Opposition Brief — Hills v. Freels

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QUESTION PRESENTED

WHETHER PREJUDICE IS TO BE PRESUMED UNDER

STRICKLAND v. WASHINGTON, 446 U.S. 668 (1984),

AND UNITED STATES v. CRONIC, 466 U.S. 648

(1984), STANDARDS FOR INEFFECTIVE ASSISTANCE OF

COUNSEL WHEN APPELLATE COUNSEL CONCLUDES THE

APPEAL LACKS MERIT BUT FAILS TO COMPLY WITH THE

PROCEDURES REQUIRED BY ANDERS v. CALIFORNIA, 386

U.S. 738 (1967).

TABLE OF CONTENTS

Page

QUESTION PRESENTED 6 2c cccccccncccectcscsciccvesasiesectossnes i

TABLE OF AUTHORITIES cc cccccscccdscsdavecerssbocccesesevecenes Lik

STATEMENT OF THE CASE. cc ccccccccccccceesscecscescscccescccoeel

PRELIMINARY STATEMENT 2.2 cccccccsccccccccccscccccccccccscccssen

The Issue Presented By This Case Is

Presently Before The Court In Penson v.

Ohio, Case No. 87-6116.

REASONS FOR DENYING THE PETITION. .ccccccccccccccccccevcccceee 2

1. The Court Below Correctly Decided That

Prejudice Must’~ Be Presumed When

Appellate Counsel Fails To

Substantially Comply With The Anders

v. California, 386 U.S. 738 (1967),

Procedures. .

2. Respondent Freels Was Prejudiced By

His Appellate Counsel's Failure To

Raise On Appeal The Trial Court's

Noncompliance With Ohio Criminal Rule

PE(C USS 6G) 0

CONCLUSION 2 cc cccccccccccccccccecccccce secre esecceseccccocces D

CERTIFICATE OF SERVICE. cece cccerccccvncccecscces

eccesccccese J

RO ks Va ee ee a eee ae ae ae OE ee RAS 2 EKA ERED EEE ROR

District Court Order (November 26, 1986) .cccccccccesceccese Am]

S 2903.11, Ohio Revised CHOC chbs cb cea twecce enone ne eeeenens Ae

State v. Hall (January 27, 1981), Montgomery App.

NO. 6770, UNTEPOTCEM .cccccccnccecscscccsscccscscccscccsces AMG

State v. Misch (June 27, 1984), Hamilton App.

No. C830848, UNrePOrted..ceseeseeceesseesveevvseescceressAlb

or SE hes

TABLE OF AUTHORITIES

CASES: Page

An@ers +. Calit€tornaia,. 586 U.S: 136 CISE TP ccccdavevcicsvins 2052465

City of Garfield Heights v. Brewer (1984),

17 Ohio App. 3d BZlGecccccccccseccecscescesseceseesececesecse t

Douglas v. California, 372 U.S. 353 (1963) .ccccccccccceseseee 3

Entsminger v. Iowa, 386 U.S. 748 (1967) .cccccccccccsccccscccece 4

Evitts v. Lucey, 469 U.S. 387 (1985) .cccccccccccccevecscvces 396

Henderson v. Morgan, 426 U.S. 637 (1976) .ccccccccccccccccvcee &

McCoy v. Court of Appeals of Wisconsin, District I,

U.S. » 100 Le. Ed. 26 440 (1988) cccccccccceseccccess 4,5

Pennsylvania v. Finley, 481 U.S. P

S5 EL. Bds 26 SSS CSO A sy obec ks04 hese eh s tees ee cede es ntcene S

Penson v. Ohio, No. 87-6116, cert. granted,

U.S. , 98 L. Ed. 2d 977 (February 22, 1988)..

State v. Billups (1979), 57 Ohio Sts. 2d BSlasccccccccscccsececec I

State vw. Carter (1970), 60 GRio St. 20 Bbvcaciectvecsiscasecvece §

State v. Hall (January 27, 1981), Montgomery App.

NO. 6770, UNFEPOLtEd. cccceccccccccecsccceccccscccsesesessee G

State v. Bawk (1977), 55 Ohio App. 2d 23leccccccccccccccvcses I

State v. Misch (June 27, 1984), Hamilton App.

NO. C830848, UNTEPOTted. ccccccccccccccscssocscesccceccsccces I

State v. Wilson (1978), 55 Ohio App. 24 Gheccccceccccesevsece a

Strickland v. Washington, 466 U.S. 668 1984)..

Swenson ¥. Boelesr, 366 U.S. 258 CLSST accccecnciceveseosesecsver 3

United States v. Cronic, 466 U.S. 648 (1984)..

STATUTE:

Chio Revised Code § 2903S cl be ccccciecacececctiecetcccssencccacce §

RULE:

Ghio Crimihal Rule TECC C2) (alia ck ceew sank oe haben tune censicce asm

= ifi =

No. 88-336

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

NORM F. HILLS, SUPT.,

Petitioner,

ALBERT HUSTON FREELS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, Albert Huston Freels, respectfully requests

that this Court deny the petition for writ of certiorari, seeking

review of the Sixth Circuit's opinion in this case. That opinion

is reported at 843 F. 2d 958 (6th Cir. 1988).

STATEMENT OF THE CASE

Respondent Freels (hereafter Freels) accepts petitioner's

Statement of the Case subject to the following correction and

addition. Petitioner states with respect to Freels' no contest

plea hearing that the state trial judge asked Freels "if he

understood the charge of felonious assault.” Petition for

Certiorari (hereafter Pet. for Cert.) 4. That is inaccurate.

The court asked Freels if he understood that he had been indicted

on the charge of felonious assault. [Trial Transcript (hereafter

Tr.) 2). In addition, the circuit court below found that the

trial court “failed specifically to discuss the elements of

felonious assault with [Freels] as required by ... [Ohio

Criminal] Rule [11(C)(2)(a)]." Pet for Cert. A-8.

