State v. Akins , 2024 Ohio 598 ( 2024 )

[Cite as State v. Akins, 2024-Ohio-598.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29619
:
v. : Trial Court Case No. 2021 CR 03982
:
JAMES AKINS : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on February 16, 2024
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STEVEN H. ECKSTEIN, Attorney for Appellant
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
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LEWIS, J.
{¶ 1} Defendant-Appellant James Akins appeals from his conviction and sentence
for one count of gross sexual imposition of a child less than 13 years of age following a
guilty plea entered in the Montgomery County Court of Common Pleas. On appeal,
Akins contends his guilty plea was not knowing, intelligent, and voluntary, because the
trial court failed to inform him that a jury verdict must be unanimous to convict him. For
the reasons that follow, we will affirm the judgment of the trial court.
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I. Facts and Course of Proceedings
{¶ 2} On December 17, 2021, Akins was indicted by a Montgomery County grand
jury on three counts of rape of a child less than 13 years of age, first-degree felonies in
violation of R.C. 2907.02(A)(1)(b), and three counts of gross sexual imposition of a child
less than 13 years of age, third-degree felonies in violation of R.C. 2907.05(A)(4).
{¶ 3} On August 29, 2022, pursuant to a plea agreement, Akins agreed to plead
guilty to one count of gross sexual imposition of a child less than 13 years of age in
exchange for the dismissal of the other five counts in the indictment and a sentencing
recommendation of between 12 and 60 months in prison. After a plea colloquy, the trial
court accepted his guilty plea and found Akins guilty of one count of gross sexual
imposition of a child less than 13 years of age. The trial court sentenced Akins to 42
months in prison.
{¶ 4} Akins filed a timely notice of appeal from the trial court’s judgment. Akins
was appointed appellate counsel, who filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he could find no non-frivolous
issues for appeal and seeking leave to withdraw. We rejected appellate counsel’s
Anders brief and appointed new counsel to act as Atkins’s advocate on appeal. We
directed new counsel to supplement the record, review the record, and raise any issues
that counsel found have arguable merit. The record has been supplemented, briefing
has concluded, and the matter is ripe for our review.
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II. The Trial Court Strictly Complied with Crim.R. 11(C)(2)(c)
{¶ 5} Akins’s sole assignment of error states:
THE TRIAL COURT ERRED IN FINDING DEFENDANT-
APPELLANT’S GUILTY PLEA WAS ENTERED KNOWINGLY,
INTELLIGENTLY, OR VOLUNTARILY AS THE TRIAL COURT DID NOT
COMPLY WITH CRIM.R. 11(C)(2)(c) WHEN IT FAILED TO INFORM HIM
THAT A JURY TRIAL MUST RESULT IN A UNANIMOUS VERDICT OF
GUILTY BEFORE THE TRIAL COURT MAY FIND HIM GUILTY IN
VIOLATION OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL
UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
{¶ 6} During the August 29, 2022 plea hearing, the trial court informed Akins that,
by entering his guilty plea, he was waiving various constitutional rights, including the right
to a jury trial. Plea Hearing Tr. 10. The trial court did not inform Akins that any jury
verdict would need to be unanimous in order to convict him.
{¶ 7} Akins contends that “the trial court erred in finding he understood the federal
constitutional rights he was waiving as it failed to inform him of the constitutional
requirement of a unanimous jury verdict of guilty before he may be convicted.”
Appellant’s Brief, p. 3. According to Akins, the United States Constitution’s guarantee of
a unanimous jury trial verdict in order to convict a criminal defendant of a serious offense
was not extended to cover state jury trials until 2020. Id. at 4, citing Ramos v. Louisiana,
590 U.S. __, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020). Once it was so extended, Akins
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argues the trial court was required to inform Akins during his plea colloquy that any jury
verdict would need to be unanimous in order to convict him.
{¶ 8} The State responds that the trial court strictly complied with Crim.R.
11(C)(2)(c) by informing Akins “in a ‘reasonably intelligible manner,’ of all the enumerated
constitutional rights he was waiving by entering a guilty plea.” Appellee’s Brief, p. 3.
