State v. Scott, 68907

• Decision Date: 12 August 1996
• Docket Number: No. 68907,68907
• Citation: 113 Ohio App.3d 401,680 N.E.2d 1297
• Parties: The STATE of Ohio, Appellee, v. SCOTT, Appellant.
• Court: Ohio Court of Appeals

Page 401

113 Ohio App.3d 401

680 N.E.2d 1297

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

No. 68907.

Court of Appeals of Ohio Eighth District, Cuyahoga County.

Decided Aug. 12, 1996.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Norman A. Kotoch, Assistant Prosecuting Attorney, Cleveland, for appellee.

Charles H. Bragg, Berea, for appellant.

PORTER, Judge.

Defendant-appellant George E. Scott appeals his conviction in the trial court as a result of his plea of guilty to the charge of robbery (R.C. 2911.02). Defendant entered his plea as a result of a plea bargain agreement entered into by the defendant and the state of Ohio. Defendant's sole assignment of error challenges the trial court's failure to comply with Crim.R. 11(C)(2). For the reasons stated below, we affirm the decision of the trial court.

The defendant was indicted for robbery in violation of R.C. 2911.02. Included in the indictment were a prior aggravated felony specification and a violence specification. The defendant, through his attorney, entered into a plea bargain agreement with the state whereby the defendant would plead guilty to the charge of robbery in violation of R.C. 2911.02, amended by the deletion of both the prior aggravated felony specification and the violence specification. In return, the judge would sentence the defendant to three to fifteen years at the Lorain Correctional Institution, which sentence would run concurrently with the time the defendant was currently serving on another charge. On October 22, 1991, the defendant pled guilty to the charge of robbery, and the trial judge sentenced him pursuant to the agreement.

Defendant's motion for a delayed appeal was granted May 24, 1995.

Defendant raises the following sole assignment of error for our review:

"The appellant's guilty plea was not knowingly and voluntarily made since the court did not sufficiently explain to the appellant the rights he was waiving by entering his guilty plea."

When a trial court or appellate court is reviewing a plea submitted by a defendant, its focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelley (1991), 57 Ohio St.3d 127, 128, 566 N.E.2d 658, 659-660.

Crim.R. 11(C) 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 of 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 taking of a plea will be affirmed on appeal so long as the reviewing court determines that the trial court substantially complied with the requirements of Crim.R. 11. State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163. "Substantial compliance means that under the totality of the circumstances the defendant objectively understands the implications of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476. A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. Id.

The defendant challenges the lower court's compliance with Crim.R. 11 on four bases: (1) that the court never informed the defendant that by entering a guilty plea, he would be waiving his right not to be compelled to testify against himself; (2) that the court did not explain that he would be waiving his right to require the state to prove him guilty beyond a reasonable doubt; (3) that the court never explained the meaning of the indefinite sentence and defendant was thereby prejudiced to the extent that he is serving a sentence which he could not have possibly understood; and (4) that the court did not sufficiently inform defendant of the extent of his right to counsel because he was not informed that this counsel would represent him throughout the proceedings and through any trial that might take place.

Defendant argues that as a result of these failures by the trial court, he was prejudiced in this matter to the extent that he improperly entered a plea of guilty to a charge that carried a sentence of three, four, five, six, seven or eight to fifteen years without being adequately informed of the rights he was waiving. We do not agree.

A careful review of the transcript of the proceedings below shows that the arguments of the defendant are without merit.

The colloquy between the court and the defendant indicates that the court informed him that he would be giving up certain constitutional rights upon entering a plea to the amended charge:

"THE COURT: Mr. Scott, it's my duty to apprise you of your constitutional rights in connection with trial and to tell you if you do enter a plea to the amended charge, your are going to be waiving or giving up certain constitutional rights.

"You will not have a trial.

"Do you understand that, first of all?

"DEFENDANT: Yes.

" * * *

"THE COURT: You have the right to be represented by an attorney. If you are indigent, the court will assign a lawyer to represent you at no cost to you.

"Do you understand that?

"DEFENDANT: Yes.

" * * *

"THE COURT: If you went to trial with the case, you could have a jury trial to 12 people, or you can waive the jury and try the case to the court.

"During the course of the trial, you have a right not to testify. If you decided to remain silent during your trial, nobody could comment to the jury the fact you didn't take the witness stand. That is also within your constitutional rights.

"Do you understand that?

"DEFENDANT: Yes.

" * * * "THE COURT: * * * Mr. Kotoch from the prosecutor's office indicated that the State of Ohio will amend--has moved the court to delete, or remove the specification contained in the indictment, both the aggravated felony spec and the violent spec.

"This then becomes an aggravated felony of the second degree and it carries with it a potential penalty of 3, 4, 5, 6, 7, 8 years minimum, up to 15 years maximum, and a fine not to exceed $7,500.

"Do you understand that?

"DEFENDANT: Yes.

" * * *

"THE COURT: Has anybody promised you anything or threatened you with anything in order to get you to change your plea, other than I told your attorney Mr. Milano that I would sentence you, if you plead today, to 3 to 15 in LCI and it would be concurrent with the case you are currently sentenced and doing time for? Any other promises than that?

"DEFENDANT: No, your honor.

" * * *

"THE COURT: Understanding the amended indictment herein and the potential penalties I outlined for you, I ask you, first of all, are you, in fact guilty of robbery contained in the indictment, an aggravated felony?

"DEFENDANT: Yes.

"THE COURT: How do you plead to the amended indictment, guilty or not guilty?

"DEFENDANT: Guilty.

"THE COURT: Is your plea made voluntary, of your own free will and after speaking with Mr. Milano about it?

"DEFENDANT: Yes.

"THE COURT: Let the record reflect the defendant understands his rights, he knowingly, voluntarily, and intelligently waived them in connection with trial and otherwise."

From the record before us, it is evident that the court did, in fact, inform the defendant that by entering a guilty plea, he would be waiving his right to refuse to testify against himself and that he had a right to counsel. The record reflects that the defendant objectively stated that he understood the sentence which was to be imposed and which was to run concurrently with the sentence which he was currently serving on another charge.

While it is undisputed that the trial judge did not inform the defendant that the state is required to prove his guilt beyond a reasonable doubt, as Crim.R. 11(C)(2)(c) requires, the Ohio Supreme Court stated in State v. Nero, supra, that "[l]iteral 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." Id., 56 Ohio St.3d at 108, 564 N.E.2d at 476.

Substantial compliance allows the trial court to infer from the totality of the circumstances that the defendant understood the charges against him. State v. Rainey (1982), 3 Ohio App.3d 441, 442, 3 OBR 519, 521, 446 N.E.2d 188, 190. See, also, State v. Nero, 56 Ohio St.3d at 108, 564 N.E.2d at 476-477.

According to Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, a court in accepting a guilty plea must inform the defendant of certain constitutional rights. These constitutional rights are the privilege against compulsory self incrimination, the right to a jury trial, and the right to confront accusers. Id. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279-280. The Ohio Supreme Court in State v. Stewart (1977), 51 Ohio St.2d 86, 93, 5 O.O.3d 52, 56, 364 N.E.2d 1163, 1167, held that "[t]he absence of a ritualistic incantation of an admonishment which is not constitutionally guaranteed does not establish grounds for vacating the plea." Thus, while the trial court is required by Crim.R. 11(C)(2)(c) to inform the defendant of his right to have the state prove his guilt beyond a reasonable doubt, this is not required by Boykin, as is it is not a constitutional right, but a statutory...