Petition for Writ of Certiorari — Ohio v. Veney (No. 08-1018)

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Supreme Court, U.S.

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(4 (i) No. 08-__981018FEB 9 - 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

THE STATE OF OHIO,

Petitioner,

Vv.

THOMAS L. VENEY,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

PETITION FOR WRIT OF CERTIORARI

RON O’BRIEN

FRANKLIN COUNTY

PROSECUTING ATTORNEY

STEVEN L. TAYLOR

Counsel of Record

ASSISTANT PROSECUTING ATTORNEY

373 South High Street, 13th Floor

Columbus, Ohio 43215

(614) 462-3555

Counsel for Petitioner

TA — “RITA IEE oP NRRL CEERI AAMT PRS EN RE oN CINE, LRT

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20002

IT.

III.

QUESTIONS PRESENTED

This criminal defendant approved a written

plea in which he acknowledged his under-

standing of various constitutional rights and in

which he waived those rights, and he further

acknowledged in open court that he approved

the written plea and had reviewed his consti-

tutional rights with his counsel. Did the con-

stitutional standard under Boykin v. Alabama,

395 U.S. 238 (1969), require that the trial

court go further and provide specific oral ad-

visements and obtain specific oral waivers re-

garding such constitutional rights?

The Boykin Court held that the record of pro-

ceedings must affirmatively disclose the

waiver of three constitutional rights, t.e., the

right against compelled self-incrimination, the

right to jury trial, and the right to confront

witnesses. Should the list of three Boykin

rights be expanded to include the constitutional

right to require proof beyond a _ reasonable

doubt in a trial?

Assuming that an oral advisement is constitu-

tionally required, does the failure to give such

an advisement require automatic reversal

when other parts of the trial-court record, in-

cluding the defendant’s written plea, show that

the defendant was aware of the right to proof

beyond a reasonable doubt and was waiving

that right?

(1)

TABLE OF CONTENTS

QUESTIONS PRESENTED. .................cecceeseseeees

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Se PIE SEMEL ITY cscvcsvescnrossccserssszsccorseenssssoonsess

JURISDICTIONAL STATEMENT .....................

CONSTITUTIONAL PROVISION INVOLVED .

STATEMENT OF THE CASE .........5.....c.esesereeees

ARGUMENT

Il.

THE DUE PROCESS STANDARD OF

BOYKIN V. ALABAMA DOES NOT

REQUIRE AN ORAL’ ADVISEMENT

OF A CONSTITUTIONAL RIGHT.

WRITTEN PLEA DOCUMENTATION

CAN BE SUFFICIENT TO AFFIRMA-

TIVELY DISCLOSE THAT THE DE-

FENDANT WAS AWARE THAT HE

WAS WAIVING THE PERTINENT

CONSTITUTIONAL RIGHTG...................

AS A MATTER OF DUE PROCESS UN-

DER BOYKIN, THE RECORD NEED

ONLY AFFIRMATIVELY DISCLOSE

THE WAIVER OF THREE CONSTITU-

TIONAL RIGHTS: THE RIGHT

AGAINST COMPELLED SELF-

INCRIMINATION, THE RIGHT TO

JURY TRIAL, AND THE RIGHT TO

CONFRONT WITNESSEG.......................

(111)

oo nm oO

TABLE OF CONTENTS—Continued

lif, THE LACK OF AN ORAL ADVISE.

MENT DOES NOT AMOUNT TO

STRUCTURAL ERROR REQUIRING

AUTOMATIC REVERSAL. OTHER

PARTS OF THE RECORD, INCLUD-

ING THE DEFENDANT'S WRITTEN

PLEA, CAN SHOW THAT THE DE-

FENDANT WAS AWARE OF THE

PRESUMPTION OF INNOCENCE.........

LAPEER EINEY ito redaxitacrersshecicersenetaiinetviaundeceeiays

APPENDIX A Ohio Supreme Court Opinion

SARIN Alor pe Bete me oiey Re mn Teen AnD PRO

APPENDIX B Ohio Court of Appeals Opinion

S| REI Ae Noe a ne TOO E RATS RT ORe IIE ve pS Ie ”

APPENDIX C Ohio Supreme Court Entry

Denying Reconsideration in Case No. 2007-

Re re eld os iiss sos lewsssecdicseaeten aan

APPENDIX D Ohio Supreme Court Entry

Denying Reconsideration in Case No. 2007-

Be FO i aitcrtucesssececnseniotcuseaeeiass

Page

TABLE OF AUTHORITIES

CASES Page

Barrett v. State, 544 P.2d 830 (Alaska

Ne ee tarisiliildtincatisisintsialuidunecenearin 18

Blankenship v. State, 858 S.W.2d 897

SUN WIN ix ciskcciannsuvanddevudavdesscavacvasscekess 18

Boykin v. Alabama, 395 U.S. 238 (1969).... passim

Brady v. United States, 397 U.S. 742

Chapman v. California, 386 U.S. 18 (1967)..

Commonwealth v. Morrow, 363 Mass. 601,

OS FE Bee BE CII) vaiceccdvecenssectcacesvensess 18

Davis v. State, 278 Md. 103, 361 A.2Zd 113

aT 16, 18

Dewitt v. State, 755 N.E.2d 167 (Ind. 2001). 18

Engle v. Isaac, 456 U.S. 107 (1977) ............. 19

Fontaine v. United States, 526 F.2d 514

a epic alavcrs 17

Godinez v. Moran, 509 U.S. 389 (1993)....... 20

Hill v. Beyer, 62 F.3d 474 (3rd Cir. 1995).... 16

In re Beasley, 66 Ill.2d 385, 362 N.E.2d

AE): , ae aati nee nates 18

Jhun v. State, 2004 Haw. LEXIS 348

Ue ee eaas 3

Johnson v. Ohio, 419 U.S. 924 (1974).......... 21

Johnson v. United States, 520 U.S. 461

eo sg Se okt soy itp una re Raines ae 24

Lyles v. State, 745 S. W. 2d 567 (Tex. App.

ARSE ann gent pM tare Orne Surg Aa mre eed ees 21

McChesney v. Henderson, 482 F.2d 1101

I I 17

Michigan v. Long, 463 U.S. 1032 (1983)...... 6,9

Neder v. United States, 527 US. 1

1 ¢ ___ RRRSRO Ree entire Worse OU Nappa Ue ep Ce OT 22, 24, 25

Ohio v. Reiner, 532 U.S. 17 (2001)............... G

TABLE OF AUTHORITIES—Continued

Parke v. Raley, 506 U.S. 20 (1992)...............

People v. Howard, 1 Cal.4th 1132, 824

Be ee OED pac san kensis ci sndesseutdeddsenseceds 3,

People v. Saffold, 465 Mich. 268, 631

ee ID oc n e's vdnoncnahsacescehenens'sers

People v. Wade, 708 P.2d 1366 (Colo. 1985)..

Riggins v. McMackin, 935 F.2d 790 (6th

RTS ES I ae ee ee

Snyder v. Massachusetts, 291 U.S. 97

USO STV ei ee

State v. Aranda, 574 P.2d 489 (Ariz. App.

ER SS ATONE eS ey Oe

State v. Ballard, 66 Ohio St.2d 473, 423

NE ee in. ci sinacusnedcocedennnvenese’s

State v. Beckley, 742 N.W.2d 841 (S.D.

EERE ESSN, OOO oe

State v. Billups, 57 Ohio St.2d 31, 385

ee eo cavcsctacnsarecccvevesonnvecs

State v. Colon, 118 Ohio St.3d 26, 2008

Ohio 1624, 885 N.E.2d 917 (2008)............

State v. Colyer, 98 Idaho 32, 557 P.2d 626

Sc cuagn bndesosets

State v. Lambert, 266 S.C. 574, 225 S.E.2d

a ie sca sdumevadiv access

State v. Propotnik, 299 Minn. 56, 216

State v. Stone, 43 hio St.2d 163, 331

BE Oe PI UOE o scuccncccesssesccacceccrssecerecsecs

State v. Storbakken, 246 N.W.2d 78 (N.D.

State v. Sturm, 66 Ohio St.2d 483, 422

oie MU © UE sc ivsccnsaceecdccesdeccdecacecscesen

Page

16,

18,

18, 2

vill

TABLE OF AUTHORITIES-—Continued

Page

Stinson v. Turner, 473 F.2d 913 (10th Cir.

SED niknivencdeacarsnubinadantbanceutayedevcumbersacteswerae 17

Todd v. Lockhart, 490 F.2d 626 (8th Cir.

ME iciveciisdistchsasnadentevincessustieostemtbanecetotans 17

United States v. Akinsola, 105 F.3d 331

CPR ee EE Maren saukceiisiddncriiucciseisiciedavciabas 23, 24

United States v. Broce, 488 U.S. 563 (1989). 20

United States v. Dominguez-Benitez, 542

ee 5, 19, 23, 24, 25

United States v. Mezzanatto, 513 U.S. 196

RRL SPAIN ee oe Oe eee EO eT SEND Sere 20

United States v. Nelson, 1991 U.S. App.

Lexis 30002 (Sth Cir. 1991) ............0.000... 21

United States v. Ruiz, 536 U.S. 622 (2002) . 20

United States v. Simmons, 961 F.2d 183

6 So SM SERRA CES AAR es Ee ee 17

United States vu. Vonn, 535 U.S. 55

a a 13, 23, 24

United States v. Wagner, 996 F.2d 906 (7th

i ERR some eM es CRS ON eee rR A 17

United States v. Ward, 518 F.3d 75 (1st

Eps A nccci ponaccsnteeadcheisssatientiaknntatenitdennees’ 16

Wade v. Coiner, 468 F.2d 1059 (4th Cir.

IK ci ctta bande’ ues thiedeeidedicseditdsknndcuuksansalasabins 16

White v. State, 497 N.E.2d 893 (Ind. 1986).. 21

Wilkins v. Erickson, 505 F.2d 761 (9th Cir.

SPR esa Monee ne AAP aS rete rem 15, 16, 17

Wood v. Morris, 87 Wash.2d 501, 554 P.2d

Ee Rika adil dis siden nk cana cgvinvimemsanties 18

Zacchini v. Scripps-Howard Broadcasting

Co., 433 U.S. 562 (1977)

V1ll

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Traynor, The Riddle of Harmless Error .... . 22

RULES

Ng Be ee cir csectsadhccenescosccntconcveicosccty Gy OF

Ba OR Re go 8) . passim

Ohio Crim.R. 632A) and (B)...............00...00000. 4

Ohio Sup. Ct. Rules for Reporting Opi-

Ce ee caanbbeene 8

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment, United States

NETS) ER, SEED Ae Te OR RaERITT EEO OT OD 9, 22

STATUTES

ee Me ss ssuabusincbuscauneines

IN THE

Supreme Court of the Anited States

THE STATE OF OHIO,

Petitioner,

Vv.

THOMAS L. VENEY,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

PETITION FOR WRIT OF CERTIORARI

INTRODUCTION

In Boykin v. Alabama, 395 U.S. 238 (1969), this

Court found that due process was violated when the

Alabama trial court had accepted the defendant’s

guilty plea without the record affirmatively disclosing

that the defendant was aware of three constitutional

rights: (1) the right to jury trial; (2) the right to con-

front witnesses; (3) the right not to be compelled to

testify against himself. The “wholly silent” record

was not sufficient to comply with due process. Z/d. at

240.

