State v. Scott

• Decision Date: 01 May 1974
• Citation: 40 Ohio App.2d 139,318 N.E.2d 416
• Parties: , 69 O.O.2d 152 The STATE of Ohio, Appellee, v. SCOTT, Appellant.
• Court: Ohio Court of Appeals

Page 139

40 Ohio App.2d 139

318 N.E.2d 416, 69 O.O.2d 152

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

Court of Appeals of Ohio, Third District, Allen County.

May 1, 1974.

Syllabus by the Court

1. Rule 11(C)(2) of the Ohio Rules of Criminal Procedure was adopted pursuant to the supervisory power of the Supreme Court of Ohio over the trial courts of Ohio to establish procedural safeguards designed to facilitate a more accurate determination of the voluntariness of a defendant's plea of guilty in a felony case.

2. Noncompliance by a trial court with the provisions of the rule by failing to personally address the defendant and inform him of a constitutional right set forth therein and to determine his understanding of the effect of his plea of guilty on such constitutional right makes it impossible for a trial court to determine that, in the light of his constitutional rights, his plea of guilty has been voluntarily made; and such noncompliance constitutes prejudicial error requiring a reversal of the conviction and sentence to permit the defendant to plead anew.

3. Similar noncompliance as to the requirement of that rule that the defendant be informed, if applicable, that he will not be eligible for probation, is also prejudicially erroneous.

Lawrence S. Huffman, Pros. Atty., and Gary R. Hermon, Lima, for appellee.

Thomas R. Kuhn, Lima, for appellant.

GUERNSEY, Presiding Judge.

This appeal is from a judgment of conviction and sentence in the Common Pleas Court of Allen County, the only assignment of error being that the appellant 'was denied fundamental due process of law at the time his plea of guilty was accepted, in that the trial court failed to make a full determination in regard to Defendant-Appellant's understanding of the consequences of such plea of guilty' and that 'without such determination the voluntariness of such pleas is in question.'

The following is the pertinent colloquy which occurred with respect to the plea:

'The Court: * * * Is the Court to understand now, Mr. McLane (counsel for defendant), that the defendant wishes to change his plea of not guilty as previously entered herein.

'* * *.

'Mr. McLane: At this time, we would move the Court for leave to withdraw the prior plea of not guilty as to count one of the Indictment, and Mr. Scott wants to tender at this time, having been informed of his rights to a trial by jury, his rights to confront his accusers and remain silent and allied rights, and of course affirming that it was his free and voluntary act and nothing has been promised or any threats been made to him, would tender a plea of guilty as charged to count one of the Indictment.

'The Court: All right. Now then, Mr. Scott, the rule still applies that two wrongs don't make one right and we don't want to take advantage of you. You have certain rights and I want to make sure that you understand this. How old are you?

'Mr. Scott: Twenty-two.

'The Court: * * * How far did you go in school?

'Mr. Scott: Ninth grade.

'* * *.

'The Court: * * * Mr. McLane has stated what you are waiving. Do you have any question as to any rights about having a jury or any other Constitutional rights? Do you have any question about this?

'Mr. Scott: No.

'The Court: That you have a right to a trial by jury if you don't want to plead guilty. You do have a right to have a regular lawsuit and all the things that I have mentioned. And you are voluntarily waiving the right to a jury trial and entering a plea of guilty as to count one, is this correct?

'Mr. Scott: Yes.

'* * *.

'The Court: Let's look at count one here. * * * on or about the 22nd of June of this year, at the county of Allen while armed with a pistol, of stealing from Verna Bible-in other words it is armed robbery. You understand that?

'Mr. Scott: Yes.

'The Court: And that offense, under the present law, is ten to twenty-five years. Do you understand that?

'Mr. Scott: Yes.

'* * *. (Here the court inquired as to the facts which gave rise to the charge.)

'The Court: Any questions from the defendant himself? You are entitled to speak up if you want, otherwise you can remain silent. Do you wish to say anything or not?

'Mr. Scott: No, I don't.

'The Court: You understand? You went to the ninth grade, but you understand what is going on?

'Mr. Scott: Yea, I do.

'The Court: You are intelligent enough to read and write and been there and bakc, so to speak?

'Mr. Scott: (No answer.)

'The Court: Let the record show that the Court, under the circumstances, is now accepting the plea of guilty as to count one of the Indictment. Now, Mr. Pedlow, are you ready to proceed with counts two and three?

Mr. Pedlow (assistant prosecuting attorney): Yes. As the Court was informed, all this arose out of the same transaction and we feel with the plea of guilty as to count one, that counts two and three should be nolled; that justice has been served.

'The Court: Any objection to the entering of a nolle or nolle prosequi as to counts two and three of the Indictment?

'Mr. McLane: No objection from the Defense, Your Honor.

'The Court: All right. Let the record show that the Court has accepted the motion of the State to enter a writ of nolle prosequi as to counts two and three of the Indictment. It is granted by the Court. Now then, proceeding to the matter of sentencing. * * *

'* * *.'

On September 25, 1973, the date of the foregoing proceedings, Ohio Criminal Rule of Procedure 11(C)(2) was in force and effect and prescribed:

'(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.'

At the time of the alleged offense and at the time of the foregoing proceedings R.C. 2901.13 defining the offense further prescribed that '(W) hoever violates this section is guilty of armed robbery, and shall be imprisoned not less than ten nor more than twenty-five years, and he shall not have the benefit of probation.' (Emphasis added.)

Without respect to whether the court could determine from the quoted colloquy the state of defendant's mind and thus the voluntariness of his action in pleading guilty, it appears that the court (1) did not examine him as to his understanding that he would not be eligible for probation, (2) did not inform him and determine his understanding that by his plea he was waiving his right to confront witnesses against him, (3) did not inform him and determine his understanding that by his plea he was waiving his right to have compulsory process for obtaining witnesses in his favor, and (4) did not inform him and determine his understanding that by his plea he was waiving his right 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.

In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, the United States Supreme Court was considering the failure of a federal district court to conform to that part of Rule 11 of the Federal Rules of Criminal Procedure prescribing that the court 'shall not accept the plea (of...