State v. Jones

[Cite as State v. Jones, 2021-Ohio-1864.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 20CA000020
LEO L. JONES :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Knox County
Court of Common Pleas, Case No.
20CR09-0223
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 1, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES T. MCCONVILLE TODD W. BARSTOW
Knox County Prosecutor 261 W. Johnstown Rd., Ste. 204
117 E. High Street, Ste 234 Columbus, OH 43230
Mount Vernon, OH 43050
[Cite as State v. Jones, 2021-Ohio-1864.]
Gwin, P.J.
{¶1} Appellant Leo L. Jones appeals the November 13, 2020 judgment entry of
the Knox County Court of Common Pleas. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On September 9, 2020, the Knox County Grand Jury returned an indictment
charging appellant with failure to provide change of address, in violation of R.C.
2950.05(F)(1), a felony of the third degree. Appellant is required to register as a Tier III
sex offender based upon previous sex offense convictions. Appellant registered an
address with the Knox County Sheriff on June 12, 2020, but appellant was not present
and living at that address from August 19, 2020 through September 3, 2020.
{¶3} On October 15, 2020, appellant appeared with counsel and entered a guilty
plea to the charge.
{¶4} Appellant signed a “plea of guilty” form. He stated his plea of guilty was
freely, voluntarily, knowingly, and intelligently made. Appellant also acknowledged that
he was fully informed by his attorney and the court of all the constitutional rights he was
waiving, “including my right to a jury trial * * *, my right to confront witnesses against me,
my right to have compulsory process for obtaining witnesses in my favor, and my right to
require the State of Ohio to prove my guilt beyond a reasonable doubt at a trial at which
I cannot be compelled to testify against myself.”
{¶5} Appellant also signed a “Plea Agreement Disclosure and Acknowledgment.”
He stated he understood that his “attorney could have obtained witnesses by subpoena
to testify in [his] defense at trial.”
«County» County, Case No. «CASE_NO»0 3
{¶6} At the plea hearing, appellant confirmed he was satisfied with his attorney,
and confirmed his attorney reviewed the written plea agreement with him. The trial court
went through the maximum penalty appellant faced, and appellant stated he understood.
Appellant also stated he recalled signing the plea form.
{¶7} The trial court continued, “your plea cannot be accepted unless you
understand the constitutional rights that you’re giving up.” Appellant responded “yes,” he
understood that: he has the right to a jury or the right to have the judge hear his case; he
understood the prosecutor had to prove him guilty beyond a reasonable doubt of every
element of the crime he was charged with; he understood his attorney could have cross-
examined anyone who testified against him; and he understood he would not have to
testify. The trial court stated, “And you understand that at the trial your attorney could
have obtained witnesses by subpoena to testify in your defense?” Appellant responded,
“yes.”
{¶8} The trial court asked appellant if he had any questions, and appellant stated,
“No.” Appellant confirmed he voluntarily waived and gave up all of the constitutional rights
discussed. Based upon appellant’s representations, the trial court found appellant had
“been informed of his constitutional rights, [and] ha[d] made a knowing, intelligent, and
voluntary wavier of those rights.” The trial court accepted appellant’s guilty plea and found
him guilty of the charge.
{¶9} The trial court issued a journal entry on October 16, 2020, stating it
personally addressed appellant as to the matters contained in Criminal Rule 11(C)(2),
and finding appellant’s plea was freely, voluntarily, and intelligently made. The trial court
referred the matter for a presentence investigation, and set a sentencing date.
«County» County, Case No. «CASE_NO»0 4
{¶10} The trial court sentenced appellant to twenty-four (24) months in jail. The
trial court issued a sentencing entry on November 13, 2020.
{¶11} Appellant appeals the November 13, 2020 judgment entry of the Knox
County Court of Common Pleas and assigns the following as error:
{¶12} “I. APPELLANT DID NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY ENTER HIS PLEA OF GUILTY, IN VIOLATION OF HIS RIGHT TO DUE
PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN, OF THE OHIO
CONSTITUTION.”
I.
{¶13} In his assignment of error, appellant contends his plea was not knowingly,
intelligently, and voluntarily made. Specifically, appellant argues the trial court failed to
adequately advise him that he was “waiving the right to have compulsory process for
obtaining witnesses in the defendant’s favor,” when the trial court stated, “you understand
that at the trial your attorney could have obtained witnesses by subpoena to testify in your
defense?”
{¶14} “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. Engle, 74 Ohio St.3d 525, 660 N.E.2d 450 (1996). “An
appellate court determining whether a guilty plea was entered knowingly, intelligently, and
voluntarily, conducts a de novo review of the record to ensure that the trial court complied
«County» County, Case No. «CASE_NO»0 5
with the constitutional and procedural safeguards.” State v. Ballard, 66 Ohio St.2d 473,
423 N.E.2d 115 (1981).
{¶15} Criminal Rule 11(C) requires a trial judge to determine whether a criminal
defendant is fully informed of his or her rights and understands the consequences of his
or her guilty plea. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826.
Of particular relevance to this case is Criminal Rule 11(C)(2)(c), which provides, “[i]n
felony cases the court * * * shall not accept a plea of guilty or no contest without first
addressing the defendant personally and * * * informing the defendant and determining
that the defendant understands that by the plea the defendant is waiving the rights * * *
to have compulsory process for obtaining witnesses in the defendant’s favor * * *.” The
underlying purpose of Rule 11(C) is to convey to the defendant certain information so that
he or she can make a voluntary and intelligent decision as to whether to plead guilty.