Ohio’s Crim.R. 11(C)(2)(c) goes beyond Boykin in at

least two ways. It requires that the trial court orally

advise the defendant of certain constitutional rights.

Boykin had not purported to set forth an oral-

advisement requirement but rather only required

that the record affirmatively disclose that the defen-

dant was aware of the rights. In addition, Ohio’s

Crim.R. 11(C)(2)(c) requires such oral advisement not

only as to the three Boykin rights but also as to the

right to compulsory process and the right to require

the prosecution to prove guilt beyond a reasonable

doubt at a trial.

In the present case, no oral beyond-reasonable-

doubt advisement was given, but that advisement

and respondent’s waiver thereof were specifically set

forth in a written Entry of Guilty Plea approved by

respondent. Respondent grally acknowledged his ap-

proval of the Entry and, further, orally acknowledged

that he had reviewed his constitutional rights with

his attorney. In light of these matters of record, the

lack of the oral advisement was harmless. Nor was

there any error under Boykin, since the record affir-

matively disclosed respondent’s awareness of the

right and his waiver thereof.

Even so, the Ohio Supreme Court concluded that

the guilty plea must be vacated. Without even men-

tioning the Entry of Guilty Plea, the Ohio Supreme

Court concluded that the lack of an oral advisement

on the beyond-reasoneble-doubt right rendered the

plea “constitutionally infirm,” and the court further

found that such error required automatic reversal.

The Ohio Supreme Court’s ruling was constitu-

tional in nature, see Jurisdictional Statement below,

and that ruling amounts to a controversial extension

of Boykin by requiring an oral advisement as to the

presumption of innocence. At least ten of the federal

circuit courts and a greater number of state supreme

courts have concluded that specific oral articulation

of the rights is not constitutionally required under

Boykin, even as to the three Boykin rights.

“(T]he overwhelming weight of authority no longer

supports the proposition that the federal Constitution

requires reversal when the trial court has failed to

give explicit admonitions on each of the so-called

Boykin rights.” People v. Howard, 1 Cal.4th 1132,

1175, 824 P.2d 1315, 1339 (1992). “[T]he high court

has never read Boykin as requiring explicit admoni-

tions on each of the three constitutional rights.” Id.

at 1177, 824 P.2d at 1341 “There is wide agreement

both on this point and on the applicable test: The

record must affirmatively demonstrate that the plea

was voluntary and intelligent under the totality of

the circumstances.” Jd. at 1178 & n. 18, 842 P.2d at

1341 & n. 18 (collecting cases). “[T']he federal appel-

late courts have expressly rejected” the view that

specific oral articulation is required. Jd. at 1177-78,

842 P.2d at 1341; see also, Jhun v. State, 2004 Haw.

LEXIS 348 (Haw. 2004) (collecting cases; “this is the

prevailing view among the federal appellate courts.”).

A smaller number of courts have concluded that

Boykin does not extend beyond the three Boykin

rights to require that the record affirmatively dis-

close the defendant’s awareness of the presumption of

innocence.

It is noteworthy that Fed.R.Crim.P. 11 does not ex-

plicitly require an oral beyond-reasonable-doubt ad-

visement. But under the Ohio Supreme Court’s

flawed co” stitutional ruling, Fed.R.Crim.P. 11 would

be unconstitutional in that respect. Given the large

number of cases rejecting any “specific articulation”

requirement for even the Boykin rights, and given

the courts concluding that the presumption of inno-

cence is not a Boykin right at all, the first and second

questions presented for review warrant the granting

of a writ of certiorari.

The third question presented also warrants review,

as the Ohio Supreme Court’s requirement of auto-

matic reversal conflicts with this Court’s structural-

error doctrine. The Ohio Supreme Court failed to ad-

dress the prosecution’s contentions under QOhio’s

Crim.R. 52(A) and (B) that harmless-error and plain-

error review must apply to the omission of the oral

beyond-reasonable-doubt advisement. The Court also

failed to address the prosecution’s contention that the

omission of the advisement did not amount to struc-

tural error. The Court simply concluded that a rule

of automatic reversal must apply.

While this Court cannot review the Ohio Supreme

Court’s failure to address its own rules regarding

harmless-error and plain-error review, the Ohio Su-

preme Court’s constitutional analysis called for an

assessment of harmless error under constitutional

standards. Harmless-error analysis for federal con-

stitutional errors is a federal question. Chapman v.

California, 386 U.S. 18, 21 (1967).

Under this Court’s structural-error doctrine, the

Ohio Supreme Court’s automatic-reversal holding is

untenable. A court’s failure to give an oral advise-

ment could be rendered harmless in any number of

ways, including the defendant having received the

advisement in an earlier hearing or the defendant, as

in the present case, having approved a written Entry

of Guilty Plea containing such advisement. This

Court has stated that, in the context of error under

Fed.R.Crim.P. 11, the omission of a single advise-

ment is not even colorably structural. United States

v. Dominguez-Benitez, 542 U.S. 74, 81 n. 6 (2004).

The Ohio Supreme Court did not explain how such

an omission could be structural, despite the prosecu-

tion’s citation to Dominquez-Benitez and citation to

this Court’s structural-error analysis. The Ohio Su-

preme Court should have conducted a harmless-error

review. Its requirement of automatic reversal is dis-

proportionate to the purported constitutional error

committed, and it unnecessarily requires litigants

and victims to “start over” even in the face of affirma-

tive evidence that the error was harmless.

OPINIONS BELOW

On March 22, 2007, the Ohio Court of Appeals,

Tenth Appellate District, reversed respondent’s con-

viction in a 2-1 vote, concluding that a standard of

strict compliance required reversal because no oral

beyond-reasonable-doubt advisement was given at

the time of respondent’s guilty plea. State v. Veney,

2007 Ohio 1295 (2007).

The Ohio Supreme Court accepted review over the

prosecution’s discretionary and certified-conflict ap-

peals. On October 9, 2008, the Ohio Supreme Court

affirmed in a 4-3 vote, concluding that the lack of an

oral beyond-reasonable-doubt advisement rendered

the guilty plea “constitutionally infirm.” State v. Ve-

ney, 120 Ohio St.3d 176, 2008 Ohio 5200, 897 N.E.2d

621 (2008).

On December 3, 2008, the Ohio Supreme Court de-

nied the prosecution’s timely October 15, 2008, mo-

tion for reconsideration in the same 4-3 vote. State v.

Veney, 120 Ohio St.3d 1423, 2008 Ohio 6166, 897

N.E.2d 655 (2008).

The opinions of the Ohio Supreme Court and Ohio

Court of Appeals are included in the appendix, as are

the two entries of the Ohio Supreme Court denying

reconsideration.

JURISDICTIONAL STATEMENT

This petition for writ of certiorari was timely filed

within ninety days of the Ohio Supreme Court’s en-

tries denying the prosecution’s timely motion for re-

consideration on December 3, 2008. Section 1257(a)

of Title 28 of the United States Code confers jurisdic-

tion on this Court to address whether the Ohio Su-

preme Court properly applied the federal due process

principles of Boykin v. Alabama, 395 U.S. 238 (1969),

and whether the Ohio Supreme Court erred in failing

to apply federal harmless-error review to the pur-

ported due process violation.

Respondent will likely contend that the Ohio Su-

preme Court based its ruling on an adequate and in-

dependent state ground by relying on Ohio Crim.R.

11(C)(2)(c), which requires that the court give an oral

beyond-reasonable-doubt advisement to a defendant

pleading guilty. But the Ohio Supreme Court’s ruling

did not satisfy this Court’s “plain statement” standard

by clearly relying on the state rule as an adequate

and independent basis for decision. Michigan uv.

Long, 463 U.S. 1032, 1044 (1983). The Ohio Supreme

Court’s chief focus was on Boykin and whether the

plea was “constitutionally infirm” in the absence of

an oral beyond-reasonable-doubt advisement.

The prosecution had specifically argued that the

oral advisement was not constitutionally required be-

cause it was not amongst the narrow list of three

Boykin rights and because Boykin does not require an

oral advisement at all, even for those three Boykir

rights. The Ohio Supreme Court summarized the

prosecution’s argument in paragraph 20 of its opinion

and then, in paragraph 21, “reject{[ed] the state’s

contention.”

Subsequent parts of the opinion confirm that the

Court believed that the omission of the oral beyond-

reasonable-doubt advisement was constitutional er-

ror. In paragraph 26, the Court concluded that, un-

der State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d

115 (1981), a plea is “constitutionally infirm” if the

oral plea colloquy omits one of the five constitutional

rights listed in Ohio’s Crim.R. 11(C)(2)(c). In para-

graph 24, the Court stated that, under Ballard and

Boykin, “a defendant must be apprised of certain con-

stitutional rights * * *,” and then held in footnote 3

that “the principles applicable to the ‘Boykin rights’

extend to all five rights listed in Crim.R. 11(C)(2)(c)

in Ohio.”

In paragraph 29, the Court quoted Boykin for the

proposition that “We cannot presume a waiver of

these * * * important federal rights from a silent

record,” omitting the key word “three” from the Boy-

kin phrase “these three important federal rights.”

The Court then stated that, “When the record con-

firms that the trial court failed to perform this duty,

the defendant’s plea is constitutionally infirm making

it presumptively invalid.”

In total, the Ohio Supreme Court cited or quoted

Boykin eight times in the key passages of paragraphs

24 through 30 in reaching the conclusion that the

plea was “constitutionally infirm.” Although the Court

also referred to Ohio Crim.R. 11(C)(2)(c), its ruling was

bottomed on a finding of a constitutional violation.

Any retreat by the Ohio Supreme Court from that

understanding would have meant that the appeal

must be decided in favor of the prosecution. The

Court’s requirement of per se reversal represented a

“structural error” resolution of the case, but, under

that Court’s prior cases, only constitutional error

could amount to “structural error” always requiring

reversal. “If an error in the trial court is not a consti-

tutional error, then the error is not structural error.”

State v. Colon, 118 Ohio St.3d 26, 2008 Ohio 1624,

885 N.E.2d 917, 4 21 (2008). The Court’s ruling re-

quiring per se reversal necessarily meant that it had

found a constitutional error. And given the frequent

reliance on Boykin, and the reference to “federal

rights” in paragraph 29, the Court’s ruling was a fed-

eral constitutional ruling.

In an effort to show an adequate and independent

state ground, respondent would likely contend that

the Ohio Supreme Court’s syllabus only referred to

Ohio’s Crim.R. 11(C)(2)(c). But the syllabus also re-

ferred to several federal constitutional rights, and so

the syllabus is not strictly tied to state law.

Moreover, Ohio no longer follows the “syllabus

rule.” See Zacchini v. Scripps-Howard Broadcasting

Co., 433 U.S. 562, 565-66 nn. 2 & 3 (1977) (discussing

the syllabus rule). The law of an Ohio Supreme

Court decision is now found in the syllabus “and its

text, including footnotes.” See Ohio Sup. Ct. Rules

for Reporting Opinions, § 1(B)(1). Thus, the syllabus

sets forth the automatic-reversal principle — “the de-

fendant’s plea is invalid” — and the text explains why

that is so, l.e., because the plea is “constitutionally

infirm.”

At a minimum, the Ohio Supreme Court’s syllabus

and opinion constitute an interwoven mixture of fed-

eral constitutional law and state criminal procedure.

