State v. Veney

Lanzinger, J.,

concurring in part and dissenting in part.

{¶ 33} I agree with the portion of the syllabus that mandates that trial courts when conducting plea colloquies must strictly comply with all parts of Crim.R. 11(C)(2)(c), including informing defendants of the right to be found guilty only upon proof beyond a reasonable doubt; I disagree with the portion of the syllabus that addresses the consequence of lack of strict compliance. I respectfully dissent from the majority’s holding that a trial court’s failure to strictly comply *184 with Crim.R. 11(C)(2)(c) requires vacation of the plea and conviction without regard to contrary evidence in the record that the plea was entered knowingly and voluntarily despite the trial court’s omission.

{¶ 34} We have held that when a trial judge fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), the guilty or no-contest plea is invalid “under a presumption that it was entered involuntarily and unknowingly.” (Emphasis added.) State v. Griggs, 103 Ohio St.3d 85 , 2004-Ohio-4415 , 814 N.E.2d 51 , ¶ 12; see also State v. Nero (1990), 56 Ohio St.3d 106, 107 , 564 N.E.2d 474 , citing Boykin v. Alabama (1969), 395 U.S. 238, 242-243 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 . This court has never held, until today, that this presumption is irrebuttable or that a plea must be vacated automatically when the trial court fails to orally explain a constitutional right.

{¶ 35} Interpreting Crim.R. 11(C)(2)(c) as an absolute rule for which imperfect compliance should lead to automatic vacation of a plea in every case, the majority cites State v. Ballard (1981), 66 Ohio St.2d 473 , 20 O.O.3d 397 , 423 N.E.2d 115 . But the majority’s reasoning seems to conflate a single missing oral advisement with the entirely “silent record” referred to Boykin. Ballard, however, did not foreclose an opportunity for the state to show that there was not a silent record with respect to Boykin rights. Just as the state is allowed to rebut the presumption that a warrantless search is unreasonable, the state should be able to rebut the presumption that a plea is involuntary and unknowing when a judge fails to mention one of the constitutional rights in Crim.R. 11(C)(2)(c).

{¶ 36} Allowing the state the chance to rebut the presumption that a defendant has been prejudiced does not confuse the standards of strict compliance and substantial compliance. The majority recognizes that under the substantial compliance standard, the burden is on the defendant to show prejudice, which means showing that the plea would otherwise not have been entered. Nero, 56 Ohio St.3d at 108 , 564 N.E.2d 474 . A requirement that the state must overcome a presumption of the plea’s invalidity when the trial court does not strictly comply with Crim.R. 11(C)(2)(c) means that the defendant need no longer show prejudice. The state simply is given an opportunity to establish through other evidence in the record that the defendant’s plea was still knowing and voluntary.

{¶ 37} Moreover, federal law does not require automatic vacation of a plea when a judge fails to inform a defendant of a Boykin right. See United States v. Vonn (2002), 535 U.S. 55 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 . Instead, the court reviews the entire record — including written pleas and statements that constitutional rights were reviewed with counsel — to determine whether the defendant understood and voluntarily made the plea. Id. at 74-75 , 122 S.Ct. 1043 , 152 L.Ed.2d 90 . We have previously adopted this rule in Ballard , acknowledging that when determining whether a defendant was adequately informed of his *185 constitutional rights under Crim.R. 11, a court must review the entire record and not just determine whether the judge recited the exact language in the rule. 66 Ohio St.2d 473 , 20 O.O.3d 397 , 423 N.E.2d 115 , paragraph two of the syllabus.

Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellant.

Yeura R. Venters, Franklin County Public Defender, and John W. Keeling, Assistant Public Defender, for appellee.

{¶ 38} To the contrary, the majority opinion now concludes that strict compliance brooks no mistakes by the trial court in its oral recitation to the defendant. In its overly formalistic view of the consequences of failure to strictly comply with Crim.R. 11(C)(2)(c), the majority rejects the idea that a trial court may have informed a defendant of his or her constitutional rights in a number of ways, including written materials that have been reviewed with counsel and signed and assented to in open court. The trial court’s overriding obligation has been to ensure that a plea is entered in a knowing and intelligent manner. State v. Engle (1996), 74 Ohio St.3d 525, 527 , 660 N.E.2d 450 . But now, the majority’s holding will invalidate convictions based upon a single omitted oral statement of the trial court, no matter whether the record would otherwise show that the defendant understood and appreciated all constitutional rights being waived.

{¶ 39} Because I disagree with these draconian consequences as applied to every case, I respectfully dissent. I would hold that the state should have an opportunity to rebut the presumption that a plea is unknowing and involuntary with evidence from the entire record.

Lundberg Stratton and Cupp, JJ., concur in the foregoing opinion.