State v. Summers

• Decision Date: 28 October 1981
• Citation: 3 Ohio App.3d 234,444 N.E.2d 1041
• Parties: , 3 O.B.R. 265 The STATE of Ohio, Appellee, v. SUMMERS, Appellant. *
• Court: Ohio Court of Appeals

Page 234

3 Ohio App.3d 234

444 N.E.2d 1041, 3 O.B.R. 265

The STATE of Ohio, Appellee, v. SUMMERS, Appellant. ^*

Court of Appeals of Ohio, First District, Hamilton County.

Oct. 28, 1981.

Syllabus by the Court

1. A conviction will not be reversed for violation of the Due Process Clause when the defendant's written plea of no contest was entered on the trial court's journal, but it is impossible to produce a verbatim transcript of the proceeding at which the no contest plea was offered and accepted because the stenographic notes had been lost or stolen through no fault of the court, the prosecution or the defense, and where the record on appeal is supplemented pursuant to App.R. 9(E) by defendant's trial counsel and the trial judge.

2. In the absence of any demonstration whatsoever that the trial court failed to comply substantially with Crim.R. 11(C) in a manner reasonably intelligible to the defendant when it accepted his written plea and ordered it entered on the journal of the court, the presumption of regularity applies and adherence to the procedural safeguards of Crim.R. 11(C) may be presumed.

Simon L. Leis, Jr., Pros. Atty., and Leonard Kirschner, Asst. Pros. Atty., for appellee.

Steven E. Simon, Cincinnati, for appellant.

BLACK, Judge.

The question in this appeal is whether a judgment and sentence will be reversed when the defendant's written plea of no contest was entered on the trial court's record, but it is impossible to produce a transcript of the proceeding at which the no contest plea was offered and accepted because the stenographic notes had been lost or stolen through no fault of the court, the prosecution or the defense. We answer the question in the negative.

The defendant was charged in two separate indictments with breaking and entering and with aggravated burglary. After he withdrew his pleas of not guilty and entered written pleas of no contest on October 27, 1980, he was sentenced to consecutive terms of imprisonment. He then appealed both sentences, but he discovered while attempting to certify a transcript of the hearing at which his pleas were accepted, that the stenographic notes of the hearing had been lost or stolen and could not, after diligent search, be found. Subsequently, affidavits about the hearing both by defendant's trial counsel and by the trial judge were filed in this court on, respectively, June 11 and June 15, 1981. Because neither affidavit had been certified to this court as part of the record on appeal pursuant to App.R. 9, counsel have prepared and filed, at the suggestion of this court, an Agreed Stipulation As To Supplemental Record under App.R. 9(E), in order to correct the foregoing omission by expressly incorporating as part of the agreed record on appeal the affidavits of the trial judge and defense counsel. ¹

Defendant's single assignment of error in each appeal is identical to that in the other appeal and is phrased as follows:

"Appellant has been denied his due process rights to an effective appeal because of the unavailability of the transcript of the proceedings before the trial court, the inadequacies of the recollection of the trial court in trying to comply with Rule 9(C) of the Appellate Rules, and the resulting record which does not affirmatively show even substantial compliance with Criminal Rule 11(C)."

Although this somewhat diffuse assignment of error is postulated solely in terms of a Fourteenth Amendment due process deficiency, the defendant's argument makes clear that at least two grounds of error allegedly prejudicial to the defendant are asserted: first, the due process argument, and second, the failure of the record, as supplemented, to demonstrate compliance with Crim.R. 11(C).

With respect to the due process argument, the defendant cites Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, as authority for the proposition that a voluntary and intelligent waiver of constitutional rights will not be presumed from a silent record. This argument overlooks, however, the fact that the records in the instant appeals are not silent, because each contains the defendant's no contest plea in a form that expressly sets forth his understanding of the nature and effect of his plea and includes waiver of his constitutional rights. ² These written pleas further contain the following certification by defense counsel:

"I have explained to the Defendant prior to his/her signing this plea, the charge(s) in the indictment, the penalties therefore, and his/her constitutional rights in this case. I represent that in my opinion, the Defendant is competent to change his/her plea and now does so knowingly, intelligently and voluntarily."