According to the State, the Ohio Supreme Court and several appellate districts have “held
that Crim.R. 11(C)(2)(c) does not require a defendant to be informed of the unanimity
requirement in jury trials.” Id. at 4.
{¶ 9} “ ‘When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
We conduct a de novo review of the record to ensure that the trial court complied with the
constitutional and procedural safeguards State v. Leonhart, 4th Dist. Washington No.
13CA38, 2014-Ohio-5601, ¶ 36.
{¶ 10} With respect to the nonconstitutional aspects of Crim.R. 11(C), including an
understanding of the nature of the charges and the maximum penalty involved, the trial
court must substantially comply with the rule. Veney at ¶ 14. With respect to the
constitutional requirements of Crim.R. 11(C)(2)(c), however, trial courts must strictly
comply with the requirements of the rule. Id. at ¶ 18. In conducting a plea colloquy, the
trial court's failure to inform a defendant of any right in that subsection invalidates the
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plea. Id. at ¶ 29. Relevant to the appeal before us is subsection (c), which provides
that the trial court must inform the defendant and determine that the defendant
understands that, by pleading guilty, he is waiving a number of rights, including the right
to a jury trial.
{¶ 11} As both parties acknowledge, we, along with several other appellate
districts and the Ohio Supreme Court, have previously addressed whether Crim.R.
11(C)(2)(c) requires the trial court to inform a defendant of the fact that a verdict must be
unanimous to convict him. We previously explained that “several courts, including the
Ohio Supreme Court have held there is no requirement that a trial court inform a
defendant of his right to a unanimous verdict.” State v. Crowder, 2d Dist. Montgomery
No. 23184, 2009-Ohio-6389, ¶ 7, quoting State v. Wesaw, 5th Dist. Fairfield No. 08CA12,
2008-Ohio-5572, ¶ 29. See also State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283,
855 N.E.2d 58, ¶ 68.
{¶ 12} Although the law is well-settled in Ohio that Crim.R. 11(C)(2)(c) does not
require a trial court to inform a defendant during his plea colloquy of his right to a
unanimous jury verdict, Akins contends that we should revisit this issue given the United
States Supreme Court’s decision in Ramos v. Louisiana, 590 U.S. __, 140 S.Ct. 1390,
206 L.Ed.2d 583 (2020). A similar argument was recently made in the Eighth and Fifth
Appellate Districts. Both Districts rejected the argument. As the Eighth District
explained in State v. Scott, 8th Dist. Cuyahoga No. 109852, 2021-Ohio-2676, ¶ 15-18:
In Ramos, the Supreme Court held that the Sixth Amendment right
to a jury trial, as incorporated against the states by way of the Fourteenth
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Amendment, required a unanimous verdict to convict a defendant of a
serious offense. * * *
The Ramos decision, however, did not alter the constitutional
requirements on judges in Ohio. The Supreme Court's decision only
impacts Louisiana and Oregon, the two states that have continued to
convict criminal defendants with nonunanimous jury verdicts. Ramos at
1391.
Ohio has long recognized that a nonunanimous jury verdict is
unconstitutional and void. Work v. State, 2 Ohio St. 296, 296 (1853). * * *
The Ramos decision explicitly recognized Ohio's long history of
requiring unanimity, noting that the Ohio Supreme Court in Work referred to
unanimity as “one of ‘the essential and distinguishing features of the trial by
jury.’ ” Ramos at 1423, quoting Work. Further, this right is explicitly
protected in Crim.R. 31(A) and implicitly protected in the Ohio Constitution.
Thus, the Ramos decision did not recognize a new constitutional right for
criminal defendants in Ohio like [defendant]. Further, neither Crim.R.
11(C) nor Ramos impose an obligation on courts to inform a defendant
about the exact contours of a jury trial.
{¶ 13} We agree with the reasoning expressed by the Eighth District in Scott. The
trial court was not required to inform Akins of the fact that a jury verdict would need to be
unanimous to convict him. Therefore, we cannot conclude on this record before us that
Akins’s guilty plea was less than knowing, intelligent, and voluntary.
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{¶ 14} The sole assignment of error is overruled.
III. Conclusion
{¶ 15} Having overruled the sole assignment of error, we will affirm the judgment
of the trial court.
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EPLEY, P.J., and TUCKER, J., concur.