PRELIMINARY STATEMENT

The Issue Presented By This Case Is Presently

Before The Court In Penson v. Ohio, Case No.

87-6116.

This Court granted certioravi in Penson v. Ohio, No. 87-

6116, on February 22, 1988. _.—-U.S. _ , 98 Le Ed. 2d 977

(1988). One of the issues before the Court in Penson is

whether prejudice must be shown when counsel improperly withdraws

from an appeal without filing a brief, after concluding the

appeal is without merit. Thus, to the extent the issue presented

herein is decided by this Court in Penson, a grant of certiorari

for plenary review in this case is unnecessary to its resolution.

The decision to grant or deny certiorari in this case should

therefore be consistent with this Court's decision in Penson. In

the event that the Court does not adjudicate the issue presented

by this case, Freels submits this Court should deny certiorari

for the following reasons.

REASONS FOR DENYING THE PETITION

1. The Court Below Correctly Decided That

Prejudice Must Be Presumed When

Appellate Counsel Fails To Substantially

Cemply With The Anders v. California,

386 U.S. 738 (1967), Procedures.

The Sixth Circuit's decision that prejudice is to be

presumed when counsel fails to comply with the Anders v.

California, 386 U.S. 738 (1967), procedures is consistent with

the precedents of this Court. Strickland v. Washington, 466 U.S.

668, 692 (1984), and United States v. Cronic, 466 U.S. 648, 656-

57, 659 (1984), expressly recognize that prejudice is to be

The Penson case was orally argued on October 12, 1988, and is

currently awaiting decision by this Court.

presumed when counsel is either denied or fails to meaningfully

participate in the adversary process as an advocate. "[These]

circumstances are so likely to prejudice the accused that the

cost of litigating their effect in a particular case is

unjustified." Strickland, 466 U.S. at 692; Cronic, 466 U.S. at

659. That, of course, is what petitioner asks this Court to do

in this case.

Petitioner does not contest the fact that Freels' counsel

did not participate in the appellate adversary process as an

advocate. As the Sixth Circuit recognized,

As close as counsel's brief comes to advocacy

is the unsupported representation that “upon

careful review of the docket and transcript,

[he] concludes that the trial court committed

no error prejudicial to the defendant." In

short, we are wholly unable to find that

court-appointed counsel for Freels did more

than or indeed even as much as was done by

court-appointed counsel in Anders.

Pet. for Cert. A-14. For all practical purposes, Freels was

effectively without counsel on appeal. Under Strickland and

Cronic principles, prejudice is presumed.

Moreover, this Court has consistently required a new appeal

without a showing of prejudice when the right to counsel has been

denied, Douglas v. California, 372 U.S. 353 (1963), Swenson v.

Bosler, 386 U.S. 258 (1967), or appellate counsel has failed to

provide adequate or effective legal assistance, Anders, 386 U.S.

at 738, Evitts v. Lucey, 469 U.S. 387 (1985). This is because

the right to counsel is one of the “minimum safeguards” necessary

to assure an adequate and effective appeal for indigent

defendants. Evitts, 469 U.S. at 392.

Petitioner correctly recognizes that this Court in Evitts

did not set specific standards for evaluating claims of

ineffective assistance of appellate counsel. However, as the

circuit court pointed out, this Court did indicate that appellate

counsel

"..emust be available to assist in preparing

and submitting a brief to the appellate

court...and must play the role of an active

advocate, rather than a mere friend of the

court assisting in a detached evaluation of

the appellant's claim. See Anders v.

California, 386 U.S. 738 (1967); see also

Entsminger v. Iowa, 386 U.S. 748 (1967)."

Id. at 393-94. Counsel's failure to meet these minimum

requirements essentially waives the defendant's opportunity to

make a case on the merits and is the equivalent of having no

counsel. Id. at n. 6. Contrary to petitioner's assertion, see

Pet. for Cert. 11, the Evitts Court, id. at 396-97, did recognize

that Anders sets the minimum constitutional requirements for

effective assistance on appeal:

A first appeal as of right therefore is not

adjudicated in accord with due process of law

if the appellant does not have the effective

assistance of an attorney. This result is

hardly novel. The petitioners in both Anders

v. California, 386 U.S. 738, 18 L. Ed. 24

493, 87 S. Ct. 1396 (1967), and Entsminger v.

Iowa, 386 U.S. 748, 18 L. Ed. 2d 501, 87 S.

Ct. 1402 (1967), claimed that, although

represented in name by counsel, they had not

received the type of assistance

constitutionally required to render’ the

appellate proceedings fair. In both cases,

we agreed with the petitioners holding that

counsel's failure in Anders to submit a brief

on appeal and counsel's waiver in Entsminger

of the petitioner's right to a full

transcript rendered the subsequent judgments

against the petitioner unconstitutional.

(Emphasis added).

This Court's recent decision in McCoy v. Court of Appeals of

Wisconsin, District I, U.S. » 100 L. Ed. 24 440 (1988),

reaffirmed Anders requirements. The Court stated in McCoy that

when appellate counsel represents the appeal is frivolous and

seeks to withdraw, the court must make two determinations to

satisfy federal constitutional concerns:

"First, it must satisfy itself that the

attorney has provided the client with a

diligent and thorough search of the record

for any arguable claim that might support the

client's appeal. Second, it must determine

whether counsel has correctly concluded the

appeal is frivolous.*

Id. at 455. This Court found that these critical determinations

cannot be made on the mere statement by counsel that the appeal

eo @«

is frivolous. Id. at 454. Thus, McCoy reaffirmed Anders’

requirement that counsel's motion to withdraw be accompanied by

“a brief referring to anything in the record that might arguably

support the appeal. Id. That requirement was not met here.

Petitioner, on the other hand, suggests that Anders’® well-

established procedures, designed to protect the right to counsel,

see Pennsylvania v. Finley, 481 U.S. __. 95 L. Ed. 24 539

(1987), can be overlooked where the record is “devoid of error.”