The Court determined the issue of “strict compliance”

by reference to whether the plea was “constitution-

ally infirm.” “It appears to us that the state court

‘felt compelled by what it understood to be federal

constitutional considerations to construe * * * its own

law in the manner it did.” Long, 463 U.S. at 1044,

quoting Zacchini, 4383 U.S. at 568; see also, Ohio v.

Reiner, 532 U.S. 17, 20 (2001). This interwoven

constitutional ruling provides a sufficient basis for

this Court to grant a writ of certiorari.

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fourteenth

Amendment provides, as follows:

[Nlor shall any State deprive any person of life,

liberty, or property, without due process of law

kek

STATEMENT OF THE CASE

On July 16, 2004, respondent Thomas Veney was

indicted on counts of felonious assault and kidnap-

ping, both with one-year and three-year firearm spe-

cifications. On February 1, 2006, respondent pleaded

guilty to the stipulated lesser included offense of at-

tempted felonious assault, a third-degree felony, with

a three-year firearm specification.

At the plea hearing, respondent acknowledged his

signature on the Entry of Guilty Plea and acknowl-

edged that his attorney had reviewed his constitu-

tional rights with him.

THE COURT: Okay. Now, Mr. Vinie (sic), is that

your signature on this guilty plea form?

THE DEFENDANT: Yes, sir.

&& &

THE COURT: Now, relative to both of these

cases, you have reviewed your constitutional

rights with Mr. Ellis [defense counsel]?

THE DEFENDANT: Yes, sir.

(Plea and Stc. Tr. 3, 4)

The court orally addressed various constitutional

rights, including the right to jury trial, and respon-

dent said he understood that he was giving up those

rights. (Plea and Stc. Tr. 4-5) However, the court did

not expressly discuss with respondent the legal re-

quirement that such a trial would require the prose-

cution to prove its case beyond a reasonable doubt.

The Entry of Guilty Plea signed by respondent did

discuss that right, stating, as follows:

I understand that my guilty plea to the crime

specified constitute(s) both an admission of guilt

and a waiver of any and all constitutional, statu-

tory, or factual defenses with respect to such

crime and this case. I further understand that

by pleading “Guilty”, J waive a number of tmpor-

tant and substantial constitutional, statutory and

procedural rights, which include, but are not li-

mited to, the right to have a trial by jury, the

right to confront witnesses against me, to have

compulsory subpoena process for obtaining wit-

nesses in my favor, to require the State to prove

my guilt beyond a reasonable doubt on each

crime herein charged at a trial at which I cannot

be compelled to testify against mysclf, and to ap-

peal the verdict and rulings of the trial Court

made before or during trial, should those rulings

or the verdict be against my interests. (Empha-

sis added)

Counsel also certified in the Entry that he had coun-

seled defendant to the best of his professional ability

as to the facts and law and that defendant was

“act[ing] knowingly, voluntarily, and intelligently in

such matter.”

At the subsequent sentencing hearing, the court

imposed a two-year sentence for the third-degree fe-

lony and the mandatory consecutive three-year

prison term for the firearm specification. (Plea and

Ste. Tr. 13)

On appeal, respondent argued that the plea was

invalid under Ohio Crim.R. 11(C)(2)(c) because the

trial court failed to orally advise respondent of the

beyond-reasonable-doubt burden of proof. (Defense

Brief, at pp. 3-7) Respondent contended that a stan-

dard of “strict compliance” should apply, which would

require automatic reversal for a violation of the rule.

(Id.)

The prosecution opposed that argument, contend-

ing that a standard of “substantial compliance”

should apply because the oral beyond-reasonable-

doubt advisement was not required by constitutional

standards and was only required by the rule. (Prose-

cution Brief, at pp. 3-7) The prosecution repeatedly

noted that the advisement was not constitutionally

required. (/d. at pp. 4-5) The prosecution cited, inter

alia, a previous Ohio Supreme Court decision recog-

nizing that an oral advisement of the beyond-

reasonable-doubt right “is not required by Boykin

** *” (Ud. at p. 4, quoting State v. Sturm, 66 Ohio

St.2d 483, 484 n. 2, 422 N.E.2d 8538, 854 n. 2 (1981))

In invoking a “substantial comphance” standard,

the prosecution was contending that the defense

must show prejudice. (Prosecution Brief, at p. 4)

Given the Entry of Guilty Plea approved by respon-

dent, and given his oral acknowledgement that he

had discussed his constitutional rights with counsel,

the prosecution contended that respondent had not

shown prejudice. (Jd. at p. 5)

In its 2-1 ruling, the Ohio Court of Appeals deter-

mined that the issue of “strict compliance” turned on

whether the oral advisement required by the Ohio

rule was a “critical constitutional requirement.”

Court of Appeals Opinion, at {| 7. The court con-

cluded that the advisement was a constitutional re-

quirement, that a strict-compliance standard there-

fore applied, and that the plea must be reversed

without any assessment of prejudice. /d. at 9] 15, 16.

In the prosecution’s appeals to the Ohio Supreme

Court, the prosecution reiterated its contention that

the advisement was not constitutionally required and

therefore that a substantial compliance standard

should apply. The prosecution argued that the right

to proof beyond a reasonable doubt was not a Boykin

right. (Prosecution Merit Brief, at pp. 6-9, 11-14, 22;

Reply Brief, at pp. 5, 6) The prosecution further con-

tended that, even if the beyond-reasonable-doubt

right was a Boykin right, Boykin did not require a

specific oral advisement; the Entry of Guilty Plea was

enough constitutionally. (Prosecution Merit Brief, at

pp. 14-15; Reply Brief, at pp. 5-6) As stated in the

prosecution’s merit brief:

The beyond-reasonable-doubt standard is simply

not among the narrow list of three Boykin rights,

and a specific beyond-reasonable-doubt oral ad-

visement would not be constitutionally required.

Written plea documentation, such as that in-

volved in the present case, is sufficient to satisfy

the Boykin constitutional standard of providing

evidence in the record of a knowing, voluntary,

and inteliigent plea.

(Prosecution Merit Brief, at pp. 14-15)

Because the error was a mere violation of the rule,

the prosecution argued for “substantial compliance”

review and contended that, under such review, there

was no prejudice shown. (Prosecution Merit Brief, at

pp. 8-9) The prosecution relied heavily on this

Court’s decision in United States v. Vonn, 535 U.S. 55

(2002), which recognized that the entire record

should be reviewed in determining whether

unobjected-to plea-advisement error requires rever-

sal. (Prosecution Merit Brief, at pp. 16-17)

The prosecution contended that the failure to give

the oral advisement was not “structural error” be-

cause the error was not constitutional in nature and

because the error did not make it impossible to con-

duct a harmless-error review. (Prosecution Merit

Brief, at pp. 21-22; Reply Brief, at pp. 6-11) The

prosecution contended that any error was harmless.

(Prosecution Merit Brief, at p. 25; Reply Brief, at pp. 2,

14)

Respondent contended that the failure to give the

oral advisement was constitutional in nature, (De-

fense Merit Brief, at pp. 11, 17), and that it was

structural error. (Jd. at pp. 16-17)

In its 4-3 ruling, the Ohio Supreme Court rejected

the prosecution’s constitutional arguments, found

that the plea was “constitutionally infirm,” and

adopted a “strict compliance” standard that

amounted to a rule of automatic reversal for the plea-

advisement error.

In the prosecution’s timely motion for reconsidera-

tion filed in both appeals on October 15, 2008, the

prosecution contended, inter alia, that the Ohio Su-

preme Court had erred in constitutionalizing the oral

beyond-reasonable-doubt advisement required by

Crim.R. 11(C)(2)(c), since the right to proof beyond a

reasonable doubt is not one of the Boykin rights and

since oral advisements are not required for Boykin

rights anyway. (Motion for Reconsideration, at pp. 3-

7) The prosecution also contended that the Ohio Su-

preme Court had failed to address the prerequisites

for treating error as “structural” error. (Id. at pp. 13-

15) The Ohio Supreme Court nevertheless denied the

motion for reconsideration.

ARGUMENT

I. THE DUE PROCESS STANDARD OF BOY-

KIN V. ALABAMA DOES NOT REQUIRE AN

ORAL ADVISEMENT OF A _ CONSTITU-

TIONAL RIGHT. WRITTEN PLEA DOCU-

MENTATION CAN BE SUFFICIENT TO AF-

FIRMATIVELY DISCLOSE THAT THE

DEFENDANT WAS AWARE THAT HE WAS

WAIVING THE PERTINENT CONSTITU-

TIONAL RIGHTS.

The Ohio Supreme Court’s constitutionalization of

Ohio’s state-law oral-advisement requirement creates

a substantial conflict with decisions of other courts

and even with prior decisions of the Ohio Supreme

Court itself. Even if the presumption of innocence

were a Boykin right, the Ohio Supreme Court failed

to recognize that Boykin would not require an oral

advisement of that right.

The Ohio Supreme Court had previously recog-

nized that “specific oral interrogation” is not constitu-

tionally required for even the original three Boykin

rights.

Even though, as stated in Crim. R. 11(C)(2), trial

courts should in every cause ascertain the valid-

ity of waivers, of constitutional and _ non-

constitutional rights, by specific oral interroga-

tion of the defendant, there is no constitutional

mandate that such be done. Numerous authori-

ties have refused to ipso facto invalidate a guilty

plea merely because the trial court failed to con-

duct a full colloquy with the defendant with re-

gard to each of his rights, or because the court

accepted a written document from the defendant

as evidence that he had been apprised of and

knowingly waived his constitutional rights.

State v. Billups, 57 Ohio St.2d 31, 36-37 & nn. 3 & 4,

385 N.E.2d 1308, 1311-12 & nn. 3 & 4 (1979) (some

emphasis added; collecting cases); State v. Stone, 43

Ohio St.2d 163, 165, 331 N.E.2d 411, 413 (1975)

(“The Boykin decision did not specifically require that

a defendant’s rights be enumerated and explained by

the trial court in all cases in order for a waiver to be

knowing and voluntary.”).

In addition to creating a conflict with its own prior

decisions, the Ohio Supreme Court created a conflict

with a strong body of national case law. “[T]he new

element added in Boykin was the requirement that

the record must affirmatively disclose that a defen-

dant who pleaded guilty entered his plea understan-

dingly and knowingly.” Wilkins v. Erickson, 505 F.2d

761, 763 (9th Cir. 1974), quoting Brady v. United

States, 397 U.S. 742, 747-48 n. 4 (1970). The ques-

tion is whether the record as a whole shows the vo-

luntary and intelligent nature of the plea; “[S]pecific

articulation of the Boykin rights is not the sine qua

non of a valid guilty plea.” Wilkins, 505 F.2d at 763,

764,

As early as 1976, the Maryland Court of Appeals

properly observed that “[mJany courts, both federal

and state, have reached the same conclusion as to

Boykin’s meaning.” Davis v. State, 278 Md, 103, 116,

361 A.2d 113, 121 (1976) “Boykin does not require

specific reference to and waiver of the three rights

** *” Id. The Maryland court also found it

significant that some states had retreated from their

initial holdings that a specific oral enumeration was

required, /d. at 117-18, 361 A.2d at 121. By 1992,

the California Supreme Court concluded that the

weight of authority was “overwhelming” in rejecting

any interpretation of Boykin that would require a

specific oral articulation of the Boykin rights.

Howard, 1 Cal.4th at 1175, 824 P.2d at 1339.

