State v. Summers

The question in this appeal is whether a judgment and sentence will be reversed when the defendant's written plea of no contest was entered on the trial court's record, but it is impossible to produce a transcript of the proceeding at which the no contest plea was offered and accepted because the stenographic notes had been lost or stolen through no fault of the court, the prosecution or the defense. We answer the question in the negative.

The defendant was charged in two separate indictments with breaking and entering and with aggravated burglary. After he withdrew his pleas of not guilty and entered written pleas of no contest on October 27, 1980, he was sentenced to consecutive terms of imprisonment. He then appealed both sentences, but he discovered while attempting to certify a transcript of the hearing at which his pleas were accepted, that the stenographic notes of the hearing had been lost or stolen and could not, after diligent search, be found. Subsequently, affidavits about the hearing both by defendant's trial counsel and by the trial judge were filed in this court on, respectively, June 11 and June 15, 1981. Because neither affidavit had been certified to this court as part of the record on appeal pursuant to App. R. 9, counsel have prepared and filed, at the suggestion of this court, an Agreed Stipulation As To Supplemental Record under App. R. 9(E), in order to correct the foregoing omission by expressly incorporating as part of the agreed record on appeal the affidavits of the trial judge and defense counsel.¹

Defendant's single assignment of error in each appeal is identical to that in the other appeal and is phrased as follows:

"Appellant has been denied his due process rights to an effective appeal because of the unavailability of the transcript of the proceedings before the trial court, the inadequacies of the recollection of the trial court in trying to comply with Rule 9(C) of the Appellate Rules, and the resulting record which does not affirmatively show even substantial compliance with Criminal Rule 11(C)."

Although this somewhat diffuse assignment of error is postulated solely in terms of a Fourteenth Amendment due process deficiency, the defendant's argument makes clear that at least two grounds of error allegedly prejudicial to the defendant are asserted: first, the due process argument, and second, the failure of the record, as supplemented, to demonstrate compliance with Crim. R. 11(C).

With respect to the due process argument, the defendant citesBoykin v. Alabama (1969), 395 U.S. 238, as authority for the proposition that a voluntary and intelligent waiver of constitutional rights will not be presumed from a silent record. This argument overlooks, however, the fact that the records in the instant appeals are not silent, because each contains the defendant's no contest plea in a form that expressly sets forth his understanding of the nature and effect of his plea and includes waiver of his constitutional rights.² These written pleas further contain the following certification by defense counsel:

"I have explained to the Defendant prior to his/her signing this plea, the charge(s) in the indictment, the penalties therefore, and his/her constitutional rights in this case. I represent that in my opinion, the Defendant is competent to change his/her plea and now does so knowingly, intelligently and voluntarily."

We conclude that, with respect to the due process argument, the record does not require us to "* * * presume a waiver of these * * * important federal rights from a silent record," Boykin v.Alabama, supra, at 243, but demonstrates a sufficient constitutional basis for acceptance of the no contest pleas.State v. Hoyle (Apr. 13, 1977), Hamilton App. No. C-76201, unreported.

The second ground of error is that the record as supplemented fails to demonstrate compliance with Crim. R. 11(C). We conceive of this as separate from the first argument and not disposed of by our answer to the first argument, because Crim. R. 11(C) exceeds the letter of the federal law by requiring that the trial court shall first address the defendant personally to make certain determinations about the voluntariness of the plea and to inform the defendant of his statutory and constitutional rights in specific detail. So far as we are aware, the federal requirement of express voluntariness is nonspecific as to method, while the Ohio requirement is specific. It would be possible to meet the federal test without following the Ohio procedure.State v. Billups (1979), 57 Ohio St. 2d 31, 37 [11 O.O.3d 150]. The question, then, is whether the defendant can demonstrate from the record sub judice that the trial court failed to comply with the Ohio procedure.³ We believe he cannot.

The record sub judice discloses that a written plea of no contest was signed by defendant (and his counsel) and accepted by the court but fails to contain the personal exchange between the court and the defendant at the plea hearing. The absence of a transcript of the hearing is not the fault of the court, the prosecution or the defense. Defense counsel has no recollection of the proceedings sufficient to prepare a narrative statement of the plea hearing, and he is unable to point specifically to any deficiency in the court's performance. The court has no better recollection of the event, but asserts that full compliance with the rule is its standard operating procedure. Under these circumstances, the long-established presumption in favor of regularity fills the void. As stated in In re Sublett (1959),169 Ohio St. 19, 20, "all reasonable presumptions consistent with the record will be indulged in favor of the validity of the judgment or decision under review and of the regularity and legality of the proceeding below." See, also, Palmer v. Yarrington (1853),1 Ohio St. 253, 261, and State v. Ray (1956), 102 Ohio App. 395 [2 O.O.2d 415].