Petitioner's suggestion is unwise and constitutionally unsound.

Whether the record is “devoid of error" is a determination that

this Court has found cannot be reliably made without counsel's

participation as an advocate and compliance with the Anders

procedures. Anders, 386 U.S. at 745; McCoy, 100 L. Ed. 2d at

454. As the circuit court found:

"...we believe that the absence of any

evidence of advocacy in the role of appellate

counsel presumptively places such a

conclusion in serious doubt and vindicates

the wisdom of Anders."

Pet. for Cert. A-17. If counsel's noncompliance with Anders can

be deemed nonprejudicial, it would, as the lower court noted, see

Pet. for Cert. A-18, “effectively eras[e] Anders from the books

altogether." Assuming that the appellate courts will routinely

enforce the Anders procedures, as petitioner contends, is simply

naive. The circuit court recognized that Freels* case was not

unique and that the Anders requirements are often ignored. Pet.

for Cert. A-16.*

Unless compliance with Anders is required, the

right to counsel cannot be protected. See Finley, 95 L. Ed. 2d

at 539.

In addition, a prejudice test would require courte reviewing

claims of ineffective assistance of counsel to make subsequent

For a more complete description of the Ohio appellate courts

failure to require compliance with the Anders procedures, see

Brief for Petitioner 42 n. 11 in Penson v. Ohio, No. 87-6116,

cert. granted, U.S. » 98 L. Ed. 246 977 (February 22,

1988) and the Amicus Curiae Brief of the Ohio Association of

Criminal Defense Lawyers In Support of Petitioner.

determinations as to whether the defendant was prejudiced by the

denial of counsel. Such a rule would require the unnecessary

expenditure of judicial resources to a situation where prejudice

is “so likely.” Strickland, 466 U.S. at 692. On the other hand,

requiring a presumption of prejudice when counsel is effectively

denied is an easy rule for the courts to follow. The violation

is easy to identify and easy for the appellate court to prevent.

See Strickland, 466 U.S. at 692. Finally, it accords the proper

respect for the fundamental right to counsel which is essential

to an adequate and effective appeal. Evitts, 469 U.S. at 392.

2. Respondent Freels Was Prejudiced By His

Appellate Counsel's Failure To Raise On

Appeal The Trial Court's Noncompliance

With Ohio Criminal Rule 11(C)(2)(a).

Petitioner contends that “the circuit court did not find any

error in the trial court's plea-taking procedures. Pet. for

Cert. 13. That is inaccurate. The circuit court did not address

this issue. The court made it clear that the only issue it

considered was appellate counsel's failure to comply with the

Anders procedures on appeal. Pet. for Cert. A-13. Indeed, the

circuit court's only mention of the issue supports Freels'

contention that Ohio Criminal Rule 11(C)(2)(a) was violated:

‘ "The record shows that while the trial judge

did cover most of the requirements with

Freels, he failed specifically to discuss the

elements of felonious assault with defendant

as required by the rule.*

Pet. for Cert. A-8.

Moreover, there was a reasonable probability of success on

appeal had counsel raised the issue of the trial court's

noncompliance with Criminal Rule 11(C)(2)(a). Ohio Criminal Rule

11(C)(2)(a) requires that the trial court address the accused and

determine that he is making the guilty or no-contest plea with an

understanding of the nature of the charge. This understanding is

constitutionally required. Henderson v. Morgan, 426 U.S. 637

(1976); State v. Carter (1970), 60 Ohio St. 2d 34, 37-38. Ohio

law further requires that the trial court record affirmatively

demonstrate that the accused understood the nature of the charge.

State v. Billups (1979), 57 Ohio St. 24 31; State v. Hawk (1977),

55 Ohio App. 2d 231; City of Garfield Heights v. Brewer (1984),

17 Ohio App. 3d 216.

In this case, the trial court record does not demonstrate

that Freels understood the nature of the charge. (Tr. 2-6). As

indicated by the circuit court, the trial court did not discuss

the nature or elements of the charge of felonious assault with

Freels or inquire as to his understanding of the nature of the

charge. Freels was only asked whether he understood that he was

Pleading no contest to felonious assault. (Tr. 2). No

meaningful dialogue between the court and Freels occurred. See

State v. Wilson (1978), 55 Ohio App. 2d 64, 65. (Meaningful

dialogue with defendant required for compliance with Criminal

Rule 11(C)(2) requirement that accused understand maximum

penalties). Thus, the district court's finding, see District

Court Order, attached in Appendix at A-l, that “the trial judge

carefully questioned [Freels) about his understanding of the

charge,” was clearly erroneous.

The District Court further found that Freels signed a

written plea agreement which stated that he was making the plea

voluntarily and with an understanding of the nature of the

charge. Appendix at A-2. However, Ohio courts do not presume

compliance with Rule 11 from a written record. Brewer, 17 Ohio

App. 3d at 217 (meaningful dialogue between court and defendant

required; written statements will not satisfy requirements);

Wilson, 55 Ohio App. 2d 64 (court is not in compliance with

Criminal Rule 11(C)(2) when it fails to inform the defendant in

oral dialogue of the maximum penalties of the offense to which he

pleads guilty, even though the defendant signs a written plea of

guilty); State wv. Misch (June 27, 1984), Hamilton App. No.

C830848, unreported, attached in Appendix at A-16 (defendant's

signature on a plea form is not sufficient for a waiver of

defendant's rights); State v. Hall (January 27, 1981), Montgomery

App. No. 6770, unreported, attached in Appendix at A-4 (advising

accused of name of charge is not tantamount to explaining to him

the nature of the charge; court will not presume from a silent

record that the trial court has complied with Rule 11). Thus,

there was a reasonable probability of success on appeal if this

issue had been raised.