As things now stand, several federal circuit courts

and state courts of last resort have rejected the view

that specific oval advisements are required under

Boykin.

Ist Circuit: United States v. Ward, 518 F.3d 75,

83, 84, 86 (ist Cir. 2008) (“A specific script, a set

of magic words, or even certain types of inquiries

are not required.”; totality of record is reviewed,

including documents; “Boykin does not constitu-

tionalize Rule 11 for state plea proceedings.”).

3rd Circuit: //ill v. Beyer, 62 F.3d 474, 481 (3rd

Cir. 1995) (“[t]he failure to specifically articulate

Boykin rights * * * is not dispositive if the

circumstances otherwise establish that the plea

was constitutionally acceptable.”).

4th Circuit: Wade v. Coiner, 468 F.2d 1059, 1060

(4th Cir. 1972) (“state judges may choose to

engage in the colloquy mandated for their federal

colleagues by Rule 11, but there is nothing in

Boykin that requires them to do so.”),

5th Circuit: McChesney v. Henderson, 482 F.2d

1101, 1106, 1110 (5th Cir. 1973) (“there is no re-

quirement that there be express articulation and

waiver of the three constitutional rights referred

to in Boykin”).

6th Circuit: Fontaine v. United States, 526 F.2d

514, 516 (6th Cir. 1975) (collecting cases; “Boykin

does not require separate enumeration of each

right waived and separate waivers as to each.”).

7th Circuit: United States v. Wagner, 996 F.2d

906, 913 (7th Cir. 1993) (“A failure to advise the

defendant of the rights specified by Boykin does

not necessarily invalidate the plea.”) (internal

citations omitted).

8th Circuit: Todd v. Lockhart, 490 F.2d 626, 628

n. 1 (8th Cir. 1974) (“we agree that Boykin does

not require the express articulation and waiver

of these three rights at the time the plea is

entered.”).

9th Circuit: Wilkins, 505 F.2d at 763, 764.

10th Circuit: Stinson v. Turner, 473 F.2d 913,

915-16 (10th Cir. 1973) (“we do not believe that

Boykin requires the enumeration of rights and

the multiple waivers contended for by appellant.”).

Lith Circuit: United States v. Simmons, 961 F.2d

183, 187 (11th Cir. 1992) (“This Circuit, however,

has construed Boykin to require only that courts

establish a record that generally reveals

affirmative awareness of the consequences of a

guilty plea.”; internal quotation marks omitted).

Alaska: Barrett v. State, 544 P.2d 830, 833-834

(Alaska 1975).

California: Howard, 1 Cal.4th at 1175, 824 P.2d

at 1339.

Colorado: People v. Wade, 708 P.2d 1366, 1369

(Colo. 1985) (“Boykin did not require a specific

waiver of even the three constitutional rights

highlighted in the Boykin opinion.”).

Idaho: State v. Colyer, 98 Idaho 32, 35-36, 557

P.2d 626, 629-30 (1976).

Illinois: /n re Beasley, 66 Ill.2d 385, 392, 362

N.E.2d 1024, 1027 (1977).

Indiana: Dewitit v. State, 755 N.E.2d 167, 171

(Ind. 2001).

Maryland: Davis, 278 Md. at 116, 361 A.2d at 121.

Massachusetts: Commonwealth v. Morrow, 363

Mass. 601, 604, 296 N.E.2d 468, 472-73 (1973).

Minnesota: State v. Propotnik, 299 Minn. 56, 57-

58, 216 N.W.2d 637, 638 (1974).

North Dakota: State v. Storbakken, 246 N.W.2d.

78, 83-84 (N.D. 1976).

South Carolina: State v. Lambert, 266 S.C. 574,

579, 225 S.E.2d 340, 342 (1976).

South Dakota: State v. Beckley, 742 N.W.2d 841,

844 (S.D. 2007).

Tennessee: Blankenship v. State, 858 S.W.2d

897, 904 (Tenn. 1993).

Washington: Wood v. Morris, 87 Wash.2d 501,

508, 554 P.2d 1032, 1036 (1976).

Consistent with the foregoing cases, this Court has

characterized the holding of Boykin in terms of

whether the record provided adequate evidence of

waiver, not whether an oral advisement had been

given. In Dominguez-Benitez, 542 U.S. at 84 n. 10,

this Court cited Boykin for the proposition that,

“when the record of a criminal conviction obtained by

guilty plea contains no evidence that a defendant

knew of the rights he was putatively waiving, the

conviction must be reversed.” Certiorari review is

warranted here so that this Court can precisely deli-

neate the limited reach of the Boykin decision.

Review would also overturn the Ohio Supreme

Court’s constitutionalization of its criminal rule. The

Ohio Supreme Court’s ruling has the effect of ele-

vating the violation of a state oral-advisement rule to

the level of federal constitutional error. But, as the

prosecution had pointed out, a “mere error of state

law’ is not a violation of due process, Engle v. Isaac,

456 U.S. 107, 121 n. 21 (1977), especially a mere vi-

olation of Ohio’s Crim.R. 11. Riggins v. McMackin,.

935 F.2d 790, 794-95 (6th Cir. 1991). Certiorari re-

view would clarify that state courts should not ele-

vate their state-law oral-advisement requirements

into federal constitutional law under Boykin.

Il. AS A MATTER OF DUE PROCESS UNDER

BOYKIN, THE RECORD NEED ONLY AF-

FIRMATIVELY DISCLOSE THE WAIVER OF

THREE CONSTITUTIONAL RIGHTS: THE

RIGHT AGAINST COMPELLED SELF-IN-

CRIMINATION, THE RIGHT TO JURY

TRIAL, AND THE RIGHT TO CONFRONT

WITNESSES.

In adding the presumption of innocence to the list

of Boykin rights, the Ohio Supreme Court overlooked

a number of post-Boykin cases from this Court, each

of which recognizes that Boykin is limited to the

three rights mentioned therein.

As stated in Godinez v. Moran, 509 U.S. 389, 397

n. 7 (1993), “[a] criminal defendant waives three

constitutional rights when he pleads guilty: the

privilege against self-incrimination, the right to a

jury trial, and the right to confront one’s accusers.”

(Emphasis added) In United States v. Ruiz, 536 U.S.

622, 628-29 (2002), the Court cited Boykin and stated

that, “[w]hen a defendant pleads guilty he or she, of

course, forgoes not only a fair trial, but also other ac-

companying constitutional guarantees” because

“pleading guilty implicates the Fifth Amendment pri-

vilege against self-incrimination, the Sixth Amend-

ment right to confront one’s accusers, and the Sixth

Amendment right to trial by jury.” See also, United

States v. Mezzanatto, 513 U.S. 196, 201 (1995)

(“guilty plea waives privilege against compulsory self-

incrimination, right to jury trial, and right to con-

front one’s accusers’); Parke v. Raley, 506 U.S. 20, 29

(1992) (“guilty plea constitutes a waiver of three con-

stitutional rights”). As these statements show, this

Court has not expanded the list of three Boykin

rights.

Due process does not require that a plea colloquy

address every constitutional right or every potential

defense. As this Court has recognized, “Our decisions

have not suggested that conscious waiver is neces-

sary with respect to each potential defense relin-

quished by a plea of guilty. Waiver in that sense is

not required.” United States v. Broce, 488 U.S. 563,

573 (1989). As confirmed by Ruiz, 536 U.S. at 629,

“the Constitution, in respect to a defendant’s aware-

ness of relevant circumstances, does not require com-

plete knowledge of the relevant circumstances, but

permits a court to accept a guilty plea, with its ac-

companying waiver of various constitutional rights,

despite various forms of misapprehension under

which a defendant might labor.”

In requiring an oral beyond-reasonable-doubt ad-

visement as a constitutiona! matter, the Ohio Court

of Appeals relied on a dissent from a denial of a peti-

tion for writ of certiorari in Johnson v. Ohio, 419 U.S.

924 (1974), in which the dissenters opined that the

three Boykin rights were illustrative and not exhaus-

tive. However, “[w]hile some members of the U.S.

Supreme Court have suggested that the Boykin list is

not exhaustive, they have not prevailed.” White v.

State, 497 N.E.2d 893, 897 (Ind. 1986). It is notewor-

thy Fed.R.Crim.P. 11 does not explicitly require a

beyond-reasonable-doubt oral advisement.

An extension of Boykin beyond the three listed trial

rights to include other trial rights would create a

cumbersome constitutional procedure. A criminal de-

fendant has many constitutional trial rights, includ-

ing the right to testify, the right to be present, the

right to counsel, the right to a public trial, and on

and on. Due process simply does not require that a

plea colloquy address every constitutional trial right

or every potential defense. “[T’Jhere is no require-

ment that a defendant be presented with a laundry

list of constitutional rights that are waived by a plea

of guilty or that he make a separate waiver of each

for the purpose of the record.” Lyles v. State, 745

S.W.2d 567, 568 (Tex. App. 1988).

Insefar as the presumption of innocence is con-

cerned, other courts have concluded that a beyond-

reasonable-doubt advisement is not constitutionally

required. United States v. Nelson, 1991 U.S. App.

Lexis 30002 (9th Cir. 1991) (“neither Boykin nor any

subsequent Supreme Court or Ninth Circuit case re-

quires such an explanation before a defendant pleads

guilty.”); State v. Aranda, 574 P.2d 489, 490 (Ariz.

App. 1978) (“Boykin * * * does not require it”); Wade,

708 P.2d at 1369-70 (no specific advisement of burden

of proof constitutionally required); Colyer, 98 Idaho at

33 n.1, 557 P.2d at 627 n. 1; People v. Saffold, 465

Mich. 268, 281, 631 N.W.2d 320, 328 (2001) (“Al-

though we continue to recognize the importance of

the presumption of innocence, we decline to elevate it

to the status of the Boykin/Jaworski rights.”).

Certiorarl review 1s warranted to determine

whether Boykin will be limited to the three constitu-

tional rights listed therein or whether that list must

be expanded to include other constitutional trial

rights.

Il. THE LACK OF AN ORAL ADVISEMENT

DOES NOT AMOUNT TO STRUCTURAL

ERROR REQUIRING AUTOMATIC REVER-

SAL. OTHER PARTS OF THE RECORD, IN-

CLUDING THE DEFENDANT’S WRITTEN

PLEA, CAN SHOW THAT THE DEFENDANT

WAS AWARE OF THE PRESUMPTION OF

INNOCENCE.

“Reversal for error, regardless of its effect on the

judgment, encourages litigants to abuse the judicial

process and bestirs the public to ridicule it.” Neder v.

United States, 527 U.S. 1, 18 (1999) (quoting Traynor,

The Riddle of Harmless Error). “There is danger that

the criminal law will be brought into contempt--that

discredit will even touch the great immunities as-

sured by the Fourteenth Amendment—if gossamer

possibilities of prejudice to a defendant are to nullify

a sentence pronounced by a court of competent juris-

diction in obedience to local law, and set the guilty

free.” Snyder v. Massachusetts, 291 U.S. 97, 122

(1934). “[I]t is of vital importance to the system of

criminal justice that guilty pleas not be lightly set

aside on fanciful arguments that exalt form over sub-

stance * * *.” United States v. Akinsola, 105 F.3d

331, 332-33 (7th Cir. 1997).

