted, and Mr. Harry Youtt of the Public Defender's Office was appointed counsel for defendant to prosecute his appeal in the Court of Appeals. Oral argument was had, and, on March 30, 1972, the Court of Appeals, in a unanimous decision, ruled 'that the defendant's plea of guilty was not knowingly, intentionally and voluntarily made and that the defendant did not understand the nature of the charge against him and the full consequences of his entering a plea of guilty.' (29 Ohio App.2d 246, 281 N.E.2d 32.) The judgment of the trial court was reversed and the cause remanded for further proceedings according to law.

The state's motion for leave to appeal from the Court of Appeals to this court was allowed, and the cause is now before us for review.

John T. Corrigan, Prosecuting Atty., and Sumner Canary, Cleveland, for appellant.

Harry E. Youtt, Cleveland, for appellee.

CORRIGAN, Justice.

The action of the Court of Appeals in reversing the Common Pleas Court for accepting the defendant's plea of guilty can only have had its provenance in a spin-out of the benevolent, but cautionary, spirit of Douglas, J., when he opined, in Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274:

'What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought * * * and forestalls the spin-off of collateral proceedings that seek to probe murky memories.'

To keep our case in proper perspective, it should first be pointed out that the defendant there, Boykin, a Negro, had five indictments returned against him for common-law robbery, an offense punishable by death in Alabama. In a period of a fortnight, a series of armed robberies had occurred in Mobile, Alabama, and the victims in each case were local shopkeepers open at night who were forced by a gunman to hand over money. While robbing one grocery store, the assailant fired his gun once, sending a bullet through a door into the ceiling. A few days earlier, in a drugstore, the robber shot a customer in the leg. Boykin was indigent and the court appointed counsel to represent him. Three days later, at his arraignment, Boykin pleased guilty to all five indictments. So far as the record shows the judge asked no questions of Boykin and Boykin did not address the court. It is a silent record in those respects, and a reviewing court cannot presume a waiver of any constitutional rights from the record. Alabama law provides that when a defendant pleads guilty, the court must cause the punishment to be determined by a jury. Such a trial was had, Boykin did not take the stand, and the jury sentenced him to death on each of the five indictments. There was nothing to indicate that he had a prior criminal record.

Contrast that picture with the proceedings in the instant case, where, when the plea was taken, the record breathes the solicitude of the court for defendant's constitutional rights. Griffey, represented by competent trial counsel, whom he had retained, benefited by a plea bargaining process which culminated in the following colloquy between Griffey and the careful trial judge who, on September 9, 1969, accepted his plea of guilty to the one count of uttering:

'Mr. Carson (assistant prosecuting attorney): John W. Griffey, your Honor.

'If it please the court, this is case No. 92,504, State of Ohio vs. John W. Griffey.

'The defendant, your Honor, stands before this court charged under a two-count indictment for violation of Revised Code 2913.01. The defendant is present in court with his attorney, Mr. James Carnes; and it is my understanding that the defendant is desirous of withdrawing any and all not guilty pleas...