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State v. Hamilton

December 4, 2008

STATE OF OHIO, PLAINTIFF-APPELLEE
v.
BILLY J. HAMILTON DEFENDANT-APPELLANT



CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas Court Case No. CR2007-0286.

The opinion of the court was delivered by: Delaney, J.

JUDGES: Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.

OPINION

JUDGMENT: AFFIRMED

{¶1} Appellant Billy J. Hamilton appeals his conviction and sentence in the Muskingum County Court of Common Pleas.

{¶2} On November 7, 2007, appellant was indicted by the Muskingum County grand jury on one count of receiving stolen property, including amplifiers and gift cards from St. Thomas Church, and having a value of greater than $5,000 but less than $100,000, in violation of R.C. 2913.51(A), a felony of the fourth degree.

{¶3} Appellant pled not guilty and trial was set for January 15, 2008. The day before trial, appellant withdrew his not guilty plea and entered a plea of guilty to the indictment. The State recommended that appellant be sentenced to six months in prison and pay restitution of $5,449. Sentencing was deferred upon completion of a presentence investigation. On February 15, 2008, appellant filed a motion to withdraw his guilty plea. A hearing was held on February 25, 2008 and the motion to withdraw was denied. The trial court proceeded to sentencing and imposed a 12-month prison sentence and ordered restitution of $5, 449.

{¶4} Appellant timely appealed and raises two Assignments of Error:

{¶5} "I. DEFENDANT-APPELLANT'S PLEA WAS UNKNOWING, UNINTELLIGENT AND INVOLUNTARY (JANUARY 14TH, 2008 PLEA HEARING TRANSCRIPT P. 8).

{¶6} "II. THE TRIAL COURT ERRED IN NOT ALLOWING THE DEFENDANT-APPELLANT TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING (MOTION OF DEFENDANT, MEMORANDUM CONTRA OF STATE, FEBRUARY 25TH, 2008 SENTENCING HEARING TRANSCRIPT PP. 3-9, JUDGMENT ENTRY)."

I.

{¶7} Appellant first contends his guilty plea was not knowing, intelligent and voluntary because the trial court failed to advise him at the time of the plea of his constitutional right to a unanimous jury verdict. He asserts a valid waiver of the right to a jury trial should include a full explanation of all the essential elements of the right to a jury trial, such as jury unanimity.

{¶8} Crim.R. 11(C) governs the process that a trial court must use before accepting a felony plea of guilty or no contest. In relevant part, Crim.R. 11(C)(2)(c) requires the trial court to determine that the defendant understands that by the plea the defendant is waiving certain constitutional rights listed therein.

{¶9} The Ohio Supreme Court recently held "[a] trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one's accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilty beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant's plea is invalid." State v. Veney, Slip Opinion No. 2008-Ohio-5200.

{¶10} We also have recently held there is no requirement in Crim.R. 11(C)(2) that a trial court inform a defendant of his right to a unanimous verdict. State v. Wesaw, Fairfield App. No. 08CA12, 2008-Ohio-5572; State v. Smith, Muskingum App. No. CT2007-0073, 2008-Ohio-3306.

{¶11} We have reviewed the transcript of the plea hearing held on January 14, 2008. The following Crim.R. 11(C)(2)(c) colloquy occurred:

{¶12} "THE COURT: You also understand that by pleading guilty here today, you are giving up certain constitutional rights?

{¶13} "THE DEFENDANT: Yes, Your Honor.

{ΒΆ14} "THE COURT: You understand by pleading guilty, you're giving up your right to have a jury trial, you're also giving up your right to waive that jury trial and ...


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