This Court’s decision in United States v. Vonn sup-

ports the view that a flawed plea colloguy does not

automatically require reversal. In Vonn, the perti-

nent rule required the court to advise the defendant

of his right to counsel at a trial, but the district court

had failed to give an oral advisement. The issue was

“whether a defendant who lets Rule 11 error pass

without objection in the trial court must carry the

burdens of Rule 52(b) or whether even the silent de-

fendant can put the Government to the burden of

proving the Rule 11 error harmless.” Vonn, 535 US.

at 58. The Vonn Court concluded that “a silent de-

fendant has the burden to satisfy the plain-error rule

and that a reviewing court may consult the whole

record when considering the effect of any error on

substantial rights.” Id. at 59, 73-74.

In light of Vonn, which recognized the applicability

of harmless-error and plain-error doctrines, the Ohio

Supreme Court should have followed the Vonn analy-

sis and concluded that any constitutional plea-

advisement error would not automatically require

reversal.

The Ohio Supreme Court’s ruling amounted to a

determination that plea-advisement error is “struc-

tural error.” But “{t]he omission of a single Rule 11

warning without more is not colorably structural.”

Dominguez-Benitez, 542 U.S. at 81 n. 6.

The omission of an oral advisement does not meet.

the general requirements to qualify as “structural er-

ror.” Most constitutional errors can be harmless, and

there is a strong presumption that constitutional er-

ror will be subject to harmless-error analysis. Neder,

527 U.S. at 8. “[W]e have found an error to be ‘struc-

tural’ and thus subject to automatic reversal, only in

a ‘very limited class of cases.” Jd. at 8, quoting John-

son uv. United States, 520 U.S. 461, 468 (1997).

“Those cases, we have explained, contain a defect af-

fecting the framework within which the trial

proceeds, rather than simply an error in the trial

process itself. Such errors infect the entire trial

process, and necessarily render a trial fundamentally

unfair. Put another way, these errors deprive defen-

dants of basic protections without which a criminal

trial cannot reliably serve its function as a vehicle for

determination of guilt or innocence * * * and no

criminal punishment may be regarded as fundamen-

tally fair.” Neder, 527 U.S. at 8-9 (citations and in-

ternal quotation marks omitted).

The omission of an oral advisement does not neces-

sarily render the plea-taking process fundamentally

unfair. The execution of a written plea of guilty can

provide a reliable substitute showing that an oral ad-

visement would have made no difference. See Do-

minguez-Benitez, 542 U.S. at 85 (plea agreement

“tends to show that the Rule 11 error made no differ-

ence to the outcome here.”); Akinsola, 105 F.3d at

334. Other proceedings in the same case could show

that the defendant was already advised of the matter

that would have been covered by the advisement.

See, e.g., Vonn, 535 U.S. at 75. Other circumstances,

such as undisputed or overwhelming evidence of guilt

or an eagerness to accept a plea bargain, could show

that an oral advisement would have had no effect on

the defendant’s decision to plead guilty. See

Dominguez-Benitez, 542 U.S. at 85 (‘iat is hard to see

here how the warning could have had an effect on

Dominguez’s assessment of his strategic position.”).

In the end, the absence of the advisement does not

necessarily “infect” the entire plea-taking process so

as to make it impossible to have a knowing, volun-

tary, and intelligent plea. There is no reason to make

advisement error “structural” and thereby immune to

all harmless-error review. Courts can address the

issue on a case-by-case basis to determine whether

the omission of the advisement was harmless. See

Neder, 527 U.S. at 14.

Respondent contended in the Ohio Supreme Court

that his approval of the Entry of Guilty Plea “does

not demonstrate that the defendant necessarily read

or understood the plea form.” But courts should not

be required to indulge such speculation. Respondent

acknowledged that he signed the Entry and that his

counsel had reviewed his constitutional rights with

him. By approving the Entry, respondent was ac-

knowledging, inter alia, that:

e “I rave reviewed the facts and law of my case

with my counsel.”

e “TJ understand that my guilty plea to the crime

specified constitutes both an admission of guilt

and a waiver of any and all constitutional, sta-

tutory, or factual defenses with respect to such

crime and this case.”

e “I further understand that by pleading ‘Guilty’,

| waive a number of important and substantial

constitutional, statutory, and procedural rights

* &

e TI understand that the Court upon acceptance

of my plea(s) of ‘Guilty’ may proceed with

judgment and sentence.” (Emphasis added)

Any constitutional error in failing to give an oral

advisement regarding the presumption of innocence

was harmless, and the Ohio Supreme Court should

have so held. Instead, the Court disregarded the

strict criteria for finding an error to be “structural”

and imposed an unwarranted automatic-reversal

rule. Certiorari review is warranted.

CONCLUSION

In light of the foregoing, petitioner respectfully re-

quests that this Court grant the petition for writ of

certiorar1.

Respectfully submitted,

RON O’BRIEN

FRANKLIN COUNTY

PROSECUTING ATTORNEY

STEVEN L. TAYLOR

Counsel of Record

ASSISTANT PROSECUTING ATTORNEY

373 South High Street, 13th Floor

Columbus, Ohio 43215

(614) 462-3555

Counsel for Petitioner

APPENDIX

APPENDIX A

OHIO SUPREME COURT OPINION

APPEAL from and CERTIFIED by the

Court of Appeals for Franklin County

No. 0O6AP-523, 2007-Ohio- 1295.

THE STATE OF OHIO,

Appellant,

VENEY,

Appellee.

RENDERED OCTOBER 9, 2008

MOYER, C.J.

Once again, we are asked to clarify the duties of

the trial court in accepting pleas to felony charges

and to determine the consequences of the trial court’s

failure to comply with Crim.R. 11. The first issue is

what level of compliance is required of the trial court

when it advises a defendant of the state’s burden to

prove guilt béyond a reasonable doubt at trial before

accepting a plea of guilty or no contest. The second

issue 1s whether a failure to advise the defendant of

this right is subject to harmless-error review under

Crim.R. 52.' We affirm the judgment of the court of

' The certified question accepted asks whether a trial court

must strictly comply with the Crim.R. 11 requirement that it

inform the defendant that by entering a felony plea, the

appeals, holding that trial courts must strictly com-

ply with all parts of Crim.R. 11(C)(2)(c) in conducting

plea colloquies and that a trial court’s failure to in-

form a defendant of any right in that subsection in-

validates the plea.

I. Case Background

Appellee, Thomas L. Veney, was indicted on one

count of felonious assault in violation of R.C. 2903.11

and one count of kidnapping in violation of R.C.

2905.01 along with two firearm specifications as a re-

sult of a 2004 event involving his wife, Nicole. As

stated by the prosecutor at the plea hearing, Veney

had come home from a night of drinking on July 8,

2004, and accused Nicole of sleeping with his cousin.

Veney pulled out a loaded gun while in the bedroom,

held it on Nicole, and threatened to shoot her. Nicole

was lying next to her seven-year-old daughter at the

time. The argument eventually moved downstairs,

where Veney fired a shot into the wall. Nicole then

ran out of the house, and Veney followed her. Nicole

saw Veney point the gun at her and heard him fire

several more shots. Nicole was able to run to a

nearby business to seek help. Nicole’s account was

corroborated by neighbors who heard the shots and

saw Veney holding a gun.

defendant waives the right to have the state prove guilt beyond

a reasonable doubt. We also accepted the state’s discretionary

appeal, which offers two related propositions of law: (1) “A

substantial compliance standard applies to the advisement

required by Crim.R 11(C)(2)(c) regarding the state’s burden of

proving guilt beyond a resanable doubt at trial” and (2) “ the

failure to give the beyond-reasonable-doubt oral advisement

required by Crim.R 11(C)(2)(c) is subject to harmless-error

review and does not always require reversal.”

Veney initially entered a not-guilty plea to all

charges but later entered guilty pleas to the lesser

included offense of attempted felonious assault and

one firearm specification. The other count and fire-

arm specification were dismissed. The trial court ac-

cepted the pleas, found Veney guilty, and sentenced

him to two years for felonious assault and three years

on the firearm specification for an aggregate prison

term of five years. Veney appealed, asserting that his

plea was invalid because the trial court had failed to

explain the nature of the charges and failed to inform

him that the state had to prove him guilty beyond a

reasonable doubt at trial.

The Tenth District Court of Appeals reversed the

judgment of the trial court because the trial court did

not strictly comply with Crim.R. 11(C)(2)(c) when it

failed to orally inform Veney that by entering a guilty

plea he waived his constitutional right to have his

guilt determined beyond a reasonable doubt at trial.

State v. Veney, 10th Dist. No. O6AP-523, 2007-Ohio-

1295, 4 16.* The court of appeals va. ated the plea and

remanded the case to the trial court for further pro-

ceedings. Id.

The court of appeals certified its judgment as being

in conflict with the judgments in State v. Scott (1996),

113 Ohio App.3d 401, 406-407, 680 N.E.2d 1297;

State v. Cogar (Oct. 20, 1993), Summit App. No. CA-

16234, 1993 WL 413651; and State v. Shinkle (Aug.

18, 1998), Scioto App. No. 98CA2560, 1998 WIT.

546074. We accepted the certified question “|[w]hether

a trial court must strictly comply with the require-

* The court of appeals did not consider Veney’s claim that he

had not understood the nature of his charges. Veney, 2007-Ohnio-

1295, 916, fn. 4.

ment in Crim.R. 11(C) that it inform the defendant

that by entering a plea, the defendant waives the

right to have the state prove guilt beyond a reason-

able doubt.” State v. Veney, 114 Ohio St.3d 1423,

2007-Ohio-2904, 868 N.iE.2d 678. We also accepted

the two propositions of the state within its discre-

tionary appeal. 114 Ohio St.3d 1425, 2007-Ohio-2904,

868 N.E.2d 679.

In summary, the state argues that (1) the trial

court need only substantially comply with the duty to

advise the defendant of the state’s obligation to prove

the defendant guilty beyond a reasonable doubt at

trial, (2) a flawed plea colloquy does not require

automatic reversal, (3) Crim.R. 52 guides the court of

appeals as it determines the consequences of the er-

ror being reviewed, and (4) under either a harmless-

error or plain-error analysis, Veney’s plea survives as

a knowing, intelligent, and voluntary plea. Veney re-

sponds that the trial court’s failure to orally advise

him of the state’s burden of proof as required by

Crim.R. 11(C)(2)(c) is constitutional error affecting a

substantial right that automatically invalidates his

plea.

IIT. Legal Analysis

We have clearly stated, “When a defendant enters

a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on

any of those points renders enforcement of the plea

unconstitutional under both the United States Con-

stitution and the Ohio Constitution.” State v. Engle

(1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450. The

United States Supreme Court has held that a know-

ing and voluntary waiver of the right to jury trial, the

right against compulsory self-incrimination, and the

right to confront one’s accusers cannot be inferred

from a silent record. Boykin v. Alabama (1969), 395

U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. Crim.R.

11 was adopted in 1973, giving detailed instruction to

trial courts on the procedure to follow when accepting

pleas.

A. Crim.R. 11(C) Requirement for Plea Colloquy

Crim.R. 11(C) governs the process that a trial court

must use before accepting a felony plea of guilty or no

contest. With respect to the required colloquy,

Crim.R. 11(C)(2) provides:

“In felony cases the court may refuse to accept a

plea of guilty or a plea of no contest, and shall

not accept a plea of guilty or no contest without

first addressing the defendant personally and

doing all of the following:

“(a) Determining that the defendant is

making the plea voluntarily, with under-

standing of the nature of the charges and of

the maximum penalty involved, and, if ap-

plicable, that the defendant is not eligible for

probation or for the imposition of community

control sanctions at the sentencing hearing.