We conclude that, with respect to the due process argument, the record does not require us to " * * * presume a waiver of these * * * important federal rights from a silent record," Boykin v. Alabama, supra, at 243, 89 S.Ct. at 1712, but demonstrates a sufficient constitutional basis for acceptance of the no contest pleas. State v. Hoyle (Apr. 13, 1977), Hamilton App. No. C-76201, unreported.

The second ground of error is that the record as supplemented fails to demonstrate compliance with Crim.R. 11(C). We conceive of this as separate from the first argument and not disposed of by our answer to the first argument, because Crim.R. 11(C) exceeds the letter of the federal law by requiring that the trial court shall first address the defendant personally to make certain determinations about the voluntariness of the plea and to inform the defendant of his statutory and constitutional rights in specific detail. So far as we are aware, the federal requirement of express voluntariness is nonspecific as to method, while the Ohio requirement is specific. It would be possible to meet the federal test without following the Ohio procedure. State v. Billups (1979), 57 Ohio St.2d 31, 37, 385 N.E.2d 1308 . The question, then, is whether the defendant can demonstrate from the record sub judice that the trial court failed to comply with the Ohio procedure. ³ We believe he cannot.

The record sub judice discloses that a written plea of no contest was signed by defendant (and his counsel) and accepted by the court but fails to contain the personal exchange between the court and the defendant at the plea hearing. The absence of a transcript of the hearing is not the fault of the court, the prosecution or the defense. Defense counsel has no recollection of the proceedings sufficient to prepare a narrative statement of the plea hearing, and he is unable to point specifically to any deficiency in the court's performance. The court has no better recollection of the event, but asserts that full compliance with the rule is its standard operating procedure. Under these circumstances, the long-established presumption in favor of regularity fills the void. As stated in In re Sublett (1959), 169 Ohio St. 19, 20, 157 N.E.2d 324, "all reasonable presumptions consistent with the record will be indulged in favor of the validity of the judgment or decision under review and of the regularity and legality of the proceeding below." See, also, Palmer v. Yarrington (1853), 1 Ohio St. 253, 261, and State v. Ray (1956), 102 Ohio App. 395, 143 N.E.2d 484 .

In Yarbrough v. Maxwell (1963), 174 Ohio St. 287, 189 N.E.2d 136 , the court denied a writ of habeas corpus to a petitioner who could not demonstrate the irregularity of the proceedings below when his plea was changed from not guilty to guilty, other than through his own unsupported, uncorroborated statements. In Coleman v. McGettrick (1965), 2 Ohio St.2d 177, 207 N.E.2d 552 , the failure of the appellate court to state on the record its reasons for denying him bail did not overcome the presumption of regularity and the petition for a writ of habeas corpus was denied.

We believe that in the absence of any demonstration whatsoever on the record that the trial court failed to comply substantially with Crim.R. 11(C) in a manner reasonably intelligible to this defendant during the hearing when it accepted his written plea and ordered it entered on the records of the court, the presumption of regularity is applicable and must prevail over the requirement of adherence to the procedural safeguards of Crim.R. 11(C). In brief, we are unwilling on the basis of the record before us to assume that the court failed to do its duty.

No error having been demonstrated, we find no merit in the assignment of error. We affirm.

Judgments affirmed.

SHANNON, J., concurs.

PALMER, J., dissents.

PALMER, Judge, dissenting.

Crim.R. 11(C)(2) provides that:

"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."

In the normal course of things, the only way compliance, or substantial compliance, with this (or any other) commandment of law or rule may be shown is through the record. See, e.g., State v. Oney (1967), 10 Ohio St.2d 186, 226 N.E.2d 114 ; State v. Pina (1975), 49 Ohio App.2d 394, 361 N.E.2d 262 ; Cleveland v. Whipkey (1972), 29 Ohio App.2d 79, 278 N.E.2d 374 ; State v. Lipker (1968), 16 Ohio App.2d 21, 241 N.E.2d 177 . See, also, ...