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State v. Thompson

Court of Appeals of Ohio, Eleventh District, Portage

December 31, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOHN C. THOMPSON, Defendant-Appellant.

          Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2016 CR 00294 and 2016 CR 00900.

         Judgment: Reversed and remanded.

          Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).

          Dennis Day Lager, (For Defendant-Appellant).

          OPINION

          CYNTHIA WESTCOTT RICE, J.

         {¶1} 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 remand.

         {¶2} 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).

         {¶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:

         {¶4} "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)."

         {¶5} 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:

         {¶6} [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 ¶29.

         {¶7} 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 voluntarily.

         {¶8} At the plea hearing, the trial court made the following advisements to appellant:

         {¶9} 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?

         {¶10} 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.

         {¶11} In Ralston, this court concluded:

         {¶12} 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 ...


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