Furthermore, Freels' pro se brief in the Ohio Court of

Appeals demonstrates that he did not understand the nature of the

charge of felonious assault, Ohio Revised Code § 2903.11(A)(2),

to which he entered a no contest plea. Ohio Revised Code §

2963.11 provides:

(A) No person shall knowingly:

(1) cause serious physical harm to another;

(2) cause or attempt to cause physical harm

to another my means of a deadly weapon or

dangerous ordinance, as defined in Section

2935.01 of the Revised Code.

In Freels' pro se brief he asserted in Assignment of Error

Number Three that the state failed to show that he caused serious

physical harm to the victim, as required by Section

2903.11(A)(1). However, Freels wae not charged under the (A)(1)

section of the statute, but the (A)(2) section. Freels'

Statement jin his pro se brief established that he did not really

understand the essential nature of the charge to which he plead

no contest.

Accordingly, Freels had a reasonable chance of success had

counsel raised a violation of Ohio Criminal Rule 11(C)(2)(a) on

appeal.

CONCLUSION

For these reasons the

pet it ion

should

Respectfully submitte

be denied.

Eight East Long

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COUNSEL FOR RE

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Opposition was served on Petitioner Norm F.

forwarding a t the Eficé f his ns

Federal Litigation Chief, Ohi Attorn 2nera

\9€fice Tower, 26th Fl r, 30 East roa tr

43266-058 by U.S. mail this 14tt Jay f WN

further certify that all parites reg t

served.

266-

;

No. 88-336

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

NORM F. HILLS, SUPT.,

Petitioner,

ALBERT HUSTON FREELS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX

JUDGE

MAG

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Fie

v fit t=»

IN THE UNITED STATES DISTRICT COURT Remy Th | res

FOR THE SOUTHERN DISTRICT OF ORIO eLE me

EASTERN DIVISION

Nov (6 4 92 py "hi

LET

SOU" NEn® S54 omit

FAST Avy Cog ame

ALBERT HUSTON FREELS iy 604 yes

Petitioner

vs. Civil Action C-2-86-0279

ARTHUR TATE, Supt.

Respondent

ORDER

Petitioner Freels’' August 7, 1986 motion to alter or

amend judgment is DENIED.

When he entered his plea of no contest, the trial judge

carefully questioned petitioner about his understanding of the

charge and the rights he was giving up. Petitioner said that he

understood what rights he was giving up and voluntarily made his

decision te plead after carefully considering the advice of his

counsel. The trial judge also told petitioner the maximum pena l-

ties and advised him of the effects of a plea of no contes*.

The only arguable ground for an appeal petitioner

advances is that the trial judge did not comply with Ohio

Criminal Rule 1ll(c)(2)(a) which provides that the trial judge

must:

Determinte] that he is making the plea volun-

tarily, with understanding of the nature of

the charge and of the maximum penalty

involved. ...

However, prior to the plea petitioner signed a written plea

agreement which specifically advised him of the charge and the

maximum penalties. The written plaa also states that petitioner

was making the plea voluntarily and with an understanding of the

nature of the charge. Petitioner's attorney also signed the

written plea. In open Court, petitioner acknowledged his written

plea, and said he had read it and discussed it with his attorney

before he signed it. He further stated that he understood all

the rights the written plea agreement said he had, and that he

understood what rights the written plea agreement said he was

giving up. Petitioner's attorney also stated in open court that

petitioner was intelligently and understandingly entering his

plea. Thus, petitioner had no arguable claim to set aside his

plea of no contest.

United States District/ Judge

Wee eS, CAney &

OHIO REVISED CODE

§ 2903.11. Felonious assault.

(A)

(B)

No person shall knowingly:

(1) Cause serious physical harm to another;

(2) Cause or attempt to cause physical harm

to another by means of a deadly weapon

or dangerous ordnance, as defined in

section 2923.11 of the Revised Code.

Whoever violates this section is guilty of felonious

assault, an aggravated felony of the second degree. If

the victim of the offense is a peace officer, as

defined in section 2935.01 of the Revised Code,

felonious assault is an aggravated felony of the first

degree.

| IN YHE COURT OF APPEALS OF KMONTGONERY COUNTY, OHIO

STave OF OHLO : as eX ck

i Plainliff-Appellce Z

i vs. : CASE NO. 6770

JAMES HALL, JR. $

Defendant-Appellant

Rendered on the 27th day of January, 1981

.LEE C. FALKE, Prosecuting Attorney for Montgomery County, Ohio,

BY: GARY W. CRIM, Assistant Prosecuting Attorney, Suite 300,

North Perry Street, Dayton, Ohio 45402

| 41

| Attorney for Plaintiff-Appellec

, DOUGLAS R. SHALFFER, Attorney at Law, 1406 Hulman Building, Dayton,

|Onio 45402

' Attorney for Defendant-Appellant

| bade aaa oo °

IZIEGEL, P.J. (By Assignment)

Defendant was indicted for two counts of aggravated robbery

(with deadly weapon) and one count of probationable aggravated

burglary. After plea bargaining, with the consent of the corrt, th

| prosecution nolled the first count of _ indictment (aggravated

robbery with deadly weapon) and struck the deadly weapon specifica-

tion from the second count, thus mak ing that charge probationable.

The Defendant then entered a plea of ‘ies contest to the charges of

‘probationable aggravated robbery and probationable aggravated

purglary. Afler receiving a pre~sentence investigation report, the

trial court sentenced the Defendant to serve a term of not less

“Court OF APPEALS

SECOND APPELLATE DISTRICT

ww ERR men ies Yareemanesi< ee =, ep cP Fa ot PINOT RY RT ne ee eee ee id aphchta See A Rm et ah ie Se Sate

Ae at >A ee a wil eit ee rier t. HPN epee

State vs. scene . Ade Ad SEES ms A a a at late

than four years nor more than twenty-five years on the charge of

agyravated robbery and a term of not less than seven years nor

more than twenty-five years on the charge of aggravated burglary,

said sentences to be served consecutively. In due time, Defendant

appealed this sentencing.

Subsequently, Defendant moved for shock probation, which was

denied without hearing, and thereafter Defendant was granted leave

to join his appeal from the overruling of his motion for shock

probation to the basic appeal from the sentence he received.

