State v. Venes

[Cite as State v. Venes, 2012-Ohio-81.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96780
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM VENES
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-546427
BEFORE: Rocco, J., Jones, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: January 12, 2012
-i-
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ATTORNEY FOR APPELLANT
R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jesse W. Canonico
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant William Venes appeals from his convictions after he
entered guilty pleas to 111 counts of pandering sexually-oriented matter involving a
minor and one count of possession of criminal tools.
{¶ 2} Venes presents one assignment of error. He asserts his pleas were invalid
because the trial court failed to inform him of one of the constitutional rights he was
waiving in entering his pleas.
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{¶ 3} Since the state concedes Venes’s assertion, and since the record reflects it is
accurate, Venes’s assignment of error is sustained. His convictions are reversed, and this
case is remanded for further proceedings.
{¶ 4} Venes was indicted in this case on January 24, 2011. The indictment
charged him with 111 counts of pandering sexually-oriented matter involving a minor,
and one count of possession of criminal tools, to wit: a computer. He pleaded not guilty
to the charges at his arraignment.
{¶ 5} Two months later, on March 24, 2011, Venes agreed to change his pleas
and enter a guilty plea to all the charges. During the colloquy, the trial court did not
mention Venes had a constitutional right to compulsory process.
{¶ 6} After Venes entered his guilty pleas, the trial court accepted them and
referred him for a presentence investigation and report. The trial court subsequently
sentenced Venes to a prison term that totaled 24 years.
{¶ 7} In this appeal from his convictions, Venes presents the following
assignment of error.
{¶ 8} “I. The trial court did not comply with Crim.R. 11 and defendant’s plea
was not knowingly, intelligently, and voluntarily made.”
{¶ 9} Venes argues the trial court’s failure to inform him during the Crim.R.
11(C) colloquy of his right to compulsory process renders his plea invalid. The state
concedes Venes’s argument. Since the record reflects the trial court did not ensure
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Venes understood all of the constitutional rights he was waiving in entering his pleas, his
convictions must be reversed.
{¶ 10} In State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶
9-14, the Ohio Supreme Court recently stated:
“‘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
(1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450. Crim.R. 11 was adopted
in 1973 to give detailed instructions to trial courts on the procedures to
follow before accepting pleas of guilty or no contest. State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶7.
“Crim.R. 11(C) requires a trial judge to determine whether that
criminal defendant is fully informed of his or her rights and understands the
consequences of his or her guilty plea. Of particular relevance to the case
at bar is Crim.R. 11(C)(2)(c), which provides:
“‘In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without
first addressing the defendant personally and doing all of the following:
“‘ * * *
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“‘Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.’
(Emphasis added.)
“This court has held that the preferred method of informing a
criminal defendant of his or her constitutional rights during the plea
colloquy is to use the language contained in Crim.R. 11(C). [Citations
omitted.] * * * .
“In Veney, we reaffirmed that strict, or literal, compliance with
Crim.R. 11(C)(2)(c) is required when advising the defendant of the
constitutional rights he is waiving by pleading guilty or no contest. Id. at
¶18. Included in the list of constitutional rights is ‘the right to compulsory
process to obtain witnesses.’ Id. at ¶19, citing Boykin v. Alabama (1969),
395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 * * * . The right to
compulsory process of witnesses is guaranteed by the Sixth Amendment to
the United States Constitution and Section 10, Article I, Ohio Constitution.
***”
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{¶ 11} The supreme court went on to comment in Barker that the “underlying
purpose, from the defendant’s perspective, of Crim.R. 11(C) is to convey to the defendant
certain information so that he can make a voluntary and intelligent decision whether to
plead guilty.” Id. ¶ 15. Thus, the trial court must “actually explain[ ] the rights to the
defendant.” Id., citing Veney at ¶ 27.
{¶ 12} It follows that when the trial court does not mention, as in this case, that by
entering his guilty pleas Venes was waiving his constitutional right to compulsory
process, the pleas are rendered invalid. State v. Woods, 192 Ohio App.3d 494,
2011-Ohio-727, 949 N.E.2d 574.
{¶ 13} Consequently, Venes’s assignment of error is sustained.
{¶ 14} Venes’s convictions are reversed, and this case is remanded for further
proceedings.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________
KENNETH A. ROCCO, JUDGE
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LARRY A. JONES, P.J., and
EILEEN A. GALLAGHER, J., CONCUR