Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeals from the Portage County Court of Common
Pleas, Case Nos. 2016 CR 00294 and 2016 CR 00900.
Reversed and remanded.
V. Vigluicci, Portage County Prosecutor, and Pamela J.
Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
Day Lager, (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
Appellant, John C. Thompson, appeals his convictions in the
Portage County Court of Common Pleas, arising from separate
prosecutions, following the entry of guilty pleas to passing
bad checks, misuse of credit cards, and theft. We reverse and
On February 9, 2017, in Case No. 2016 CR 00294, appellant
entered a written plea of guilty to one count of passing bad
checks, a felony of the fifth degree, in violation of R.C.
2913.11. On the same date, in Case No. 2016 CR 00900,
appellant entered a written plea of guilty to four counts of
theft, felonies of the fifth degree, in violation of R.C.
2913.02(A)(3); nine counts of grand theft, felonies of the
fourth degree, in violation of R.C. 2913.02(A)(3); one count
of theft from a person in a protected class, a felony of the
fourth degree, in violation of R.C. 2913.02(A)(3) and (B)(3);
one count of grand theft, a felony of the third degree, in
violation of R.C. 2913.02(A)(3) and (B)(2); and seven counts
of theft from a person in a protected class, felonies of the
third degree, in violation of R.C. 2913.02(A)(3) and (B)(3).
After accepting appellant's plea of guilty, the trial
court conducted a sentencing hearing during which it adopted
the parties' joint-sentencing recommendation, imposing
the following prison terms: In Case No. 2016 CR 00294,
appellant was sentenced to a prison term of one year for
passing bad checks. In case No. 2016 CR 00900, appellant was
sentenced to a prison term of one year for each count of
felony-five theft (four counts); 18 months for each count of
felony-four grand theft (nine counts); 18 months for
felony-four theft from a person in a protected class; 36
months for felony-three grand theft; and 36 months for
felony-three theft from a person in a protected class (seven
counts). The one-year term for passing bad checks, the
36-month term for felony-three grand theft, and two counts of
felony-three theft from a person in a protected class were
ordered to be served consecutively to one another and the
remaining terms were ordered to be served concurrently.
Appellant's aggregate prison sentence was ten years.
Additionally, the trial court ordered appellant to pay
restitution in the amount of $512, 852.51 and advised him
that he may be subject to post-release control upon his
release from prison. Appellant now appeals and assigns two
errors for our review. His first asserts:
"The trial court committed prejudicial and reversible
error by accepting defendant's guilty plea without
advising defendant of his constitutional right to a jury
trial, and that his plea constituted a waiver thereof, all as
required and mandated by Ohio Crim.R. 11(C)."
A guilty plea entered in a criminal case must be made
knowingly, intelligently, and voluntarily to be valid under
both the United States and Ohio Constitutions. Boykin v.
Alabama, 395 U.S. 238');">395 U.S. 238, 241 (1969); State v.
Engle, 74 Ohio St.3d 525, 527 (1996). Crim.R. 11
"was adopted to ensure that certain information
necessary for entering a knowing, intelligent, and voluntary
plea would be conveyed to a defendant." State v.
Gensert, 11th Dist. Trumbull, No. 2015-T-0084,
2016-Ohio-1163, ¶9. The Ohio Supreme Court has
emphasized that a trial court must strictly comply with
Crim.R. 11(C) as it relates to the waiver of constitutional
rights. State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, ¶18, citing State v. Ballard,
66 Ohio St.2d 473, 479 (1981). Failure to literally
comply with the language of Crim.R. 11(C)(2)(c) does not,
however, invalidate a plea agreement as long as the record
reveals that the trial court explained or referred to the
constitutional rights "'"in a
manner reasonably intelligible to that
defendant." '" (Emphasis sic.) State
v. Barker, 129 Ohio St.3d 472, 2011-Ohio- 4130,
¶14, quoting Veney, supra, at ¶27, quoting
Ballard, supra, at 480. Still, a trial court must
orally advise a defendant of the constitutional
rights he or she is waiving before accepting a felony plea of
guilty. Veney, supra, at syllabus. Moreover, the
Court in Veney made it clear that a court may not
rely exclusively upon outside sources to meet its Crim.R.
