State v. Nero, 89-1675

• Decision Date: 19 December 1990
• Docket Number: No. 89-1675,89-1675
• Citation: 56 Ohio St.3d 106,564 N.E.2d 474
• Parties: The STATE of Ohio, Appellant, v. NERO, Appellee.
• Court: Ohio Supreme Court

Page 106

56 Ohio St.3d 106

564 N.E.2d 474

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

No. 89-1675.

Supreme Court of Ohio.

Submitted Oct. 23, 1990.

Decided Dec. 19, 1990.

Syllabus by the Court

Where the circumstances indicate that the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim.R. 11(C)(2)(a), the trial court's acceptance of the defendant's guilty plea to the nonprobationable crime of rape without personally advising the defendant that he was not eligible for probation constitutes substantial compliance with Crim.R. 11. (State v. Stewart [1977], 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163, followed.)

In 1978, the Cuyahoga County Grand Jury indicted defendant-appellee, Eugene Nero, for aggravated burglary, robbery, four counts of rape, attempted aggravated burglary, possession of criminal tools, and grand theft. On January 3, 1979, Nero appeared before the trial judge in the Cuyahoga County Court of Common Pleas and pled guilty to aggravated burglary, rape, and attempted aggravated burglary. In exchange for his guilty plea, the prosecutor agreed to drop the remaining charges. During the plea-taking hearing, the trial judge advised Nero of the constitutional rights he was waiving by entering a guilty plea, informed Nero of the nature of the crimes with which he was charged, the possible maximum and minimum penalties, and that he could be sentenced to serve the terms concurrently or consecutively.

The trial judge, however, did not comply with Crim.R. 11(C)(2) by informing Nero that he was ineligible for probation because the crime of rape, to which he was pleading guilty, was nonprobationable. See R.C. 2951.02(F)(4).

The judge accepted Nero's guilty plea, and proceeded with sentencing without obtaining a presentence investigation from the probation department. The court sentenced Nero to five to twenty-five years for aggravated burglary, five to twenty-five years for rape, and five to fifteen years for attempted aggravated burglary, the sentences to run concurrently.

Ten years later, in 1988, Nero sought and was granted a delayed appeal by the court of appeals. The appellate court reversed and remanded, holding that the trial court had erred when it accepted Nero's plea of guilty to rape without informing him that the crime was nonprobationable, as required by Crim.R. 11(C)(2)(a).

The cause comes before us on a motion for leave to appeal.

John T. Corrigan, Pros. Atty., and George J. Sadd, Cleveland, for appellant.

Michael E. Murman, Lakewood, for appellee.

HERBERT R. BROWN, Justice.

This case presents the issue of whether the trial judge substantially complied with Crim.R. 11(C)(2)(a) when he accepted a guilty plea for the nonprobationable crime of rape without informing the defendant that he was not eligible for probation. For the reasons which follow, we hold that there was substantial compliance and reverse the decision of the court of appeals.

Ohio Crim.R. 11(C) was adopted in order to facilitate a more accurate determination of the voluntariness of a defendant's plea by ensuring an adequate record for review. State v. Stone (1975), 43 Ohio St.2d 163, 167-168, 72 O.O.2d 91, 94, 331 N.E.2d 411, 414; State v. Stewart (1977), 51 Ohio St.2d 86, 92-93, 5 O.O.3d 52, 56, 364 N.E.2d 1163, 1167; State v. Scott (1974), 40 Ohio App.2d 139, 144, 69 O.O.2d 152, 155, 318 N.E.2d 416, 420. 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. The United States Supreme Court held in Boykin v. Alabama (1969), 395 U.S. 238, 242-243, 89 S.Ct. 1709, 1711-1712, 23 L.Ed.2d 274, that in order for a reviewing court to determine whether a guilty plea was voluntary, the United States Constitution requires the record to show that the defendant voluntarily and knowingly waived his constitutional rights. The court specified these rights as (1) the Fifth Amendment privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. Id. at 243, 89 S.Ct. at 1712.

In addition to the constitutional duty to inform, Crim.R. 11(C) requires the trial judge to tell the defendant certain other matters before accepting a guilty plea. State v. Johnson (1988), 40 Ohio St.3d 130, 132-133, 532 N.E.2d 1295, 1297-1298, certiorari denied (1989), 489 U.S. 1098, 109 S.Ct. 1574, 103 L.Ed.2d 940. Specifically, Crim.R. 11(C)(2) requires:

"(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."

While the record in the instant case indicates that the trial judge did inform Nero of the constitutional rights he was waiving by pleading guilty, it is undisputed that the judge did not inform Nero, as Crim.R. 11(C)(2)(a) requires, that Nero was ineligible for probation. Literal compliance with Crim.R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. Stewart, supra.

Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving....