State v. Bolin , 128 Ohio App. 3d 58 ( 1998 )

I concur with the majority's opinion on appellant's first, second, and fourth assigned errors. However, I must respectfully dissent from the opinion of the majority on appellant's third assigned error, wherein the majority found that the trial court met the requirements of Crim.R. 11(C)(3) and R.C. 2945.06 when it accepted appellant's plea of guilty to the indictment for aggravated murder without examining witnesses prior to making its determination that he was guilty of aggravated murder and not the lesser but included offense of murder.

Our Supreme Court has clearly stated that "[w]hen a defendant pleads guilty to aggravated murder in a capital case, a three-judge panel is required to examine witnesses and to hear any other evidence properly presented by the prosecution in order to make a Crim.R. 11 determination as to the guilt of the defendant." (Emphasis added.) State v. Green (1998), 81 Ohio St. 3d 100,689 N.E.2d 556, at the syllabus. Despite this mandate, the majority today finds that because, at the plea hearing, counsel for the appellant stated that "there is a factual basis for the plea," then appellant is bound by this "stipulation of fact" and the trial court met its responsibilities pursuant to the rule. I do not agree.

The majority relies on State v. Post (1987), 32 Ohio St. 3d 380,513 N.E.2d 754, and State v. Shakoor (Dec. 13, 1996), Trumbull App. No. 93-T-4917, unreported, 1996 WL 788413, appeal dismissed (1997), 78 Ohio St. 3d 1464, 678 N.E.2d 221, for the proposition that stipulations of fact made by the defendant's counsel are binding and enforceable and may be presented in lieu of witnesses or other evidence. I find that the cases relied upon by the majority are distinguishable from the matter sub judice and, consequently, that such reliance upon them is misplaced.

In Post, the defendant was charged with aggravated murder, he entered a plea of "no contest," and the court, after receiving a statement of facts proffered by the state, found him guilty. On appeal, Post argued that Crim.R. 11(C)(3) required the court to conduct an evidentiary hearing at which the state must prove the existence of the aggravating circumstances beyond a reasonable doubt. The court of appeals concluded that Crim.R. 11(C)(3)(c) when read in pari materia with R.C. 2945.06 requires the three-judge panel upon acceptance of a no contest plea to the charge of aggravated murder to hear evidence in deciding whether the accused is guilty of aggravated murder beyond a reasonable doubt. However, the court went on to find that based upon the record before it (a certificate of defense counsel signed in Post's presence and read in open court), Post was bound by the agreed-upon procedure wherein the state would proffer a statement of facts in lieu of witnesses or other evidence.

In State v. Shakoor, supra, defendant was charged with aggravated murder and entered into a plea agreement. On appeal,Shakoor contended that the trial court failed to determine whether the offense was aggravated murder or murder because the court failed to take evidence. The court of appeals in reliance on State v. Muenick (1985), 26 Ohio App. 3d 3, 26 OBR 171,498 N.E.2d 171, determined that a tribunal is not required to take testimony after a guilty plea is accepted to a charge of aggravated murder, but is only required to determine whether the offense constituted aggravated murder or a lesser offense. TheShakoor court determined that where the trial court had before it a psychiatric report and statement regarding appellant's previous criminal record, the age of appellant, the facts as recited by the prosecutor, and the parties' stipulation that the mitigating factors outweighed the aggravating circumstances, it properly determined the finding that the offense was aggravated murder.

However, unlike the circumstance of Post, in the matter before us, the record does not reveal that defense counsel agreed or stipulated to any facts. Further, the record "does "not demonstrate that the prosecutor "presented any statement of facts to the court to which defense counsel could have stipulated. Consequently, where there is no agreement or stipulation to a statement of facts before us, I find the majority's reliance on the reasoning of the Post court to be misplaced. Moreover, in light of the Supreme Court's recent holding in State v. Green, supra, I do not see the holding of State v. Muenick, supra, to be the standard to be applied to determine compliance with the Crim.R. 11 mandate. Therefore, I find the majority's reliance onState v. Shakoor, supra, to be misplaced.

Accordingly, because the trial court failed to examine witnesses in order to make a Crim.R. 11 determination as to the guilt of appellant after his plea of guilty to aggravated murder, I would find appellant's third assignment of error well taken.