# Opposition Brief — Hills v. Freels

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 997

## Text

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN BE OBTAINED, A NEW FICHE
WILL BE ISSUED.

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)..

.
.
.
.
.
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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

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

.
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STATUTE:
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RULE:

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= ifi =

No. 88-336

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

NORM F. HILLS, SUPT.,
Petitioner,
Ve
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

i
~
'

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

1

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

Je

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
Cn? 7... ha - nh 4
AUMIUS ¢ } s
(614) 466-5394
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.

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:
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No. 88-336

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

NORM F. HILLS, SUPT.,
Petitioner,
Ve
ALBERT HUSTON FREELS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APPENDIX

JUDGE
MAG
NS

D cifaK

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.

ab

United States District/ Judge

Wee eS, CAney &

7

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|
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

i
| 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

|
|
i
'
u
i
|
|
| prosecution nolled the first count of _ indictment (aggravated
i

|

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 YareemanesiA 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 ——

(c) Informing him and delermining that he
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
d

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

ec

-~9-

State vs. Hall

H

!

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

ee

“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

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

ee ee

iS

C.

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).

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.

(c) Informing him and determining that he
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0029%3A2. Public record. Not legal advice.