For his first assignment of error Defendant claims that:

"The court erred by accepting the Defendant's

pleas of no contecst...without first addressing

the Defendant personally and detexcmining the

the Defendant was making the pleas voluntarily,

knowingly, and intclligently, with the under-

standing of the nature of these charyes and the

consequences and cffect of his pleas upon find-

ings of guilty and that he was not eligible for

probation, all contrary to Crim. R. 11(C) (2) (a)

& (b)ien” :

The requirements of the Ohio Rules of Criminal Procedure

concerning pleas of no contest are set forth in Rule 11(C) (2):

"(2) In felony cases the court may refuse to

accept a plea of guilty or a plea of no

contest, and shall not accept such plea

without first addressing the defendant

personally and:

(a) Determining that he is making the plea

voluntarily, with understanding of the

nature of the charge and of the maximum

penalty involved, and, if applicable, that

he is not cligible for probation.

(b) Informing him of and determining that

he understands the effect of his plea of

guilty or no contest, and that the court

upon acceptance of the plea may proceed

with judgment and sentence.

COURT OF AFPEALS

SECOND APPELLATE DISTRICT

—— SO © RRS ee

State vs. Hall o oe is m pnenane = dagen” a ——

understands that by his plea he is waiving

\ ; his rights to jury trial, to confront wit-

nesses ayainst him, to have compulsory proc-

ess for obtaining witnesses in his favor,

and to require the state to prove his guilt

beyond a reasonable doubt at a trial at which

he cannot be compelled to testify against

himself."

Defendant admits that the trial court complied fully with

Crim. R. 11(C) (2) (c), but contends that it failed to comply with

Crim. R. 11(C)(2)(a) & (b), first, by failing to address the

Defendant personally and determining that the defendant understood

the nature of the charge of agyravated robbery and the nature of

the charge of aggravated burglary.

The arraignment took place on January 18, 1980, and we have

before us the transcribed record of that proceedings, consisting

of 1645 pages. The record establishes that the Defendant was present

during the entire proceedings. At the beginning the assistant

prosecuting attorney introducing the case advised the court that

Defendant had been indicted for aggravated robbery and aggravated

burglary, and Defendant's counsel joined in the introductory

remarks with reference to preliminary plea bargaining. It is

clear, therefore, that Defendant knew that he was charyed with

aggravated robbery and aggravated burglary.

Further on in the record reference is made to these charges,

first when the Waiver and Plea form was given to Defendant to

Sign (R-6):

BY THE COURT

Q Now, I want you to read it and explée-1 it to the

Court as you go along.

A. “Ihave bcen advised by the Court =-- se

COURT OF APPEALS

SECOND APPELLATE DISTRICT

nT RE OR

ing:

State vs. Hall -4-

YHE COURT: You can help hin.

THE DEFENDANT: “By the Court that I am pleading

no contest to the offense of aygravated robbery,

two counts --

Mr. Shaeffer: Count Two.

THE DEFENDANT: “Count Two, delete handgun, and

aggravated burglary and that the maximum penalty

which may be imposed is confinement in.a penal

institution for a term of 50 years or a fine of

$25,000 --

MR. SCHAEFFER: And a fine of $20,000. Do you

understand the word confinement, James?

THE DEFENDANT: Right.

At R-7a, Defendant's counsel questioned him:

MR. SCHAEFFER: In effect, if the Judge were to

find you guilty, having tendered a plea of no

contest, it would be four, five, six, or seven

years as a minimum term to 25 years as a maximuin

term on the aggravated robbery, to be served

concurrently with four, five, six, or seven years

as a minimun term and 25 years maximum term on the

aggravated burglary charge.

THE DEFENDANT: Right.

At R-8, the court was continuing the questioning:

Q In accordance with plea neyotiations, by dropping

a handgun with respect to one count of robbery,

the Court will consider you for probation. But,

you understand, do you not, that probation is kind

of a touch and go situation where you have got

several offenses?

A Right.

At R-9 Defendant's counsel was again involved in the question-

MR. SCHAEFFER: Your Honor, may I ask one other

question,

Til COURT: Yes. Go ahead.

COURT OF APPEALS

SECOND APPELLATE DISTRICT

Siate vs. Hall -5-

HK. SCHAFFER: James, we discussed by tendering

a plea of no contest, in the event the Judye were

to find you guilty of the aggravated robbery charge

as amended and the aggravated burglary charge that

he could consider, one, probation; two, probation

with a condition of six months in the workhouse.

THE COURT: That is called a split sentence.

At R-12, with the Defendant still reading from the Waiver

Form, the following transpired:

A "Face those who accuse me of this crime.”

Q Somebody had you arrested for these robbery charges,

and you have a right to see those people in open

court and subject them to the cross examination of

your lawyer, if we try the case.

MR. SCHAEFFER: Your Wonor, if it please the Court.

Do you know the name of the sole complaining wit-

ness in the aggravated robbery case, having discussed

his name with me during the course of our discussions?

THE DEPENDANT: Yes.

MR. SCHAEFFER: What is his name?

THE DEFENDANT: Beam.

MR. SCHAEFFER: Do you know the name of the chief

complaining witness in the aggravated burglary

charye as a result of discussing the same with me?

THE DEFENDANT: Yes, Sammons.

The foregoing excerpts from the record comprise all of tlhe

references made to aggravated robbery and aggravated burglary

rlurifig the procecdings wherein Defendant entered his no contest

wlea. At the close, the trial judge gave the following summary:

THE COURT: It appears to the Court that the

Defendant has signed his chanye of plea in the

presence of his attorney, the prosecuting attor-

ney and the Court. It appears to the Court that

he seems to have full and complete understanding

of the nature of this plea, that is, the no contest

plea, and that the Court may [find him cither guilty

or not guilty; and in the event the Court should

ees

COURT OF APPEALS

SECOND APPELLATE DISTRICT

iState vs. Hell ; wan ae A

find him guilty based upon the evidence that

is presented by the State, then he understends

the maximum penaltics provided by law; the

difference between consecutive and concurrent

terms; his cligibility for consideration for

probation; he understands the meaning of aggra-

vated robbery and aggravated burglary; and the

fact that a yun has been deleted from the

second count of the aggravated robbery charge...