“(b) Informing the defendant of aid deter-

mining that the defendant understands the

effect of the plea of guilty or no contest, and

that the court, upon acceptance of the plea,

may proceed with judgment and sentence.

“(c) Informing the defendant and determin-

ing that the defendant understands that by

the plea the defendant is waiving the rights

to jury trial, to confront witnesses against

him or her, to have compulsory process for

obtaining witnesses in the defendant’s favor,

and to require the state to prove the defen-

dant’s guilt beyond a reasonable doubt at a

trial at which the defendant cannot be com-

pelled to testify against himself or herself.”

Before accepting a guilty or no-contest plea, the

court must make the determinations and give the

warnings required by Crim.R. 11(C)(2)(a) and (b) and

notify the defendant of the constitutional rights hsted

in Crim.R. 11(C)(2)(c). Although the constitutional

and nonconstitutional portions of this colloquy are

categorized separately, we have not always distin-

guished between the two when examining the ade-

quacy of the court’s colloquy with a defendant. In

State v. Caudill (1976), 48 Ohio St.2d 342, 346, 2

O.0.3d 467, 358 N.E.2d 601, we noted that the provi-

sions of Crim.R. 11(C) must “be scrupulously and

literally heeded.” Two standards have developed,

however, depending upon which type of right is

alleged to have been the subject of the court’s error in

advising the defendant.

B. Substantial Compliance with

Crim.R. 11(C)(2)(a) and (b)

Although we had initially insisted on strict compli-

ance with Crim.R. 11(C), we began to draw a distinc-

tion between the notification of constitutional rights

and the other information required to be in the collo-

quy in State v. Stewart (1977), 51 Ohio St.2d 86, 5

0.0.3d 52, 364 N.E.2d 1163. In Stewart, we held that

with respect to the nonconstitutional notifications re-

quired by Crim.R. 11(C)(2)(a) and 11(C)(2)(b),

substantial compliance is sufficient. Id.

Qhio’s substantial-compliance standard was fur-

ther developed in State v. Strawther (1978), 56 Ohio

St.2d 298, 10 0.0.3d 420, 383 N.E.2d 900; State v.

Billups (1979), 57 Ohio St.2d 31, 11 O.0.3d 156, 385

N.E.2d 1308; State v. Ballard (1981), 66 Ohio St.2d

473, 20 0.0.3d 397, 423 N.E.2d 115; and State v.

Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474.

We explained: “Substantial compliance means that

under the totality of the circumstances the defendant

subjectively understands the implications of his plea

and the rights he is waiving. Furthermore, a defen-

dant who challenges his guilty plea on the basis that

it was not knowingly, intelligently, and voluntanily

made must show a prejudicial effect.” (Citations

omitted.) Id. at 108, 564 N.E.2d 474. To demonstrate

prejudice in this context, the defendant must show

that the plea would otherwise not have been entered.

Id.

We have also clarified that in reviewing the totality

of the circumstances, a court must determine

whether the defendant understood the consequences

of waiver. State v. Griggs, 103 Ohio St.3d 85, 2004-

Ohio-4415, 814 N.E.2d 51, 4] 12. Because (1) Griggs

had confessed and had signed a written guilty-plea

form and (2) Griggs and his counsel assured the court

that he was aware of the rights he was waiving, we

determined that the trial court had substantially

complied with Crim.R. 11, even though the trial court

did not orally advise Griggs that accepting the plea

was a complete admission of guilt. Id. at 16, 19.

Our precedent, therefore, establishes that a defen-

dant must show prejudice before a plea will be va-

cated for a trial court’s error involving Crim.R. 11(C)

procedure when nonconstitutional aspects of the col-

loquy are at issue.

C. Strict Compliance with Crim.R. 11(C)(2)

(c)—Notification of Constitutional Rights

Despite the evolution of substantial compliance as

a standard for the court’s nonconstitutional notifica-

tions and determinations required by Crim.R.

11(C)(2)(a) and (b), the same is not true for the con-

stitutional rights within Crim.R. 11(C)(2)(c). In Bal-

lard, we reaffirmed Caudill’s holding that strict, or

literal, compliance was required when constitutional

rights are involved. 66 Ohio St.2d at 479, 20 O.0.3d

397, 423 N.E.2d 115. Noting that the preferred pro-

cedure is for the trial court to use the language in

Crim.R. 11(C), we also stated, “However, failure to

[literally comply] will not necessarily invalidate a

plea. The underlying purpose, from the defendant’s

perspective, of Crim.R. 11(C) is to convey to the de-

fendant certain information so that he can make a

voluntary and intelligent decision whether to plead

guilty.” Id. at 479-480, 20 0.0.3d 397, 423 N.E.2d

115.

Crim.R. 11(C)(2)(c) requires that the defendant be

advised of the right to a jury trial, the right to con-

front one’s accusers, the privilege against compulsory

self-incrimination, the right to compulsory process to

obtain witnesses, and the right to require the state to

prove guilt beyond a reasonable doubt. The first three

are the three constitutional rights originally identi-

fied in Boykin v. Alabama, 395 U.S. at 2438, 89 S.Ct.

1709, 23 L.Ed.2d 274. We recognized notification of

the right of compulsory process to obtain witnesses as

a fourth constitutional right in Ballard. 66 Ohio

St.2d 473, 20 0.0.3d 397, 423 N.E.2d 115, at para-

graph one of the syllabus.

Although the right to be proven guilty by the state

beyond a reasonable doubt is one of the five rights

included within Crim.R. 11(C)(2)(c), we have never

expressly accorded it the same stature as the other

four. In fact, in a footnote we suggested that the ex-

planation of the prosecution’s burden of proof should

be treated differently, subject to a standard of sub-

stantial, rather than strict, compliance. State uv.

Sturm (1981), 66 Ohio St.2d 483, 484, 20 0.0.3d 403,

422 N.E.2d 853, fn. 2. Because of this, the state ar-

gues that a trial court need only substantially comply

with the obligation to advise a defendant of the

prosecution’s burden of proof because the right is not

specified in Boykin as one that is constitutionally re-

quired.

Yet, as the United States Supreme Court held the

year after Boykin, the right to have the state prove

guilt beyond a reasonable doubt is a constitutionally

protected right of an accused. Jn re Winship (1970),

397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368. We

therefore reject the state’s contention and instead

hold that the duty to advise the defendant of the

right to have guilt proven by the state beyond a rea-

sonable doubt is among the duties of Crim.R.

11(C)(2)(c) with which the court must strictly comply.

D. Consequences of the Court's Failure to

Strictly Comply

Having found that a court must strictly comply

with Crim.R. 11(C)(2)(c) when advising a defendant

of all five constitutional rights listed, we answer the

certified question in the affirmative. Our answer to

the certified question does not, however, address the

consequences of the court’s failure to comply. The

state maintains that even if the trial court must

strictly comply with Crim.R. 11(C)(2)(c) by informing

Veney of the prosecution’s burden of proof beyond

10a

reasonable doubt, the court’s error need not auto-

matically lead to vacation of the conviction and plea.

We disagree.

To properly frame this issue, we must review Bal-

lard, which marked the first time that we explicitly

made the connection between the strict compliance

standard and the constitutional rights in Crim.R.

11(C)(2)(c); it provides valuable insight into how the

standard works in practice.

In Ballard, we cited Boykin v. Alabama (1969), 395

U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274, for

the principles that a defendant must be apprised of

certain constitutional rights ° before his or her plea

may be considered intelligent and voluntary and that

plain error results when a trial court fails to explain

those rights. Ballard, 66 Ohio St.2d at 476—477, 20

QO.0.3d 397, 423 N.E.2d 115.

However, we found a split of authority on the issue

of “whether the complete omission of a Boykin consti-

tutional right alone is cause to nullify a guilty plea.”

Ballard at 477, 20 0.0.3d 397, 423 N.E.2d 115.

Some courts held that the “failure to mention, in any

manner, a Boykin right does not necessarily result in

an involuntary and unknowing guilty plea”; others

“held that for a guilty plea to be voluntarily and in-

telligently entered, the defendant must be informed

that he is waiving his Boykin rights.” Id. at 477-478,

20 0.0.3d 397, 423 N.E.2d 115.

We adopted the latter view: “[A] guilty plea is con-

stitutionally infirm when the defendant is not in-

3 In view of our holding in this case, the principles applicable

to the “Boykin rights” extend to all five mghts listed in Crim.R.

11(C)(2)(c) in Ohio.

lla

formed in a reasonable manner at the time of enter-

ing his guilty plea of his [Boykin rights].” (Emphasis

added.) Ballard at 478, 20 0.0.3d 397, 423 N.E.2d

115. We then crystallized this concept in the syllabus

with unarguably mandatory language: “Prior to ac-

cepting a guilty plea from a criminal defendant, the

trial court must inform the defendant that he is waiv-

ing his [Boykin rights].” (Emphasis added.) Id. at

paragraph one of the syllabus.

This requirement is tempered only slightly by the

second paragraph of the syllabus: “Failure to use the

exact language contained in Crim.R. 11(C), in in-

forming a criminal defendant of his [Boykin rights],

is not grounds for vacating a plea as long as the re-

cord shows that the trial court explained these rights

in a@ manner reasonably intelligible to that defen-

dant.” (Emphasis added.) Ballard at 473, 66 Ohio

St.2d 473, 20 0.0.3d 397, 423 N.E.2d 115, at para-

graph two of the syllabus, modifying State v. Caudill

(1976), 48 Ohio St.2d 342, 346, 2 0.0.3d 467, 358

N.E.2d 601. With that holding, we recognized that a

trial court can still convey the requisite information

on constitutional rights to the defendant even when

the court does not provide a word-for-word recitation

of the criminal rule, so long as the trial court actually

explains the rights to the defendant.

We look to the record to determine whether a trial

court strictly complied with this duty. Id. at 481, 20

0.0.3d 397, 423 N.E.2d 115. Following this rule, we

upheld Ballard’s plea even though the trial court

failed to specifically mention the right to a jury trial

by name, because the °*ial court did inform Ballard

that “neither the Judge nor the jury” could draw any

inference if Ballard refused to testify and that he

“was entitled to a completely fair and impartial trial

12a

under the law.” Id. at 479, 481, 20 O.0.3d 397, 423

N.E.2d 115, fn. 7.

Thus, pursuant to the strict-compliance standard

set forth in Ballard, the trial court must orally in-

form the defendant of the rights set forth in Crim.R.

11(C)(2)(c) during the plea colloquy for the plea to be

valid. Although the trial court may vary slightly from

the literal wording of the rule in the colloquy, the

court cannot simply rely on other sources to convey

these rights to the defendant. “We cannot presume a

waiver of these * * * important federal rights from a

silent record.” Boykin, 395 U.S. at 2438, 89 S.Ct. 1709,

23 L.Ed.2d 274. When the record confirms that the

trial court failed to perform this duty, the defendant’s

plea is constitutionally infirm, making it pre-

sumptively invalid. See Ballard, 66 Ohio St.2d at

481, 20 0.0.3d 397, 423 N.E.2d 115; State v. Griggs,

103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51,-

4] 12.