11(C)(2)(c) duties. The Court emphasized:
[P]ursuant to the strict-compliance standard set forth in
Ballard, the trial court must orally inform the
defendant of the rights set forth in Crim.R. 11(C)(2)(c)
during the plea colloquy for the plea to be valid. Although
the trial court may vary slightly from the literal wording of
the rule in the colloquy, the court cannot simply rely on
other sources to convey these rights to the defendant.
"We cannot presume a waiver of these * * * important
federal rights from a silent record." Boykin [v.
Alabama, 395 U.S. 238');">395 U.S. 238, ] 243 [89 S.Ct. 1709');">89 S.Ct. 1709, 23 L.Ed.2d
274 (1969)]. When the record confirms that the trial court
failed to perform this duty, the defendant's plea is
constitutionally infirm, making it presumptively invalid.
See Ballard, [supra, ] at 481 [423 N.E.2d 115];
State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415');">2004-Ohio-4415
[814 N.E.2d 51], ¶ 12. Veney, supra, at
Appellant contends the trial court erred in failing to fully
advise him, during his plea colloquy, that he was waiving his
right to a jury trial. As a result, he concludes,
his plea of guilty is invalid because the trial court did not
ensure it was entered knowingly, intelligently, and
At the plea hearing, the trial court made the following
advisements to appellant:
By entering these pleas of guilty, you're giving up your
right to a trial. At that trial the prosecutor would have to
prove beyond a reasonable doubt each and every element of the
charges against you. Your attorney could then cross-examine,
confront the witnesses who come in to testify for the State
of Ohio, you could subpoena or compel witnesses, have them
come in and testify for you and you could take the stand at
that trial if you choose to do so. You have a constitutional
right not to testify, but if you wanted to you could. That
along with those rights to trial you are giving up by
entering these pleas of guilty; do you understand?
Appellant responded in the affirmative to the trial
court's query. The trial court, however, neither advised
appellant had the right to a jury trial nor
expressly alluded that a jury would be the arbiter of his
guilt should appellant wish to exercise such a right. In
State v. Ralston, 11th Dist. Portage No.
2017-P-0095, 2018-Ohio-4946, accord State v.
Antoine, 11th Dist. Portage No. 2018-P-0009,
2019-Ohio-414, this court concluded such an omission renders
a guilty plea invalid.
In Ralston, this court concluded:
In order to satisfy constitutional due process, there must be
some actual indication the trial court orally mentioned a
jury would be involved were the matter tried. This does not
necessarily mean the reference to a jury must overtly advise
a defendant she has a right to a jury trial which she would
be waiving by pleading guilty; nevertheless, the reference or
statement must meaningfully inform a defendant of the right
in a reasonably intelligible fashion. For instance, by
indicating "neither a judge nor jury" has the right
to pass judgment on a defendant's decision not to
testify, a trial court directly implies a defendant is
entitled to have the jury adjudicate his or her case. See
Ballard, supra. Similarly, if a court states it would
"instruct the jury" that a defendant's decision
not to testify cannot be used against that defendant, it
stands to reason that the defendant has a right to have a
jury consider the merits of the charges he or she is facing.
See State v. Hayward, 6th Dist. Wood No. WD-17-010,
2017-Ohio-8611, 2017 WL 5565182. Likewise, when a court
advises a defendant that the state will have to prove all
elements of the charge(s) to the unanimous satisfaction of a
jury, it necessarily follows that the defendant would be
entitled to a jury trial if he or she elected to so proceed.
See [State v.] Young, [11th Dist. Trumbull No.
2009-T-0130, 2011-Ohio-4018] and State v. Smiddy, 2d
Dist. Clark ...