While the trial court specifically found that the Defendant

“understands the meaning of aggravated robbery and aggravated

burglary,” the question still remains as to whether the record

demonstrates that understanding. It will not be presumed from

a silent record that the trial court has complied with Rule

requirements. An appellant mects his burden of demonstrating

error by ordering a transcript of the proceedings which do not

contain an explanation of his rights. State v. Boerst, 45 Ohio

App. 2d 240, 74 Ohio Opns 2d 350, 343 N.E. 2d 853 (1975).

inf Henderson vy, Morgan) 426 U.S. 637, 49 L. Ed. 2d 108 (1976),

the defendant pleaded guilty upon advise of counsel to a charge

of second degree murder and was convicted upon that charge. After

exhausting his state remedies he brought habeas corpus in the

Federal District Court, alleging that his plea was not voluntary

because he was not aware that intent to cause death was an element

ef the offense. At first, the District Court, on the basis of the

state court record, denied relief, but the court of appeals

Summarily reversed and directed the District Court to conduct an

evidentiary hearing on the subject. At this subsequent hearing

hat court found that the respondent “was not advised by counsel

or the court, at any time, that an intent to cause death or a

design to effect the death of the victim was an essential element

COURT OF APPEALS

SECOND APPELLATE DISTRICT

a ee I~

; State vs. Hall

| ot Murder 2nd Degree." In affirming the granting of the writ, the

-y-

Supreme Court of the United States held, as stated in par. 3 of

the headnotes:

“A criminal defendant's Plea of guitty may be

involuntary either because he does not under-

Stand the nature of the constitutional protec-

tions that he is waiving, or because he has

such an incomplete understanding of the charge

that his plea cannot stand as an intelligent

admission of guilt; without adequate notice

of the nature of the charge against him, or

proof that he in fact understood the charge,

the plea cannot be voluntary in this latter

scnse."

A similar situation was presented to the Court of Appeals for

Franklin County in State v. Hawk, 55 Ohio App. 2d 231, 9 Ohio Opns

3d 378, 380 N.E. 2d 736 (1977), wherein the majority held, per

par. 1 of the syllabus:

“The failure of a trial court to make an oral

inguiry with regard to whether an accused

entered a plea of guilty to the offense of

murder ‘with an understanding of the nature

of the charge’ is reversible error. (State v.

Caudill, 48 Ohio St. 2d 342, followed.)"

In that case, as in the case at bar, the record established

that the trial court did in fact advise the defendant that he was

»~

murder". There, as here, it was “quite apparent that the ak

court did not make inguiries to determine whether defendant enter

entering a plea “to the stipulated lesser included offense of

his plea of guilty...'with understanding of the nature of the

charge'". Op. cit., 55 Ohio App. 24 @ 234.

A dissent in State v. Hawk, supra, emphasized the holding in

State v. Stewart, 51 Ohio St. 2d 86, 364 N.E. 2d 1163 (1977),

a ee

wherein it was held that “although it can be argucd that the trial

COURT OF APPEALS

SECOND APPELLATE DISTRICT

ibe scr

State vs. Nall

court sbould adhere scrupulously to the provisions of Crim R,

Li(c) (2) (State v. Canditl (1976), 48 Ohio St. 2d 342), Lhere must

showing of prejudicial effect before a guilty plea may be

vacated." Here, the state's brief has also called our attention

to that case. ‘That case, however, dealt with the trial court's

failure to advise the defendant that under the charge to which he

had tendered a plea of guilty he was not eligible for probation,

The basic case with regard to the care required to be exer-

cised by a trial court in the acceptance of a plea of guilty or

of no contest is State v. Caudill, 48 Ohio St. 2d 342, wherein the

Supreme Court held in the syllabus:

"1. In accepting a written plea of no contest

to a felony charge, the trial court must

adhere scrupulously to the provisions of

Crim, R. 11(C) (2).

“2. Adherence to the provisions of Crim. R.

11(C) (2) required an oral dialogue between

the trial court and the defendant which

enables the court to determine fully the

defendant's understanding of the consequences

of his plea of guilty or no contest.

"3. Whe requirements of Crim. R. 11(C)(2) are

not satisfied by a written statement by the

defendant or by representations of counsel."

State v. Hawk, supra, (wherein a motion for leave to appeal was

overruled, March 17, 1978) recognized that State v. Stewart, supra,

modified the first, but not the second and third paragraphs of the

syllabus of Caudill, but held that omissions of compliance sith

Crim. R. 11 with regard to defendant's understanding of the nature

of the charge against him remains unmodified by Stewart, and furthe)

held that it would be improper for that court to extend Stewart as

to further modify the syllabus of Caudill.

COURT OF APPEALS

SECOND APPELLATE DISTRICT

A ee et

NED Ae et EO EO TEE TS

-~9-

State vs. Hall

Subsequent to Hewk and Stewart, the Supreme Court further

relaxed the requirements of Caudill in State v. Strawther, 56 Ohio

st. 2d 298, 383 N.E. 2d 900 (1978), and in State v. Billups, 57 Ohic

‘St. 2d/31, 385 N.E. 2d 1308 (1979). Strawther involved the failure

of the trial court oraliy to advise the defendant that he had a

right to compulsory process to obtain witnesses in his behalf, and

the Supreme Court held that in the absence of prejudicial effect

such omission docs not constitute prejudicial error. In BiJlups

‘the trial court omitted some of the required colloquy because the

Cefendant acknowledged that he had heard and understood the court's

{

earlier colloquy with a previous defendant, which procedure was

held to be a substantial comp)iance with the Rule. Billups did

specifically point out that the trial court did conduct a discus-

‘sion with the defendant apprising him of the nature of the charges.

