State v. Higgs, 96-T-5450

• Decision Date: 01 October 1997
• Docket Number: No. 96-T-5450,96-T-5450
• Citation: 704 N.E.2d 308,123 Ohio App.3d 400
• Parties: The STATE of Ohio, Appellee, v. HIGGS, Appellant.
• Court: Ohio Court of Appeals

Page 400

123 Ohio App.3d 400

704 N.E.2d 308

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

No. 96-T-5450.

Court of Appeals of Ohio Eleventh District, Trumbull County.

Decided Oct. 1, 1997.

Dennis Watkins, Trumbull County Prosecuting Attorney, for appellee.

Michael A. Partlow, for appellant.

FORD, Presiding Judge.

Appellant, Kevin B. Higgs, brings this delayed appeal from a judgment of the Trumbull County Court of Common Pleas finding him guilty upon acceptance of his guilty plea to a charge of robbery, R.C. 2911.02, with a firearm specification, R.C. 2941.141.

Appellant was indicted on August 6, 1993, on a charge of aggravated robbery, R.C. 2911.01(A)(1), with a firearm specification, R.C. 2941.141. On November 17, 1993, appellant pleaded guilty to robbery, R.C. 2911.02, with a firearm specification. The trial court then sentenced appellant to the Lorain Correctional Institution at Grafton, Ohio, for an indeterminate period of four to fifteen years, plus three years of actual incarceration on the firearm specification, to be served consecutively to the principal sentence. Appellant filed a motion for leave to file a delayed appeal with this court on June 6, 1996, which this court granted on July 3, 1996. Appellant now asserts the following as error: ¹

1 "The trial court erred, to the prejudice of [appellant], by accepting a guilty plea to robbery which was not given knowingly and voluntarily."

2 "The trial court erred, to the prejudice of [appellant], by accepting a guilty plea pursuant to a firearms specification, which was not given knowingly and voluntarily."

Appellant asserts three arguments in support of the proposition that his plea to the robbery charge was not given knowingly and voluntarily. First, appellant argues that he did not understand the nature of the charges against him. Second, he claims that the trial court never instructed him that the state would need to prove his guilt beyond a reasonable doubt. Third, he claims that the trial court incorrectly informed him of the maximum penalty involved.

Generally, a guilty plea waives all errors that may have occurred before the plea, unless the plea is not given knowingly and voluntarily. State v. Kelley (1991), 57 Ohio St.3d 127, 130, 566 N.E.2d 658, 660-661; State v. Barnett (1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101, 1104. Crim.R. 11(C)(2) provides the procedure for ensuring that a guilty plea is made knowingly and voluntarily, and states:

"(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 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 federal constitutional rights guaranteed by Crim.R. 11(C)(2) are (1) "the privilege against * * * self-incrimination," (2) "the right to trial by jury," and (3) the "right to confront one's accusers." Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279; State v. Nero (1990), 56 Ohio St.3d 106, 107, 564 N.E.2d 474, 475-476. The Supreme Court of Ohio has held that "Crim.R. 11(C)(2) requires the trial judge to personally inform the defendant of the constitutional guarantees he waives by entering a guilty plea." (Emphasis added.) Id. at 107, 564 N.E.2d at 476. Concerning these constitutional rights, strict compliance with Crim.R. 11(C) is mandatory before it can be determined that a plea was given knowingly. State v. Grundy (Jan. 25, 1991), Trumbull App. No. 89-T-4251, unreported, at 7, 1991 WL 6017. However, the trial court need only substantially comply with the nonconstitutional requirements of Crim.R. 11(C)(2). State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 56, 364 N.E.2d 1163, 1167. See, also, State v. Billups (1979), 57 Ohio St.2d 31, 11 O.O.3d 150, 385 N.E.2d 1308, syllabus. In order to satisfy the requirement of substantial compliance, an appellate court must view the totality of the circumstances and determine whether appellant has suffered prejudice. State v. Flint (1986), 36 Ohio App.3d 4, 9, 520 N.E.2d 580, 584-585.