State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981).
{¶16} The Ohio Supreme Court has held that strict compliance with Rule
11(C)(2)(c) is required when advising a defendant of the constitutional rights he or she is
waiving by pleading guilty or no contest. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621; State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d
826. The Supreme Court recently addressed this issue in State v. Miller, 159 Ohio St.3d
447, 2020-Ohio-1420, 151 N.E.3d 617, and held, “trial courts must strictly comply with
11(C)(2)(c) and failure to do so cannot be deemed harmless.” Included in the list of
constitutional rights is “the right to compulsory process to obtain witnesses.” Id.{¶17} The Supreme Court of Ohio has repeatedly held that while the preferred
method of informing a criminal defendant of his or her constitutional rights during the plea
«County» County, Case No. «CASE_NO»0 6
colloquy is to use the language contained in Criminal Rule 11(C), a trial judge is not
required to recite the provision of 11(C)(2)(c) verbatim. State v. Miller, 159 Ohio St.3d
447, 2020-Ohio-1420, 151 N.E.3d 617; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621; State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d
826. To “strictly comply with the rule, the trial court must orally advise the defendant, in
a manner reasonably intelligible to that defendant, that the plea waives the rights
enumerated in the rule.” Id.{¶18} Appellant argues the trial court did not strictly comply with Rule 11(C)(2)(c)
because the trial court did not tell him he was waiving the right to have the court compel
enforcement of a subpoena. We disagree. The language used by the trial court in this
case mirrors language that has been found to strictly comply with Rule 11(C)(2)(c).
{¶19} The Supreme Court has held that a trial court complies with Criminal Rule
11(C) and it is a reasonably intelligible explanation to the defendant of his right to
compulsory process when the right is described as the “right to call witnesses to speak
on your behalf.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826.
The terms “subpoena” or “compel” were not required. Id. The Ohio Supreme Court also
recently held that the statement, “your lawyer can issue subpoenas to help you get them
[witnesses] here to testify for you,” strictly complied with Rule 11(C)(2)(c). State v. Miller,
159 Ohio St.3d 447, 2020-Ohio-1420, 151 N.E.3d 617.
{¶20} Other courts have similarly held that language stating counsel may
subpoena witnesses for the defendant was sufficient for strict compliance with Rule
11(C)(2)(c)’s compulsory process requirement. State v. Coleman, 9th Dist. Summit No.
26008, 2012-Ohio-1712 (statement that “by pleading guilty he was giving up the right to
«County» County, Case No. «CASE_NO»0 7
have his counsel subpoena and cross-examine witnesses” was sufficient); State v. Pigge,
4th Dist. Ross No. 09CA3136, 2010-Ohio-6541 (statement that guilty plea waives the
right to subpoena witnesses sufficiently advises a defendant in a reasonably intelligible
manner of his compulsory process right); State v. Ward, 2nd Dist. Montgomery No.
21044, 2006-Ohio-832 (statement that the defendant was “giving up his right to have his
own witnesses come in here and testify for him” was sufficient for strict compliance); State
v. Parks, 8th Dist. Cuyahoga No. 86312, 2006-Ohio-1352 (use of word “subpoena”
adequately informs defendant of his right to compulsory process).
{¶21} In this case, we find the trial court strictly complied with the compulsory
process portion of Rule 11(C)(2)(c) because the trial court used language understandable
and reasonably intelligible to appellant, such that he could make a voluntary and
intelligent decision whether to plead guilty knowing that the constitutional right to
compulsory process would not be exercisable if he did plead guilty.
{¶22} Further, the “plea of guilty” form and “plea disclosure” documents, both
signed by appellant, address the issue of compulsory process, and are additional
evidence that the trial court adequately advised appellant of his right to compulsory
process. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826 (when
trial court addresses all the constitutional rights in an oral colloquy, a reviewing court
should be permitted to consider additional record evidence such as a change of plea
form); State v. Coleman, 9th Dist. Summit No. 26008, 2012-Ohio-1712; State v. Pigge,
4th Dist. Ross No. 09CA3136, 2010-Ohio-6541. The “plea disclosure form” states
appellant understood his “attorney could have obtained witnesses by subpoena to testify
in [his] defense at trial.” The plea of guilty form states appellant was fully informed by his
«County» County, Case No. «CASE_NO»0 8
attorney and the court of the constitutional rights he was waiving, including his “right to
have compulsory process for obtaining witnesses in [his] favor.”
{¶23} Defendant was represented by counsel throughout the proceedings and, at
the change of plea hearing, he affirmatively responded when the trial court asked if his
counsel had gone over the plea agreement to his satisfaction and if he understood the
rights he was waiving. Nothing in the record suggests that appellant did not understand.
At no point during the plea hearing did he indicate any sort of confusion over the meaning
of any of the court’s statements or the rights he was waiving by pleading guilty. Rather,
every time the court asked him if he understood, appellant indicated he did. At the
conclusion of the plea hearing, the trial court asked appellant if he had any questions.
Appellant responded, “no.”
{¶24} We find the trial court used easily understood words conveying to appellant
that he would be waiving certain constitutional rights if he pled guilty and that exchange
resulted in appellant’s plea being voluntarily, knowingly, and intelligently made. The trial
court strictly complied with Criminal Rule 11(C)(2)(c). Appellant’s assignment of error is
overruled.
«County» County, Case No. «CASE_NO»0 9
{¶25} The November 13, 2020 judgment entry of the Knox County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Wise, Earle, J., concur
[Cite as State v. Jones, 2021-Ohio-1864.]