Fron our examination of the record we conclude that in the

cese before us prior to the court accepting Defendant's no contest

plea the court did not engage in any dialogue with the Defendant

"deterinining that he is making the plea voluntarily, with under-

standing of the nature of the charge." We hold that advising a

idefendant of the name of the charge set forth in the indictment

is nol tantamount to explaining to him the nature’of the charge.

In accordance with the holding in Henderson v. Morgan, supra, we

conclude that unless the record establis shes that a pleading

jcetendant understood the nature of the nein against him, he

‘cannot be said to have pleaded guilty or no contest to that

charye voluntarily. We further reject the prosecution's argument

“COURT OF APPLALS

SECONL APPELLATE DISTRICT

State vs. Hall

that the Stewart, Stravther, and Billups Limitat ions on thus Caudill

rule can be extended to determination that there is substantial

compliance with Crim. R. 11L(C) (2) where the record fails to cstab-

lish that the defendant understood the "nature of the charge"

against him. The first part of Defendant's first assignment of

error is wccordingly held to be well taken.

The second part of Defendant's first assignment of error

asserts that the trial court erred in accepting his no contest

plea for the reason that he. did not understand that he was not

eligible for probation. In order to so advise a defendant at a

plea, the trial judge would have to have a presentence report

before him. in the case sub-judice there was no need for a pre-

sentence report prior to the finding of guilty. Under these

circumstances the trial court is not required to inform a defendant

that he is not eligible for probation prior to a plea. State v.

Woods, 48 Ohio App. 2d 339, 357 N.E. 2d 1106 (1976). This part

of Defendant's first assignment of error is not well taken.

In his second assignment of error, Defendant asserts that

the trial court erred in failing to grant him probation and shock

probalion solely by reason of its determination that he was a

“repeat offender" wilhout granting him a meaningful hearing Lo

rebut such determination. It is noted that under Crim. R. 11(B) (3)

when a plea of no contest is accepted, unless the charge is one of

agyravated murder, the court shall proceed with the sentencing

under Rule 32. Under Crim. R. 32.2 a presentence report is re-

the trial

quired only before the court grants probation. Since

court had no legal obligation to require a presenlence report

COURT OF APPEALS

SECOND APPELLATE DISTRICT

a BR PO VEG Het

ROT Sat HORT es ATE SS A OP FAR NTS HEM, EOP LO EP ne ee

=}i-

State vs. liall

before sentencing Defendant, there can be no reguirewent that

a defendant be permitted to offer testimony to rebut anything that

might be contained in any presentence report which the court

wight cxamine prior to sentencing.

Defendant's third assignment of error raises the same question

with regard to his motion for shock probation. In this situation

he sought a formal hearing regarding that motion "for the purpose

of submitting relevant and material evidence to rebut any previous

determination by the Court that the Defendant is a repeat offender. ].

Ne does admit, however, that there is no clear statutory expression

in Section 2947.061, Revised Code, conferring upon him the right

to a heering on his motion for shock probation. State v. Poffenbaugh,

14 Ohio App. 2d 59 (1968). In view of the state of the record here

we need not comnent. on the due process argument Defendant advances.

The trial court did not state that he sentenced Defendant to con-

finement solely because he found him to be a repeat offender. The

sentence in our case had been announced and the prosecutor had

called up the next case before the judge added, almost as an after-

thought, that he found the Defendant to be a repeat offender.

Defendant's second and third assignments of error are therefore

overruled.

* Since we have sustained Defendant's first assignment of error

and have determined that, ,since the record did not establish that

the Defendant knew the nature of the offenses with which he was

charged, his plea of no contest cannot be considered to have been

voluntarily given, this case will be reversed and remanded to the

COURT OF APPEALS

SECOND APPELLATE DISTRICT

State vs. Mail. 5 + 1S Pe ee eS _712-

common pleas court fox further proceedings in accordance with law

in order to afford the Defendant an opportunity to reconsider his

plea.

SHERER and CRAMER, JJ., concur.

(Judge Paul Sherer, Retired [rom the Court of Appeals, Second

Appellate District, Judge Fred B. Cramer, Retired from the Butler

County Common Pleas Court and Judge Donald L. Ziegel, Ri-:ired from

the Preble County Comnon Pleas Court, sitting by assigninent of

the Chief Justice of the Supreme Court of Ohio.)

Copies mailed to:

Gary W. Crim

Douglas R. Shacffer

COURT OF APPEALS

SCCOND APPELLATE DISTRICT

Pg A l [4

THE COVRT LAR UT

IN THE COURT OF APPEARS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-830848

TRIAL NO. B-832567

Plaintiff-Appellee,

vs. H OP 7 ns Oo PR.

ANTHONY J. MISCH, Hy

Defendant-Appellant. : once

YUN 27 1982

CLERK OF courts

Criminal Appeal from Court of Common Pleas

Judgment appealed from is: Reversed and Remanded

Date of Judgment entry on Appeal: June 27, 1984

Messrs. Arthur M. Ney, Jr., and Christian J. Schaefer, 420

Hamilton County Courthouse, Court and Main Streets, Cincinnati,

Ohio 45202, for Plaintiff-Appellee, .

Mr. Dennis E. Halaby, 615 Main Street, Second Floor, Cincinnati,

Ohio 45202, for Defendant-Appellant.

-e ef 4

“2 @e ea Se = oe

Be-dddas ANT we 8 - 0-66-88 6-8-8 @-98— ee me oe oo

ee ee

BLACK, J.

Defendant pleaded guilty to theft and was sentenced to one

year in the Ohio Penitentiary after a pre-sentence investiga-

tion. Defendant presents two assignments of error: (1) that the

trial court erred in accepting his guilty plea, because the court

failed to comply with Crim. R. 11(C)(2); and (2) that defendant

was promised a split sentence which he did not receive. We sus-

tain defendant's first assignment of error and overrule his

second.

