State v. Mikulic ( 1996 )

The sole ground for reversal is the majority's conclusion that defendant did not enter a voluntary plea because the trial court failed to inform him of an insanity defense. I respectfully dissent. The majority's opinion clearly shows no error by the trial judge despite the fact that any violation of Crim.R. 11(C) necessarily requires an error by the trial court.

It has long been accepted that Crim.R. 11 places no obligation on the trial court to inform a defendant of available defenses to a charged offense. See State v. Reynolds (1988),40 Ohio St.3d 334, 533 N.E.2d 342; State v. Railing (Oct. 20, 1994), Cuyahoga App. No. 67137, 1994 WL 581485 (collecting cases). The only obligations imposed upon the trial court are those specifically contained in Crim.R. 11(C) — as pertinent here, whether the trial court ascertained whether the accused understood the nature of the charge prior to accepting the plea. See Crim.R. 11(C)(2)(a); Reynolds, supra, 40 Ohio St.3d at 335,533 N.E.2d at 343. Neither the majority nor defendant makes any argument that the trial court failed in this respect.

Even if the majority were correct in its belief that the trial court had the obligation to inform defendant of a possible insanity defense, the plea colloquy demonstrates that defendant admitted not being insane at the time he committed the offense. In other words, the facts evident from the record would not support defendant's assertion that he was insane at the time he committed the offense. Omitted from the majority's recitation of facts is one line that places the colloquy in context:

"Q. THE COURT: * * * And except for drug using, do you feel that you are competent and sane?

"A. THE DEFENDANT: No, not when I'm on drugs.

"Q. THE COURT: No. I mean, except for drugs. When you're ondrugs, of course anybody who is on drugs or gets drunk, isreducing his ability to do the right thing. Do you understandthat? Do you have any questions about that?

"A. THE DEFENDANT: Yes.

"Q. THE COURT: Go ahead.

"A. THE DEFENDANT: No questions." (Emphasis added.)

The omitted portion of the plea colloquy shows defendant simply misunderstood the scope of an insanity plea under the circumstances. Mistakenly, he believed that his intoxication at the time of the offense constituted an affirmative defense. The trial judge disabused defendant of that notion, a result the majority has no quarrel with.

The sole support for the majority's position is its reference to portions of the transcript in which both the trial judge and defense counsel refer to a presentence investigation report detailing defendant's mental health history.

A presentence report is not routinely transmitted to this court and is not a public record. See State ex rel. MothersAgainst Drunk Drivers v. Gosser (1985), 20 Ohio St.3d 30, 32, 20 OBR 279, 281, 485 N.E.2d 706, 709, fn. 2. In fact, defendant did not submit the report to this court but merely attached copies of medical records that we must assume appeared in the report. We cannot review these materials. See State v. Ishmail (1978),54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus.

Besides not being a part of the record on appeal, defendant's medical history came to light after he entered his plea. Crim.R. 11(C)(2)(a) speaks in terms of what the trial judge must do at the time it accepts the plea. By referring to these records, the majority finds that the trial court erred, basing its decision on information that the trial court admittedly did not have at the time defendant entered his plea.

I submit that we cannot find a violation of an accused's rights in hindsight. In Ishmail, supra, the court stated, "Since a reviewing court can only reverse the judgment of a trial court if it finds error in the proceedings of such court, it follows that a reviewing court should be limited to what transpired in the trial court as reflected by the record made of the proceedings." 54 Ohio St.2d at 405-406, 8 O.O.3d at 407,377 N.E.2d at 502. Thus, the record gives no basis from which the majority could conclude the plea lacked voluntariness as a sole result of the actions of the trial judge. Because the record clearly shows no error occurring at the time of plea, the trial court did not err in any respect. I would affirm.