State v. Reynolds
| Decision Date | 22 December 2016 |
| Docket Number | No. 16 CO 0017.,16 CO 0017. |
| Citation | 2016 Ohio 8557,77 N.E.3d 366 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. Darrell G. REYNOLDS, Jr., Defendant–Appellant. |
| Court | D.C. Court of Appeals |
Robert Herron, Columbiana County Prosecutor, Ryan Weikart, Assistant Prosecutor, Lisbon, OH, for Plaintiff–Appellee.
Gregory Robey, Cleveland, OH, for Defendant–Appellant.
{¶ 1} Defendant–Appellant, Darrell G. Reynolds, Jr., appeals the trial court's judgment convicting him of two counts of drug possession and sentencing him accordingly. On appeal, Reynolds argues the trial court's plea colloquy failed to strictly comply with Crim.R. 11(C), and that trial counsel was ineffective for failing to object to the allegedly incomplete colloquy. For the following reasons, Reynolds' assignments of error are meritless and the judgment of the trial court is affirmed.
{¶ 2} A grand jury secretly indicted Reynolds on one count of drug possession (cocaine), R.C. 2925.11(A), a first-degree felony, and one count of drug possession (heroin), R.C. 2925.11(A), a fifth-degree felony. Attached to each count was a forfeiture specification for $2,184.00 in U.S. Currency, R.C. 2941.1417(A). Reynolds was arraigned, pled not guilty and counsel was appointed.
{¶ 3} Reynolds subsequently entered into a Crim.R. 11 plea agreement with the State, in which he agreed to plead guilty to the charges and specifications in the indictment. The State of Ohio agreed to recommend a three-year prison sentence on the felony-one count, and a ten-month prison sentence on the felony-five count, to be served concurrently, along with a mandatory $10,000.00 fine and a 24–month operator's license suspension.
{¶ 4} Prior to the plea hearing, Reynolds had also received a document entitled Judicial Advice to Defendant from the trial court, which explained the rights Reynolds would waive by pleading guilty. Reynolds also completed and signed a worksheet entitled Defendant's Response to the Court, in which he indicated his understanding. During the hearing, the trial court engaged in a colloquy with Reynolds about the rights he would be giving up by pleading guilty, and accepted Reynolds' pleas as knowing, voluntary and intelligent. The matter was continued for sentencing so that a pre-sentence investigation could be prepared.
{¶ 5} Following a sentencing hearing, the trial court imposed a mandatory three-year prison term on count one and a ten-month term on count two, to be served concurrently per the plea agreement, along with five years of mandatory post-release control and 24–month operator's license suspension. The trial court declined to impose a fine due to Reynolds' indigence.
{¶ 6} In his first of two assignments of error, Reynolds asserts:
The trial court failed to strictly comply with Criminal Rule 11, when it failed to fully advise Appellant of the waiver of his constitutional right of compulsory process, and his constitutional right against self incrimination.
{¶ 7} A guilty plea must be made knowingly, voluntarily and intelligently. State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 7. If it is not, it has been obtained in violation of due process and is void. State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, 2004 WL 2913257, ¶ 11, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). When determining the voluntariness of a plea, this court must consider all of the relevant circumstances surrounding it. State v. Johnson, 7th Dist. No. 07 MA 8, 2008-Ohio-1065, 2008 WL 650770, ¶ 8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
{¶ 8} The trial court must engage in a Crim.R. 11(C) colloquy with the felony defendant in order to ensure the plea is knowing, voluntary and intelligent. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25–26. During the colloquy, the trial court is to provide the defendant specific information, including constitutional and nonconstitutional rights being waived. Crim.R. 11(C)(2) ; State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355.
{¶ 9} The constitutional rights are to: a jury trial, confront one's accusers, compulsory process of witnesses, protection from self-incrimination, and the requirement that the state prove guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c) ; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 19–21. A trial court must strictly comply with these requirements. Id. at ¶ 31; State v. Ballard, 66 Ohio St.2d 473, 477, 423 N.E.2d 115 (1981). Strict compliance does not require a rote recitation but means the trial court must explain these rights to the defendant in a reasonably intelligible manner. Id. at paragraph two of the syllabus.
