State v. Johnson

[Cite as State v. Johnson, 2016-Ohio-7945.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, : No. 15AP-1021
(C.P.C. No. 14CR-2390)
Plaintiff-Appellee, :
No. 15AP-1022
v. : (C.P.C. No. 13CR-6559)
Raymond M. Johnson, : No. 15AP-1023
(C.P.C. No. 14CR-1258)
Defendant-Appellant. :
(REGULAR CALENDAR)
:
D E C I S I O N
Rendered on November 29, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
Walton, for appellee. Argued: Michael P. Walton.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant. Argued: George M. Schumann.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} In this appeal from his criminal sentence, defendant-appellant,
Raymond M. Johnson, argues that his guilty pleas were not knowing, intelligent and
voluntary because the trial court failed to advise him of his right to confront witnesses, as
required by Crim.R. 11(C)(2)(c). Because the rule requires strict compliance, Johnson's
pleas were invalid. We therefore vacate the guilty pleas, reverse the judgments of
conviction, and remand this case to the trial court.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} In three separate indictments, Johnson was charged with committing the
following offenses: two counts of murder with firearm specifications under R.C. 2903.02;
two counts of improperly discharging a firearm under R.C. 2923.161; eight counts of
felonious assault with firearm specifications under R.C. 2903.11; having a weapon while
Nos. 15AP-1021, 15AP-1022 & 15AP-1023 2
under disability under R.C. 2923.13; permitting drug abuse under R.C. 2925.13; and
failure to appear on recognizance, in violation of R.C. 2937.99. (Dec. 13, 2013 Indictment;
Mar. 12, 2014 Indictment; May 6, 2014 Indictment.)
{¶ 3} On the morning of Johnson's scheduled trial, October 5, 2015, a plea
agreement was reached. (Oct. 5, 2014 Tr. at 2.) Johnson pled guilty to one of the murder
counts, having a weapon while under disability, permitting drug abuse, and failure to
appear, and the state dismissed all other charges against him. (Tr. at 9, 13, 20-22.)
{¶ 4} During the plea colloquy, the trial court advised Johnson that by pleading
guilty, he was giving up: the right to a jury trial; his right to have the state prove beyond a
reasonable doubt that he was guilty of all offenses for which he had been charged; the
right to not be compelled to testify; the right to have individual charges, such as the
firearm specification, tried before the bench instead of a jury; the right to compulsory
process; and the right to appeal any trial errors. (Tr. at 17-19.) After advising Johnson of
these rights, the trial court accepted his guilty pleas and imposed sentence. (Tr. at 20, 26,
29-30.)
{¶ 5} Johnson now appeals, asserting the following assignment of error:
The trial court erred by entering judgments of conviction
based upon guilty pleas that were not knowing, intelligent,
and voluntary.
II. ANALYSIS
{¶ 6} Crim.R. 11(C)(2)(c) states that a court "shall not accept a plea of guilty or no
contest without first addressing the defendant personally and * * * [i]nforming 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."
{¶ 7} A trial court has a duty to strictly comply with Crim.R. 11(C)(2)(c) before
accepting a guilty plea, as the provision ensures the knowing and intelligent waiver of a
defendant's constitutional rights. State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200.
"When a trial court fails to strictly comply with this duty, the defendant's plea is invalid."
Id. at syllabus.
Nos. 15AP-1021, 15AP-1022 & 15AP-1023 3
{¶ 8} Johnson argues that the trial court failed to advise him of his right to
confront witnesses at trial, and that his plea was therefore invalid under Veney. After
reviewing the transcript of the plea colloquy, we agree. The trial court advised him of all
the constitutional rights required by Crim.R. 11(C)(2)(c) except the Confrontation Clause
right before accepting the guilty pleas. (Tr. at 16-22.) Under Veney, Johnson's guilty pleas
were invalid.
{¶ 9} The state appears to concede that the trial court failed to inform Johnson of
his Confrontation Clause right, as Crim.R. 11(C)(2)(c) requires. (Appellee's Brief at 1.)
However, the state argues that it was harmless error under Crim.R. 52(a), and that
Johnson's failure to object requires application of the plain error standard of review under
Crim.R. 52(b). (Appellee's Brief at 2-12.) The state argues that Veney "stands on extremely
weak footing" since the Supreme Court of Ohio decided State v. Barker, 129 Ohio St. 3d
472, 2011-Ohio-4130, because Barker "favorably cited" a U.S. Supreme Court case, United
States v. Vonn, 535 U.S. 55, 59 (2002), that requires a defendant to demonstrate harmless
error under the federal counterpart to Crim.R. 52 if a trial court fails to expressly inform
the defendant of the constitutional rights being waived during a plea colloquy. (Appellee's
Brief at 5.)
{¶ 10} We do not read Barker as a repudiation of Veney or the standard it requires
of the trial court when accepting a guilty plea under CrimR. 11. In Barker, the Supreme
Court of Ohio merely held that Veney's "strict, or literal compliance" standard had been
satisfied when the trial court referred to a defendant's "right to call witnesses to speak on
your behalf" without invoking the express language of Crim.R. 11(C)(2)(c). Barker at
paragraph one of the syllabus. This holding is completely harmonious with Veney, which
stated that its previous case law had "recognized that a trial court can still convey the
requisite information on constitutional rights to the defendant even when the court does
not provide a word-for-word recitation of the criminal rule, so long as the trial court
actually explains the rights to the defendant." Veney at ¶ 27, citing State v. Ballard, 66
Ohio St. 2d 473 (1981).
{¶ 11} The Barker court only cited Vonn once, and did so when stating the
following:
Thus, when a trial court addresses all the constitutional rights
in the oral colloquy, a reviewing court should be permitted to
Nos. 15AP-1021, 15AP-1022 & 15AP-1023 4
consider additional record evidence to reconcile any alleged
ambiguity in it. We further note that this interpretation
comports with federal law, which does not require automatic
vacation of a plea when a judge fails to inform a defendant of a
Boykin right. Boykin, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d
274. See United States v. Vonn (2002), 535 U.S. 55, 59, 122
S. Ct. 1043, 152 L. Ed. 2d 90.
Barker at ¶ 24.
{¶ 12} This fleeting reference to Vonn provides no support for the state's argument
that, after Barker, a plain error standard applies to review of guilty pleas under
Crim.R. 11(C)(2)(c).
{¶ 13} Here, in contrast to Barker, the trial court did not "address[] all the
constitutional rights in the oral colloquy," as it failed to even mention the defendant's
Confrontation Clause right. Barker would only apply in this case if the trial court had
informed Johnson of his Confrontation Clause right in a manner that did not conform to
the exact language of Crim.R. 11(C)(2)(c), but nevertheless communicated its meaning to
the defendant. This did not occur during Johnson's plea colloquy, as the trial court was
silent altogether regarding his Confrontation Clause right.
{¶ 14} Because the trial court omitted any mention of Johnson's Confrontation
Clause rights as required by Crim.R. 11(C)(2)(c) during the plea colloquy, it failed to
strictly comply with the rule. Veney at ¶ 30 (Where it was "undisputed that the trial court
plainly failed to orally inform [the defendant] of his constitutional right to require the
state to prove his guilt beyond a reasonable doubt," such "failure to strictly comply with
Crim.R. 11(C)(2)(c) renders [the defendant's] plea invalid."). Under Veney, Johnson's
guilty pleas are invalid. Accordingly, we vacate the guilty pleas, reverse the convictions,
and remand this case to the trial court.
Guilty pleas vacated; judgment
reversed and cause remanded.
TYACK and KLATT, JJ., concur.
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