In support of his assertion that he did not understand the charges against him, appellant claims that the trial court did not adequately explain the elements of robbery when appellant asserted that he did not understand them. At appellant's plea hearing, the following colloquy occurred between appellant and the trial court:

"[THE COURT]: Do you know you have the right to have a jury of twelve people sitting over there hear this case and in order for you to be convicted they would have to find as to the principal offense and as to the specification that you did in attempting or committing a theft offense or in fleeing immediately after that attempt or offense use or threaten the immediate use of force against another in this county and that in the commission of robbery you did have a firearm on or about your person; do you understand that?

"[APPELLANT]: No. I didn't understand what you said.

"[THE COURT]: In order for you to be convicted if we had a trial here, twelve people would unanimously have to find you guilty of each and every element of the crime of robbery and of the specification that you had a firearm when you committed it. I have to be sure you are waiving the right to a jury trial. Are you?

"[APPELLANT]: Yes, sir."

In State v. Swift (1993), 86 Ohio App.3d 407, 621 N.E.2d 513, this court faced a similar situation in which the defendant, in pleading guilty to a rape charge, expressed some confusion concerning the meaning of "force." The trial court attempted to clarify the misunderstanding. Nonetheless, we stated:

"The courts of this state have generally held that a detailed recitation of the elements of the charge is not required under Crim.R. 11(C)(2)(a). * * * The court's determination that the defendant understands the charge can be based on the surrounding circumstances, such as recitations of discussions between the defendant and his attorney.

" * * *

"In the instant case, the trial court did go on to explain what 'force' was to the defendant and how his actions were sufficient to satisfy the requirement. Unfortunately, the record does not reflect if the appellant then understood and agreed. * * * [T]his was not sufficient to show that the defendant was then aware of what 'force' was. Although not one of the cases says this directly, it would appear that the burden upon the trial court becomes greater once there is an indication that the defendant is confused." (Emphasis added.) Id. at 412-413, 621 N.E.2d at 516-517.

Thus, since the record did not reflect that the defendant in Swift understood the meaning of force, we concluded that the defendant had not made a knowing plea. Id. at 413, 621 N.E.2d at 517.

In the present case, after appellant expressed confusion regarding the elements of robbery, the court restated the question in a different form, omitting the portion detailing the elements of robbery. Instead, the court simply asked whether appellant was waiving his right to a jury trial, and appellant responded affirmatively. However, it appears that appellant's confusion regarding the elements of the offense was never resolved. Therefore, appellant's guilty plea to the robbery charge was not made voluntarily; thus, that portion of appellant's first assignment is well taken.

Appellant's argument is further strengthened by the fact that he pleaded guilty to robbery when appellant was indicted on aggravated robbery. R.C. 2911.01(A)(1) states that "[n]o person, in attempting or committing a theft offense * * * shall * * * have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control." ² R.C. 2911.02 states that robbery occurs when a person, in attempting or committing a theft offense, uses or threatens the immediate use of force against another. Robbery is not a lesser included offense of aggravated robbery when a defendant is charged under R.C. 2911.01(A)(1) since force is not an element under that subsection of this statute. State v. Merriweather (1980), 64 Ohio St.2d 57, 59, 18 O.O.3d 259, 260-261, 413 N.E.2d 790, 791.

In State v. Mancini (Jan. 7, 1993), Cuyahoga App. No. 63892, unreported, 1993 WL 4721, at 1, the court held:

"[T]he acceptance of a guilty plea violates due process where three conditions are met: (1) the defendant pleads to an offense which is not a lesser included offense of the charged crime; (2) there is a failure to explain the additional elements of the offense to which the defendant will plead; and (3) under the facts of the indictment, the defendant could not have committed nor been convicted of the offense." See, also, [State v.] Fletchinger [51 Ohio App.2d 73, 5 O.O.3d 186, 366 N.E.2d 300]; State v. Adams (Oct. 31, 1985), Cuyahoga App. No. 49682, unreported, 1985 WL 8523.

In the case sub judice, all three requirements are present. First, appellant pleaded guilty to robbery, which is not a lesser included offense of aggravated robbery, R.C. 2911.01(A)(1). Merriweather. Second, the plea colloquy demonstrates that appellant did not comprehend the force element involved in robbery, which is not required for an aggravated robbery charge under R.C. 2911.01(A)(1). Third, the...