{¶ 10} The nonconstitutional rights are an explanation of: the effect of the defendant's plea; the nature of the charges; the maximum penalty; if applicable, advisements on post-release control and ineligibility for probation/community control sanctions; and that the trial court may immediately proceed to judgment and sentencing. Crim.R. 11(C)(2)(a) (b) ; Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621 at ¶ 10–13 -; Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, at ¶ 19–26 -. The trial court must substantially comply with these requirements. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Substantial compliance means the defendant understands the rights he is waiving and the consequences under the totality of the circumstances. Id. at 108, 564 N.E.2d 474. The defendant must additionally demonstrate prejudice: that he otherwise would not have entered the plea. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621 at ¶ 15 - citing Nero, 56 Ohio St.3d at 108, 564 N.E.2d 474.
{¶ 11} Reynolds contends the trial court failed to accurately advise him he was waiving his right to compulsory process and right against self-incrimination, both constitutional rights requiring strict compliance. Crim.R. 11(C)(2)(c) ; Veney, supra, at ¶ 19–21, 31. The trial court engaged in the following colloquy with Reynolds:
{¶ 12} The Ohio Supreme Court held that a "rote recitation" of the rights as they are listed in Crim.R. 11(C) is not required; "failure to use the exact language of the rule is not fatal to the plea." Ballard, 66 Ohio St.2d 473, 423 N.E.2d at 120. The Court continued to explain that Id. See also Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 18–19 ; State v. Tarleton, 7th Dist. No. 13 BE 17, 2014-Ohio-5820, 2014 WL 7476170, ¶ 11.
{¶ 13} Reynolds first argues that the trial court's colloquy regarding his right to compulsory process was inadequate because the court failed to tell him specifically that a bench warrant could be issued for non-appearing witnesses. In addition to Ballard, he relies on two cases, neither of which hold that a specific advisement about the use of bench warrants to compel witnesses must be included as part of the plea colloquy.
{¶ 14} In State v. Cummings, 107 Ohio St.3d 1206, 2005-Ohio-6506, 839 N.E.2d 27, the Ohio Supreme Court actually dismissed the appeal as being improvidently granted. Id. Perhaps Reynolds intended to cite to the Eighth District's opinion in Cummings, in which the court held that the trial court's advisement that the defendant had "the right to call witnesses to appear on [his] behalf[;]" and that he had "the right to confront and ask questions of witnesses[,]" failed to sufficiently inform the defendant of the right to compulsory process. State v. Cummings, 8th Dist. No. 83759, 2004-Ohio-4470, 2004 WL 1902119, ¶ 5–6. The Eighth District reasoned:
Although a trial court need not specifically tell a defendant that he has the right to "compulsory process," it must nonetheless "inform a defendant that it has the power to force, compel, subpoena, or otherwise cause a witness to appear and testify on the defendant's behalf." State v. Wilson, Cuyahoga App. No. 82770, 2004-Ohio-499 [2004 WL 229531], at ¶ 16, appeal not allowed, 102 Ohio St.3d 1484, 810 N.E.2d 968, 2004-Ohio-3069. See, also, State v. Senich, Cuyahoga App. No. 82581, 2003-Ohio-5082 , appeal not allowed, 101 Ohio St.3d 1468, 804 N.E.2d 41, 2004-Ohio-819 (recognizing that merely telling a defendant that he has the right to call witnesses implies that the defendant could present only witnesses he was able to secure through his own efforts). Because the trial court failed to strictly comply with this constitutional requirement, we vacate the guilty pleas and remand this case for further proceedings. See State v. Nero (1990), 56 Ohio St.3d 106, 564 N.E.2d 474. See, also, Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
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State v. McKeithen
...11 was satisfied where the trial court used language that differed from the "right of compulsory process." State v. Reynolds, 7th Dist. No. 16 CO 0017, 2016-Ohio-8557, 77 N.E.3d 366, ¶ 16. The Reynolds Court held that the explanation to defendant that "he 'could require witnesses favorable ......