In the present case, it is undisputed that the trial

court plainly failed to orally inform Veney of his con-

stitutional right to require the state to prove his guilt

beyond a reasonable doubt. This failure to strictly

comply with Crim.R. 11(C)(2)(c) renders Veney’s plea

invalid. We therefore affirm the holding of court of

appeals in this regard and remand the matter to the

trial court for further proceedings.

III. Conclusion

We hold that a trial court must strictly comply with

Crim.R. 11(C)(2)(c) and orally advise a defendant be-

fore accepting a felony plea that the plea waives (1)

the right to a jury trial, (2) the right to confront one’s.

accusers, (3) the right to compulsory process to obtain

witnesses, (4) the right to require the state to prove

l3a

guilt beyond a reasonable doubt, and (5) the privilege

against compulsory self-incrimination. When a trial

court fails to strictly comply with this duty, the de-

fendant’s plea is invalid.

We answer yes to the certified question and agree

with the court of appeals that the trial court must

strictly comply with Crim.R. 11 in advising a defen-

dant of constitutional rights. Because the trial court

did not inform Veney that he had a right to be found

guilty only upon proof beyond a reasonable doubt, it

failed to strictly comply with Crim.R. 11(C)(2)(c), and

his plea is therefore invalid.

Judgment affirmed and cause remanded.

PFEIFER, O'CONNOR, and O'DONNELL, JuJ.,

concur.

LUNDBERG STRATTON, LANZINGER, and

CUPP, JJ., concur in part and dissent in part.

LANZINGER, J., concurring in part and dissenting

in part.

I agree with the portion of the syllabus that man-

dates that trial courts when conducting plea

colloquies must strictly comply with all parts of

Crim.R. 11(C)(2)(c), including informing defendants

of the right to be found guilty only upon proof beyond

a reasonable doubt; I disagree with the portion of the

syllabus that addresses the consequence of lack of

strict compliance. I respectfully dissent from the

majority's holding that a trial couct’s failure to

strictly comply with Crim.R. 11(C)(2) <) requires

vacation of the plea and conviction without regard to

contrary evidence in the record that the plea was

entered knowingly and voluntarily despite the trial

court’s omission.

l4a

We have held that when a trial judge fails to ex-

plain the constitutional rights set forth in Crim.R.

11(C)(2)(c), the guilty or no-contest plea is invalid

“under a presumption that it was entered involuntar-

ily and unknowingly.” (Emphasis added.) State v.

Griggs, 103 Ohio St.3d 85, 2004- Ohio-4415, 814

N.E.2d 51, 4 12; see also State v. Nero (1990), 56 Ohio

St.3d 106, 107, 564 N.E.2d 474, citing Boykin v. Ala-

bama (1969), 395 U.S. 238, 242-243, 89 S.Ct. 1709,

23 L.Ed.2d 274. This court has never held, until to-

day, that this presumption is irrebuttable or that a

plea must be vacated automatically when the trial

court fails to orally explain a constitutional right.

Interpreting Crim.R. 11(C)(2)(c) as an absolute rule

for which imperfect compliance should lead to

automatic vacation of a plea in every case, the ma-

jority cites State v. Ballard (1981), 66 Ohio St.2d 473,

20 O.0.3d 397, 423 N.E.2d 115. But the majority’s

reasoning seems lo conflate a single missing oral ad-

visement with the entirely “silent record” referred to

Boykin. Ballard, however, did not foreclose an

opportunity for the state to show that there was not a

silent record with respect to Boykin rights. Just as

the state is allowed to rebut the presumption that a

warrantless search is unreasonable, the state should

be able to rebut the presumption that a plea is

involuntary and unknowing when a judge fails to

mention one of the constitutional rights in Crim.R.

11(C)(2)(c).

Allowing the state the chance to rebut the pre-

sumption that a defendant has been prejudiced does

not confuse the standards of strict compliance and

substantial compliance. The majority recognizes that

under the substantial compliance standard, the bur-

den is on the defendant to show prejudice, which

15a

means showing that the plea would otherwise not

have been entered. Nero, 56 Ohio St.3d at 108, 564

N.E.2d 474. A requirement that the state must over-

come a presumption of the plea’s invalidity when the

trial court does not strictly comply with Crim.R.

11(C)(2)(c) means that the defendant need no longer

show prejudice. The state simply is given an

opportunity to establish through other evidence in

the record that the defendant’s plea was still knowing

and voluntary.

Moreover, federal law does not require automatic

vacation of a plea when a judge fails to inform a de-

fendant of a Boykin right. See United States v. Vonn

(2002), 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90.

Instead, the court reviews the entire record—includ-

ing written pleas and statements that constitutional

rights were reviewed with counsel—to determine

whether the defendant understood and voluntarily

made the plea. Id. at 74-75. We have previously

adopted this rule in Ballard, acknowledging that

when determining whether a defendant was ade-

quately informed of his constitutional rights under

Crim.R. 11, a court must review the entire record and

not just determine whether the judge recited the ex-

act: language in the rule. 66 Ohio St.2d 473, 20

0.0.3d 397, 423 N.E.2d 115, paragraph two of the

syllabus.

To the contrary, the majority opinion now con-

cludes that strict compliance brooks no mistakes by

the trial court in its oral recitation to the defendant.

In its overly formalistic view of the consequences of

failure to strictly comply with Crim.R. 11(C)(2)(c), the

majority rejects the idea that a trial court may have

informed a defendant of his or her constitutional

rights in a number of ways, including written mate-

16a

rials that have been reviewed with counsel and

signed and assented to in open court. The trial court’s

overriding obligation has been to ensure that a plea

is entered in a knowing and intelligent manner. State

v. Engle (1996), 74 Ohio St.3d 525, 527, 660 N.E.2d

450. But now, the majority’s holding will invalidate

convictions based upon a single omitted oral state-

ment of the trial court, no matter whether the record

would otherwise show that the defendant understood

and appreciated all constitutional rights being

waived.

Because I disagree with these draconian conse-

quences as applied to every case, J respectfully

dissent. I would hold that the state should have an

opportunity to rebut the presumption that a plea is

unknowing and involuntary with evidence from the

entire record.

LUNDBERG STRATTON and CUPP, JJ., concur in

the foregoing opinion.

Ron O’Brien, Franklin County Prosecuting Attor-

ney, and Steven L. Taylor, Assistant Prosecuting

Attorney, for appellant.

Yeura R. Venters, Franklin County Public De-

fender, and John W. Keeling, Assistant Public De-

fender, for appellee.

l7a

APPENDIX B

IN THE COURT OF APPEALS OF OH:O

TENTH APPELLATE DISTRICT

—_—--

No. 06AP-523

STATE OF OHIO,

Plaintiff-Appellee,

THOMAS L. VENEY,

Defendant-Appellant.

RENDERED ON MARCH 22, 2007

APPEAL from the Franklin County

Court of Common Pleas.

KLATT, J.

Defendant-appellant, Thomas L. Veney, appeals

from a judgment of conviction entered by the Frank-

lin County Court of Common Pleas. Because the trial

court did not comply with Crim.R. 11(C) when it

accepted appellant’s guilty plea, we vacate that judg-

ment and remand the matter for further proceedings.

On July 16, 2004, a Franklin County Grand Jury

indicted appellant for one count of felonious assault

in violation of R.C. 2903.11 and one count of kidnap-

ping in violation of R.C., 2905.01.

18a \

Both counts contained firearm § specifications

pursuant to R.C. 2941.141 and R.C. 2941.145. The

charges arose out of a domestic altercation between

appellant and his wife. Appellant initially entered a

not guilty plea to the charges but subsequently

entered a guilty plea to the lesser included offense of

attempted felonious assault in violation of R.C.

2923.02 as it relates to R.C. 2903.11, and one firearm

specification.’ The trial court accepted appellant’s

guilty plea, found him guilty, and sentenced him

accordingly.

Appellant appeals and assigns the following error:

THE TRIAL COURT ERRED WHEN IT FAILED

TO COMPLY WITH CRIM.R. 11 BY INFORM.-

ING THE DEFENDANT THAT THE STATE

WAS REQUIRED TO PROVE HIS GUILT

BEYOND A REASONABLE DOUBT AND BY

FAILING TO PROPERLY ASCERTAIN THAT

THE DEFENDANT UNDERSTOOD THE NA-

TURE OF THE CHARGE AGAINST HIM.

In his lone assignment of error, appellant contends

that the trial court did not comply with Crim.R. 11(C)

when it failed to inform him that by entering a guilty

plea, he waived his constitutional right to have his

guilt determined under a “beyond a reasonable doubt

standard” at trial. We agree.

Crim.R. 11(C) governs the procedure that a trial

court must follow before accepting a guilty plea.

Crim.R. 11(C)(2) provides:

In felony cases the court may refuse to accept a

plea of guilty or a plea of no contest, and shall

' The trial court dismissed the remaining charges and

specifications.

19a

not accept a plea of guilty or no centest without

first addressing the defendant personally and

doing all of the following:

(a) Determining that the defendant is mak-

ing the plea voluntarily, with understanding

of the nature of the charges and of the

maximum penalty involved, and, if applica-

ble, that the defendant ts not eligible for

probation or for the imposition of community

control sanctions at the sentencing hearing.

(b) Informing the defendant of and deter-

mining that the defendant understands the

effect of the plea of guilty or no contest, and

that the court, upon acceptance of the plea,

may procved with judgment and sentence.

that the defendant understands that by the

plea the defendant is waiving the rights to

jury trial, to confront witnesses against him

or her, to have compulsory process for ob-

taining witnesses in the defendant’s favor,

and to require the state to prove the

defendant’s guilt beyond a reasonable doubt

at a trial at which the defendant cannot. be

compelled to testify against himself or

herself.

A trial court need only substantially comply with

the non-constitutional requirements contained in

Crim.R. 11(C)(2)(a) and (b). State v. Thomas, Frank-

lin App. No. 04AP-866, 2005-Ohio-2389, at 410.

Substantial compliance means that under the totality

of the circumstances the defendant subjectively

understands the implications of his plea and the

20a

rights he is waiving. Id., quoting State v. Nero (1990),

56 Ohio St.3d 106, 108.

Although substantial compliance is sufficient for

the non-constitutional requirements set forth in

Crim.R. 11(C)(2)(a) and (b), a trial court must strictly

comply with the critical constitutional requirements

referenced in Crim.R. 11(C)(2)(c). State v. Carter,

Franklin App. No. 0O2AP-294, 2002-Ohio-6967, at 4/11,

citing State v. Ballard (1981), 66 Ohio St.2d 473,

paragraph one of the syllabus. Although strict com-

phance is required, a trial court is not required to use

the exact language contained in Crim.R. 11(C)(2)(c).

The trial court must explain the constitutional rights

that a defendant waives by pleading guilty in a man-

ner reasonably intelligible to the defendant. Ballard,

paragraph two of the syllabus; State v. Anderson

(1995), 108 Ohio App.3d 5, 11; Carter. What consti-

tutes the critical constitutional requirements in

Crim.R. 11(C)(2)(c) hes at the heart of the issue pre-

sented in the case at bar.

It is undisputed that the trial court failed to inform

appellant that by entering a guilty plea he waived his

constitutional right to have his guilt determined un-

der a “beyond a reasonable doubt” standard, a right

listed in Crim.R. 11(C)(2)(c). The state contends,

however, that the trial court must only substantially

comply with the requirement that it inform appellant

of this constitutional right, and that it did so when

appellant signed a guilty plea form indicating that he

waived this right. We disagree.

