City of Garfield Heights v. Brewer

Existing Criminal and Traffic Rules require that I concur in the result reached by the majority. However, I feel constrained to make some observations arising from the conclusion reached. Despite the heavy volume of cases in traffic courts, the judges are required, in accepting pleas of guilty or no contest, to use the same meticulous care required in more serious offenses. The net effect of the judgment entered in this case, for all practical purposes, could limit the use of written waivers in traffic courts to those cases involving no possible incarceration.

This decision stands for the proposition that a traffic court judge may not impose a jail sentence when the accused at the time of sentencing or later challenges the use of his written waiver. Although one acknowledges that he was fully advised as to all his constitutional and substantial rights, unless the verbatim record is made in court by the prosecution and the court to reflect that the accused knowingly, voluntarily and intelligently signed, specifically waiving each right, the written waiver is of no significance. Mere acknowledgment that he signed the form is not sufficient to establish a voluntary and intelligent waiver of his rights. Further, on review the appellate court cannot indulge in any presumption of regularity as to the traffic court proceedings. In other words, before a jail sentence may be imposed in a traffic case the prosecution must be able to affirmatively demonstrate by way of a trial transcript that the written waiver was made in strict compliance with the Criminal Rules.

The written waiver has come into wide use in crowded traffic courts, certainly not to deny an accused his substantial rights but in a sincere attempt to expedite the proceedings before judges forced to rule on scores and even hundreds of traffic violations per day. Explicit "on the record" waiver of a defendant's constitutional rights is required before the acceptance of a plea of not guilty or no contest. However, strict compliance with the details of Crim. R. 11(E), Crim. R. 44(B) and (C), Crim. R. 22 and Traf. R. 8(D) and 10(D) and the making of an explicit verbatim record of the waiver process could require many additional judges in order to handle the volume in a reasonably prompt manner.

The question arises as to whether or not the trial judge must personally examine each defendant and record the dialogue before accepting a guilty or no contest plea to a traffic offense whether incarceration is to follow or not. The Supreme Court of California, with Judge Tobriner writing, has held that explicit "on the record" waiver of defendant's constitutional rights is required for acceptance of a guilty plea to a misdemeanor charge, but that the procedure required for felony prosecutions need not be duplicated and variations can be adopted, so long as a defendant's fundamental constitutional rights are respected. SeeMills v. Municipal Court (1973), 10 Cal.3d 288, 303, 110 Cal. Rptr. 329, 515 P.2d 273, where Judge Tobriner wrote:

"* * * in evaluating the procedures utilized in inferior courts for advising defendants of their rights and obtaining ``on the record' waivers, the realities of the typical municipal and justice court environment cannot be ignored, and that, so long as the spirit of the constitutional principles are [sic] respected, ``the convenience of the parties and the court should be given considerable weight.'"

In my opinion, the decision reached in the instant case should not be read as a final determination that the strict requirements of the Ohio Criminal Rules for accepting pleas of guilty or no contest apply equally to all felonies and traffic misdemeanors. In dealing with traffic offenses, I believe that a written waiver properly acknowledged by an accused on the record in open court can serve a useful purpose. The result can be a more efficient court operation and an expeditious handling of the majority of citizens hauled into traffic court. The proper authorities should examine the situation and hopefully develop a procedure balancing the fundamental constitutional rights of traffic offenders and recognizing the municipal court traffic environment. I am convinced that a procedure can be worked out affording adequate protection of constitutional interests and at the same time improving the administration of traffic courts.

Appendix KENNETH R. STRALKA, JUDGE ANDREW P. SLIVKA, JUDGE GARFIELD HEIGHTS MUNICIPAL COURT 5555 Turney Road Garfield Heights, Ohio 44125 CASE NO(S). __________ STATEMENT OF RIGHTS AND WAIVER OF COUNSEL

I hereby state that I have been informed by the Court of:

1. The nature of the charge against me; and possible penalty, if found guilty, or if I enter a plea of guilty or no contest;

2. My right to bail;

3. The identity of the complainant(s):

4. My right to retain counsel even if I intend to plead guilty and of my right to a reasonable continuance to secure counsel;

5. My right to have counsel assigned to me without cost if I am unable to employ counsel even though I intend to plead guilty and of my right to a reasonable continuance;

6. The fact that a plea of guilty is a complete admission of the truth of the facts alledged [sic] in the complaint;

7. The fact that a plea of no contest is not an admission of my guilty [sic] as charged, but is an admission of the truth of the facts alledged [sic] in the complaint and that such plea cannot be used against me in any future civil or criminal proceedings;

8. The fact that a plea of not guilty is a complete denial of the facts alledged [sic] in the complaint and will require a trial thereon;

9. My right to trial by jury and the need of making a written demand for a jury trial at least ten (10) days before trial or within three (3) days after receiving notice of my trial; my right to confront and cross-examine my accusers and witnesses who testify against me; my right to compulsory process (subpoena) witnesses in my favor; my right to remain silent and my right that the prosecutor must prove my guilt beyond a reasonable doubt at a trial, at which trial I cannot be compelled to testify against myself;

10. THAT BY A PLEA OF GUILTY OR NO CONTEST I WAIVE THESE RIGHTS STATED ABOVE AND THAT THE COURT SHALL IMPOSE ITS SENTENCE ACCORDING TO LAW WITHOUT UNNECESSARY DELAY.

I state that I have received a copy of the complaint and with knowledge of any rights aforesaid I hereby knowingly, voluntarily, and intelligently enter a plea of

(A) GUILTY

(B) NO CONTEST

(C) NOT GUILTY

I waive counsel herein.

DATE __________ __________ DEFENDANT __________ WITNESS