In Yarbrough v. Maxwell (1963), 174 Ohio St. 287 [22 O.O.2d 341], the court denied a writ of habeas corpus to a petitioner who could not demonstrate the irregularity of the proceedings below when his plea was changed from not guilty to guilty, other than through his own unsupported, uncorroborated statements. InColeman v. McGettrick (1965), 2 Ohio St. 2d 177 [31 O.O.2d 326], the failure of the appellate court to state on the record its reasons for denying him bail did not overcome the presumption of regularity and the petition for a writ of habeas corpus was denied.

We believe that in the absence of any demonstration whatsoever on the record that the trial court failed to comply substantially with Crim. R. 11(C) in a manner reasonably intelligible to this defendant during the hearing when it accepted his written plea and ordered it entered on the records of the court, the presumption of regularity is applicable and must prevail over the requirement of adherence to the procedural safeguards of Crim. R. 11(C). In brief, we are unwilling on the basis of the record before us to assume that the court failed to do its duty.

No error having been demonstrated, we find no merit in the assignment of error. We affirm.

Judgments affirmed.

SHANNON, J., concurs.

PALMER, J., dissents.

¹ The affidavit of Hollis A. Moore, defendant's trial counsel, recites, in relevant part, "After reviewing my file, and considering the information in that file as it relates to October 27, 1980, and the proceedings as they particularly relate to Ohio Criminal Rule 11, I am without sufficient information to prepare a statement pursuant to either Rule 9(C) or 9(D) of the Appellate Rules of Procedure."

The affidavit of the trial judge states, in relevant part, "I have no present recollection of Mr. Kenneth Summers' appearance before this court on October 27, 1980," but adds that "In allcases involving a no contest plea I proceed through a written outline wherein the following information is obtained from any defendant and/or counsel * * *." (Emphasis added.) Then follows a detailed series of inquiries and instructions complying with the information to be given and consent secured as specified by Crim. R. 11(C). It is quite clear — and, indeed, is not challenged by the defendant — that such proceedings would constitute a scrupulous compliance with Crim. R. 11(C) and with all applicable constitutional strictures.

² The actual wording of the entries, following a recital of the charge, minimum and maximum terms, and maximum fine is as follows:

"I understand the nature of the charge(s) to which I plead NO CONTEST, and whether or not I will be eligible for probation. I have been informed and understand the following: that my plea of NO CONTEST is an admission of the truth of the facts alleged in the Indictment but not an admission of my guilt to said charge(s); that upon acceptance of the plea the judge may proceed with judgment and sentence; that I am waiving my constitutional rights to jury trial, to confront witnesses against me, to have compulsory process for obtaining witnesses in my favor, and to require the state to prove my guilt beyond a reasonable doubt at a trial at which I cannot be compelled to testify against myself.

"I have not been forced or threatened in any way to cause me to sign and offer this plea. I offer this plea knowingly, intelligently and voluntarily. I have consulted with my attorney and have his/her advice and counsel. I am satisfied with the legal representation and advice I have received from my attorney.

"/s/ Kenneth E. Summers"

³ What is meant by compliance with Crim. R. 11(C) has had an eventful history. Under State v. Caudill (1976), 48 Ohio St. 2d 342 [2 O.O.3d 467], adherence to the provisions of the Rule had to be scrupulous. Under the later cases of State v. Stewart (1978), 56 86 [5 O.O.3d 52]; State v. Strawther (1978), 56 Ohio St. 2d 298 [10 O.O.3d 420]; and State v. Billups, supra, the plea was properly accepted if adherence to the rule was substantial and no prejudice could be demonstrated. Failure to use the exact language of the rule is not grounds for vacating a plea so long as the record shows that the court's explanation was in a manner reasonably intelligible to the particular defendant. State v.Ballard (1981), 66 Ohio St. 2d 473 [20 O.O.3d 397]; State v.Chellew (Oct. 7, 1981), Hamilton App. No. C-800732, unreported.

We note that despite the later modifications of the rule ofState v. Caudill, supra, the third paragraph of its syllabus remains unchanged and provides that the requirements of Crim. R. 11(C)(2) are not satisfied by a written statement of the defendant or representations of his counsel.