In his first assignment of error defendant contends that

the trial court failed to inform him of the following: what was

the effect of his guilty plea, that the trial court upon accept-

ance of his plea could proceed with judgment and sentence, and

that he could not be compelled to testify against himself. Crim.

R. 11(C)(2) requires that defendant be informed of each of these

before his guilty plea may be accepted.?

The Ohio Supreme Court set forth in State v. Ballard

(1981), 66 Ohio St. 2d 473, 423 N.E.2d 115, two tests to be used

to determine whether the trial court complied with Crim. R.

11(C)(2). One test is to be used with the four constitutional

rights enumerated in Crim. R. 11(c)(2)(c),? and the other test is

to be used with all the other elements of Crim. R. 11(C)(2). When

dealing with the nonconstitutional elements of Crim. R. 11(C)(2),

the trial court need only "substantially comply” with the rule

and defendant must show that any error was prejudicial. Ballard,

supra at 475, 423 N.E.2d at 117, citing, State v. Stewart (1977),

51 Ohio St. 2d 86, 364 N.E.2d 1163. A stricter standard is man-

dated for the four constitutional rights listed in Crim. R.

11(C)(2) (ce), and this requires the court to inform defendant with

greater care and completeness that he is waiving these rights,

although the exact language of Crim. R. 11(C) need not be used.

Ballard, supra at 477-78, 423 N.E.2d at 118-19.

The failure to inform defendant about the effect of his

guilty plea, or about proceeding immediately to judgment and sen-

tence, involves nonconstitutional rights. The less strict, sub-

stantial compliance/prejudice test must be applied to determine

whether the court complied with Crim. R. 11(C)(2). <A complete

reading of the record indicates that defendant did understand the

effect of his guilty plea. Defendant realized that his plea was

an admission of guilt, because he was informed that his plea

relieved the state from proving him guilty. Defendant admitted

to the trial court that he must have been crazy to steal the

stuffed animal. Defendant was sufficiently informed of the

effect of his plea and the record does not demonstrate that he

was prejudiced. Defendant is Soerest Get the trial court did

not specifically inform him that the court could proceed immedi-

ately to judgment and sentence, but defendant was not prejudiced,

because the court did not immediately proceed to judgment and

sentence. It ordered a pre-sentence investigation. State v.

Thomas (May 14, 1980), Hamilton App. No. C-789456, unreported;

—

—t-3@& m- A-ma-¢ --——_

tiaae

a ee

No 6s ee eo

State v. Brown (Nov. 1, 1978), Hamilton App. Nos. C-780055, c-

780056, unreported.

Defendant's complaint that the trial court did not inform

him of his privilege against self-incrimination involves a con-

stitutional right requiring the stricter standard set forth in

Ballard. The Supreme Court stated in Ballard, supra at 480, 423

N.E.2d at 120, that defendant must be “meaningly informed” of his

privilege against self-incrimination, and that the test is

“whether the trial court explained or referred to the right in a

manner reasonably intelligible to the defendant." In the instant

case, the court completely failed to inform defendant of his pri-

vilege. The prosecution notes that defendant had signed a writ-

ten plea that stated that he waived his constitutional right to a

trial at which he could not be compelled to testify against him-

self. We hold that while this written waiver may satify the

lesser substantial compliance/prejudice test, it does not meet

the stricter test required for the four constitutional rights set

apart in Ballard. Crim. R. 11(C)(2) requires that defendant be

addressed personally and be informed of his right to "a trial at

which he cannot be forced to testify against himself," and we in-

terpret Ballard to require more than a written waiver of this

privilege.>

In his second assignment of error defense counsel attaches a

letter from defendant which alleges that defendant was promised a

split sentence which he did not receive. As there is no evidence ;

on the record of the alleged plea bargain, defendant's second

assignment of error is overruled. Lemar v. Marburry (1982), 69

Ohio St. 2d 274, 431 N.E.2d 1028.

Because defendant was not "meaningfully informed" of his

privilege against self-incrimination, this case is reversed and

remanded for further proceedings.

SHANNON, P. J., and PALMER, J., CONCUR.

Crim. R. 11(C)(2) reads in part:

(2) In felony cases the court may refuse to

accept a plea of guilty or a plea of no contest,

and shall not accept such plea without first

addressing the defendant personally and:

* *£

(b) Informing him of and determining that

he understands the effect of his plea of

guilty or no contest, and that the court

upon acceptance of the plea may proceed with

judgment and sentence.

understands that by his plea he is waiving

his rights to jury trial, to confront wit-

nesses against him, to have compulsory pro-

cess for obtaining witnesses in his favor,

and to require the state to_ prove his guilt

beyond a reasonable doubt at a trial at

which he cannot be compelled to testify

against himself. (emphasis added)

re These four constitutional rights are: the privilege against

compulsory self-incrimination, the right to a jury trial,

the right to confront accusors, and the right of compulsory

process. The first three rights are referred to as “Boykin

rights." Boykin v. Alabama (1969), 395 U.S. 238, 89

S. Ct. 1709, held that waiver of these rights cannot be

presumed from a silent record.

—sc-= os

CO ae ae tT ee ee eee

3. The Ohio Supreme Court in Stete v. Strawther (1978), 56

Ohio St. 24 298, 383 N.E.2d 900, held that a written guilty

plea in which defendant waived his right to compulsory pro-

cess was enought to show substantial compliance with Crim.

R. 11(C)(2) when defendant could not demonstrate prejudice. {

Strawther was decided prior to Ballard and used the F

substantial compliance/prejudice test set forth in Stewart,

supra. We believe that Ballard, supra, rejected this test

for the four constitutional rights listed in Crim. R.

1l(c)(2)(c), and that Strawther does not control what the

trial court must do when it informs the defendant and

determines that he understands that he is waiving the four

constitutional rights.

PLEASE NOTE:

The Court has placed of record its own entry in this case on

the date of the release of this Opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.