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

S.Ct. 1709, the United States Supreme Court held

that before accepting a guilty plea, a trial court must

inform a criminal defendant of the constitutional

rights he waives by entering a guilty plea. Id. at 243.

2la

The rights identified in Boykin were: (1) the privilege

against compulsory selfincrimination, (2) the right to

trial by jury, and (3) the right to confront one’s accus-

ers. Id. These three constitutional rights are among

those listed in Crim.R. 11 (C)(2)(c). Therefore, a trial

court must strictly comply with the requirement that

it inform a defendant of these constitutional rights

prior to accepting a guilty plea. Ballard.

The right to have the state prove guilt beyond a

reasonable doubt is a constitutionally-protected right

of a criminal defendant. See Jn re Winship (1970),

397 U.S. 358, 364, 90 S.Ct. 1068; State v. Higgs

(1997), 123 Ohio App.3d 400, 406; Beachwood v. Bar-

nes (Oct. 25, 2001), Cuyahoga App. No. 78841

(O’Donnell, J., concurring). At the time Boykin was

decided, there was apparently some question re-

garding whether the reasonable doubt standard was

a constitutional right. See Winship; see, also, State uv.

Scott (1996), 113 Ohio App.3d 401, 406 (stating that

reasonable doubt standard was a statutory right).

The Court in Winship, however, made it clear that

the standard was constitutionally based. Id. at 364.

(“Lest there remain any doubt about the constitu-

tional stature of the reasonable-doubt standard, we

explicitly hold that the Due Process Clause protects

the accused against conviction except upon proof be-

yond a reasonable doubt * * *.”). The Court decided

Winship one year after it decided Boykin. If Winship

had been decided before Boykin, it is possible that the

constitutional right to have guilt proven beyond a

reasonable doubt may have been included in the

Boykin rights. See Barfell v. State (Ind.App.1979),

399 N.E.2d 377, fn. 11. In fact, the author of the

Boykin opinion later wrote that the right to have

guilt proved beyond a reasonable doubt is also in-

volved when a defendant enters a guilty plea. John-

22a

son v.Ohio (1974), 419 U.S. 924, 926, 95 S.Ct. 200

(Douglas, J., dissenting) (the three constitutional

rights identified in Boykin were illustrative and not

exhaustive). See, also, State v. Mallon (Dec. 17,

1999), Trumbull App. No. 98-T-0032 (noting that the

list of constitutional rights in Boykin were illustra-

tive, not exhaustive).

In Ballard, the Supreme Court of Ohio added a

fourth constitutional right that must be strictly ex-

plained to a defendant entering a guilty plea: the

right to compulsory process. Id. at paragraph one of

the syllabus. This constitutional right is the fourth of

the five constitutional rights listed in Crim.R.

11(C)(2)(c). The Ballard court noted that the consti-

tutional right to compulsory process was not named

in Boykin as a right that a trial court must explain to

a defendant. The court, however, reasoned that be-

cause the right to compulsory process was a trial

right guaranteed by the United States Constitution,

just like the trial rights named in Boykin, a trial

court must also inform a defendant of that constitu-

tional right prior to accepting a_ guilty plea,

notwithstanding the fact that it was not identified in

Boykin. Id. at fn. 4. It is well-established that a state

court may provide more constitutional safeguards

than federal courts. Higgs, at 406, citing Arnold uv.

Cleveland (1993), 67 Ohio St.3d 35, paragraph one of

the syllabus.

On the same day the Supreme Court of Ohio de-

cided Ballard, it also decided State v. Sturm (1981),

66 Ohio St.2d 483. Sturm also involved a trial court’s

obligation pursuant to Crim.R. 11 to advise a crimi-

nal defendant of constitutional rights waived by a

guilty plea. In that case, the court held that the trial

court failed to inform Sturm of his constitutional

23a

right to confront his accusers, a right expressly iden-

tified in Boykin. Therefore, the court vacated Sturm’s

plea and remanded the case.

In a footnote, however, the court noted that Sturm

also argued that his plea should be vacated because

the trial court failed to inform him of his right to

have his guilt determined under a beyond a reason-

able doubt standard. Id. at fn. 2. Although not the

basis of the court’s decision, the court stated that

“[w]jhile a trial court is required by Crim.R. 11(C) to

inform a defendant of this right, it is not required by

[Boykin]”. Id. Thus, the court reasoned, because

Boykin did not mention the constitutional right to

have guilt proven beyond a reasonable doubt, a trial

court would only have to substantially comply with

that requirement. Id., citing State v. Stewart (1977),

51 Ohio St.2d 86 (requiring only substantial compli-

ance with non-constitutional requirements of Crim.R.

11).

The reasoning expressed in footnote two of Sturm,

while only dicta, is inconsistent with the rationale

underlying the Boykin and SBallard decisions.

Crim.R. 11(C)(2)(c) identifies five constitutional

rights of which a trial court must inform a defendant

before accepting a guilty plea. Ballard expressly re-

quires a trial court to strictly explain four of these

constitutional rights to a defendant before accepting

a guilty plea, notwithstanding the fact that Boykin

did not expressly identify all four of these constitu-

tional rights. We see no rational basis for treating a

defendant’s constitutional right to have his or her

guilt determined under a beyond a reasonable doubt

standard any differently.

Accordingly, we hold that a trial court must strictly

comply with the constitutional requirements in

24a

Crim.R. 11(C)(2)(c) and explain all of the constitu-

tional rights listed in the rule that a defendant

waives by pleading guilty in a manner reasonably in-

telligible to the defendant, including the right to have

the state prove guilt beyond a reasonable doubt.

Higgs.* Other courts have reached the same conclu-

sion. See State v. Green, Mahoning App. No. 02CA-

217, 2004-Ohio-6371, at 411; State v. Sentch,

Cuyahoga App. No. 82581, 2003-Ohi0-5082, at 927;

Mallon, supra; State v. Givens (Sept. 16, 1982), Mont-

gomery App. No. 7774.°

In this case, the trial court failed to inform appel-

lant of his right to have his guilt d«.ermined under a

beyond a reasonable doubt standard. Thus, the trial

court did not strictly comply with the constitutional

requirements of Crim.R. 11(C)(2)(c) when it accepted

* For the reasons previously stated, we disagree with this

court’s analysis in State v. Ellis (June 20, 1996), Franklin App.

No. 95APA10-1399. In that case, this court considered whether

the trial court informed a defendant of the right to have guilt

proven beyond a reasonable doubt. This court, citing Sturm,

simply questioned whether the right was identified in Boykin,

and because it was not, required a trial court to substantially

comply with the rule. Identification of a right in Boykin is not

sufficient, per Ballard, to determine a trial court’s obligations

pursuant to Crim.R. 11(C)(2)(c). See, also, State v. Hines (May

23, 1995), Franklin App. No. 94APA10-1428 (requiring

substantial compliance).

* Other courts only require substantial compliance with the

requirement that a defendant he advised of the right to have the

state prove guilt beyond a reasonable doubt. See State v. Cogar

(Oct. 20, 1993), Summit App. No. CA-16234; State uv. Shinkle

(Aug. 12, 1998), Scioto App. No. 98CA2560; Scott, supra, at 406-

407.

25a

appellant’s guilty plea.* Appellant’s lone assignment

of error is sustained, and the judgment of the Frank-

lin County Court of Common Pleas is vacated. The

matter is remanded to the trial court for further pro-

ceedings.

Judgment vacated and cause remanded.

PETREE, J., concurs.

SADLER, P.J., dissents.

SADLER, P.J., dissenting.

I do not minimize the importance of informing a de-

fendant of the state’s burden of proving guilt beyond

a reasonable doubt. Clearly, if appellant had not

been informed of that burden at all during his sen-

tencing, vacation of his guilty plea would be required,

but that is not the case here. | disagree with the ma-

jority’s conclusion that the trial court was required to

strictly comply with Crim.R. 11 regarding the state’s

burden, and would instead apply the test of substan-

tial compliance to this case.

Neither the United States Supreme Court after its

decision in Boykin v.Alabama (1969), 395 U.S. 238,

89 S.Ct. 1709, 23 L.Ed.2d 274; nor the Ohio Supreme

Court after its decision in State v. Ballard (1981), 66

Ohio St.2d 473, 423 N.E.2d 115, has taken the oppor-

tunity to expand the list of critical constitutional

rights requiring strict adherence to Crim.R. 11(C) to

include the right to require the state to prove guilt

beyond a reasonable doubt. In fact, the Ohio Supreme

Court, albeit speaking by way of a footnote, has

stated that a court’s communication of the right to

have the state prove guilt beyond a reasonable doubt

* Because of this determination, appellant’s claim that he did

not understand the nature of the charges when he eniered his

guilty plea is moot. App.R. 12.

26a

is not subject to strict compliance with Crim.R. 11 un-

der Boykin. State v. Sturm (1981), 66 Ohio St.2d 483,

422 N.E.2d 853, at fn. 2.

Moreover, we have held in two cases that a trial

court’s failure to strictly comply with Crim.R. 11 by

informing a defendant of the right to have guilt proven

beyond a reasonable doubt does not establish that the

defendant’s guilty plea was not entered knowingly, in-

telligently, and voluntarily, thus applying a substan-

tial compliance test to a trial court’s compliance with

this requirement. State v. Ellis (June 20, 1996),

Franklin App. No. 95AP10-1399, LEXIS 2522; State v.

Hines (May 23, 1995), Franklin App. No. 94APA10-

1428, LEXIS 2175.

For those portions of Crim.R. 11 to which the sub-

stantial compliance test applies, the proper method for

analyzing the issue 1s whether, under the totality of

the circumstances, the defendant properly understood

the charges and the rights he was waiving, and

whether the defendant suffered any prejudice from the

trial court’s omission specifically informing appellant

of the right to have guilt proven beyond a reasonable

doubt. In this case, the plea form appellant signed did

identify the right to have guilt proven beyond a rea-

sonable doubt as one of the rights appellant was

waiving by signing the form. The record shows that

the trial court asked appellant if he had read the forin

and discussed it with his attorney, and that appellant

indicated he understood the rights he was waiving. |

believe this was sufficient to establish that appellant’s

plea was made knowingly, intelligently, and voluntarily.

Since I cannot join the majority’s conclusion that

appellant's plea was rendered involuntary by the pro-

cedure followed by the trial court in his sentencing, I

respectfully dissent.

27a

APPENDIX C

THE SUPREME COURT OF OHIO

Case No. 2007-0656

STATE OF OHIO

THOMAS L VENEY

RECONSIDERATION ENTRY

Franklin County

Filed December 3, 2008

Upon consideration of appellant’s expedited motion

for stay of the Court’s judgment and motion for re-

consideration,

It is ordered by the Court that the motions are de-

nied.

(Franklin County Court of Appeals; No. O6AP523)

/s/ Thomas J. Moyer |

THOMAS J. MOYER

Chief Justice

28a

APPENDIX D

THE SUPREME COURT OF OHIO

Case No. 2007-0657

STATE OF OHIO

Vv.

THOMAS L. VENEY

RECONSIDERATION ENTRY

Franklin County

Filed December 3, 2008

Upon consideration of appellant’s expedited motion

for stay of the Court’s judgment and motion for

reconsideration,

It is ordered by the Court that the motions are

denied.

(Franklin County Court of Appeals; No. O6AP523)

/s/ Thomas J. Moyer _

THOMAS J. MOYER

Chief Justice

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.