Hamilton v. Brown , 1 Ohio App. 3d 165 ( 1981 )

I concur with the result reached by my learned brother Hendrickson and the order remanding the cause for resentencing to the trial court.

However, as to assignment of error number one, I am constrained to advance the proposition that omissions such as those made by the trial court are not prejudicial per se. In attempting to interpret the Rules of Criminal Procedure and the teachings of the Ohio Supreme Court, it is my opinion that we should look to the decision in State v. Caudill (1976), 48 Ohio St. 2d 342 [2 O.O.3d 467], as a bench mark and follow the evolution of the Supreme Court's rationale in interpreting the Criminal Rules from that point forward. In Caudill scrupulous adherence to the verbatim requirements of Crim. R. 11(C)(2) was mandated. From that position evolved the more liberal concept of substantial compliance with the provisions of Crim. R. 11 as enunciated inState v. Stewart (1977), 51 Ohio St. 2d 86 [5 O.O.3d 52]. In a more recent decision involving another of the Criminal Rules, the court held, in State v. Tate (1979), 59 Ohio St. 2d 50 [13 O.O.3d 36], certiorari denied (1979), 444 U.S. 967, that:

"Where defendant in a petty offense case has a right to trial by jury and pleads not guilty and demands a jury trial in the manner provided by Crim. R. 23(A), it must appear of record that such defendant waived this right in writing in the manner provided by R.C. 2945.05, in order for the trial court to have jurisdiction to try the defendant without a jury." Id., syllabus.

In the case of State v. Strawther (1978), 56 Ohio St. 2d 298 [10 O.O.3d 420], syllabus, the court, in dealing with an equally important constitutional guarantee, i.e., the right of compulsory process, held:

"Where a trial court accepts written pleas of guilty to attempt to commit murder and aggravated robbery, which include a `waiver' of `compulsory process,' and dismisses the remaining counts of the indictments without orally advising the defendant that he has a right to compulsory process to obtain witnesses in his behalf, in the absence of prejudicial effect such omission does not constitute prejudicial error and there is substantial compliance with the provisions of Crim. R. 11. (State v. Stewart, 51 Ohio St. 2d 86 [5 O.O.3d 52], approved and followed.)" (Emphasis added.)

In the recent case of State v. Billups (1979), 57 Ohio St. 2d 31 [11 O.O.3d 150], the court further limited the impact ofCaudill, supra, and held that the trial court did not commit prejudicial error in applying Crim. R. 11(C)(2) where the defendant was represented by counsel. In that case the court conducted a discussion with the defendant apprising him of the nature of the charges, but did not orally inform him of each of his rights. In the court's opinion by Justice Herbert, the court rejected the concept of prejudice per se and its automatic application to all cases. The court looked to the record as to the defendant's literacy, the fact that he was represented by counsel and the fact that the defendant had indicated to the trial court that he understood his rights from what had previously transpired involving another defendant. Justice Herbert, in his opinion, criticized the "* * * exaltation of form over substance at a time when our criminal justice system is already laboring under immense burdens. See Chapman v.California (1967), 386 U.S. 18, 22. `In all such inquiries, "[m]atters of reality, and not mere ritual, should be controlling,"' McCarthy v. United States (1969), 394 U.S. 459,468, at footnote 20." (Footnote omitted.) State v. Billups,supra, at page 39. Thus, the court found no prejudicial error. As Justice Holmes said in his separate concurring opinion in State v. Tate, supra (59 Ohio St. 2d), at page 55:

"However, under the facts as presented within this case, and other similar circumstances where a definite waiver is shown by the knowing acts of the party, the law should reasonably allow a waiver to be effected in petty criminal cases. * * *"

I would therefore hold on the facts in the case sub judice that the appellant has failed to demonstrate that she was prejudiced in any way by the trial court's omission of the formalities required by Crim. R. 5 and 10. Therefore, there can be no denial of due process.

By reason of the above language I do not, however, intend to encourage, on the part of the trial courts in this jurisdiction, the failure to substantially comply with the Rules of Criminal Procedure. To do so would lead, inevitably, to an erosion of the precepts of the rules, which would ultimately require a more rigid enforcement by the reviewing courts. However, as my brother Hendrickson has pointed out, substantial justice was done by the trial court in the case at bar and the appellant has failed to demonstrate prejudicial error. I would therefore affirm.