Opposition Brief — Ohio v. Veney (No. 08-1018)

Supreme Court, U.S

SILRENH

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| MAY 2 9 2008

|

In The

Supreme Court of the United States

The State of Ohio.

Petitioner,

Thomas L. Veney,

Respondent.

On Petition for Writ of Certicari to the

Supreme Court of Ohic

BRIEF FOR THE RESPONDENT IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Yeura R. Venters

Franklin County Public Defender

John W. Keeling

Assistant Public Defender

Counsel of Record

373 South High Street 12th Floor

Columbus, Ohio 43215

(614) 719-8783

Counsel for Respondent

ot wpannadeiaead

CFFICE OF THECLERK }

QUESTIONS PRESENTED

The respondent takes issue with petitioner’s list of questions

presented. It is the respondent's position that no constitutional questions are

presented. This is not a case, as suggested by petitioner, dealing with

whether or not Boykin v. Alabama, 395 U.S. 238 (1969), requires trial courts

to provide specific oral advisements and to obtain specific waivers regarding

constitutional rights waived by entering guilty pleas. This is a case dealing

with the enforcement of an Ohio law that requires the trial courts to

personally address and inform the defendants of these rights and to

determine that the defendants understand them. As such, no constitutiona!]

questions w hatsoever are presented herein.

TABLE OF CONTENTS

Page

QUESTIONS PRESEN EID :; csevsiesee pir astetieeaitieas wn rrsnivdess «ives

TABLE OF CONTIN Tibicxicciccses sraeeenanen MMMM aRIIEN Edcadeaiahaneas'viy «. 1

TABLE OF AUTHOR Pi iiss scconcciterseataatecansaei estes cacasesseves.s2 lil

JURISDICTIONAL STATEMENT .........-2-ereverseecevoess Eo ]

CONSTITUTIONAL PROVISIONS AND OHIO RULES 6

INVOLVED IN THE CASE

STATEMENT OF 'FHIE © Riteisscececeu sare cieeaeegsveceseserssess,.

ARGUMENT

PURSUANT TO A DULY PROMULGATED OHIO RULE OF

PROCEDURE, TRIAL COURTS, BEFORE ACCEPTING A

GUILTY PLEA, MUST PERSONALLY ADDRESS THE

DEFENDANT AND [NFORM HIM THAT BY ENTERING

THE PLEA THE DEFENDANT IS WAIVING HIS RIGHT TO

REQUIRE THE STATE TO PROVE HiS GUILT BEYOND A

REASONABLE DOUBT. THE TRIAL COURT MUST

FURTHER DETERMINE THAT THE DEFENDANT

UNDERSTANDS THIS ADMONITION. WHETHER OR NOT

THE DUKE PROCESS STANDARD OF BOYKIN V. ALABAMA

REQUIRES SUCH AN ORAL ADVISEMENT IS

IMMATERIAL TO THIS CASE BECAUSE OHIO LAW

EXPRESSLY REQUIRES IT.

RR OA oii a 5 on 8

CONCLUSION ..; <siccvessinsnnqeen pe alana eae anaeteaniancias acts 17

APPENDIX

OHTO RULE OR CRIMINAL PROCEDURE 11(€)......000........... A-1

OHIG v. VENEY, 120 OHIO ST.3d 176, (2008) at 427, §29......... \-2

TABLE OF AUTHORITIES

CASES

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

Chandler v. Florida, 449 ULS., at 570, 582-583

Dawud Majid Mu’min v. Virgina, 500 U.S. 415, 422, 111 S.C.

1899, 114 L.Ed.2d 493 (1991)

Dickerson v. United States, 530 U.S. 428, 429, 120 S.Ct. 2326,

147 L.Ed.2d 405, (2000)

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, (1970)

Ohio v. Veney, 120 Ohio St.3d 176, (2008) at £27, 929

Rice v, Sioux Culy Cemetery, 349 U.S. 70 (1955)

Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940,

71 L.Ed.2d 78, (1932)

CONSTITUTIONS

Due Process Clause of the Fourteenth Amendment

Modern Courts Amendment to the Ohio Constitution

Ohio Constitution Article TY, §5(B)

RULES

Ohio Crim.R. 1

Ohio Crim... 11(€)(2) 28,10

OTHER AUTHORITIES

Frontline: The Plea, June 17, at 9 P.M. on PBS, as

summarizedhttp://www.truthinjustice.org/the-plea htm

1 : oC eae ° . A, ; , . 4 , ‘Syne

Yocum. ‘Starting Over Not Easy after Wrongful Convictior,

Columbus Dispatea, December Z), LYS, § fh al <

il

Page

11,12

cn

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Ww

, 14, 30

THIS COURT HAS NO JURISDICTION

The respondent takes issues with the petitioner's claim that this Court has

jurisdiction to hear the issues presented by this case. This case represents nothing

more than the Ohio Supreme Court exercising its supervisory power over the lower

courts by enforcing a rule promulgated by the Ohio Supreme Court governing the

procedure the trial courts must follow when accepting pleas in criminal cases. Ohio

has a rule of procedure that requires courts to inform defendants of certain

constitutional rights they are waiving by pleading guilty. The Ohio Supreme Court

held that the trial courts must comply with this rule. Neither the rule nor its

enforcement offends any constitutional provisions.

Until 1968, when the Modern Courts Amendment to the Ohio Constitution

was adopted, Ohio court procedure was governed entirely by statute and case law.

The Modern Courts Amendment required the Ohio Supreme Court to “prescribe

rules governing the practice and procedure in all courts of the state.” Pursuant to

Ohio Constitution Article IV. §5(B), the Ohio Supreme Court promulgated the Ohio

Rules of Criminal Procedure “to be followed in all courts of this state in the exercise

of criminal jurisdicticn.’ The rules “shall be construed and applied to secure the

fair, impartial, speedy, and sure administration of justice. simplicity in procedure,

and the elimination of unjustifiable expense and delay.” See, Ohio Crim.R. 1.

This case called into question the construction and application of one of the

criminal rules the Ohio Supreme Court promulgated anc is also obligated to

enforce. Ohio Crim.R. 11(C)(2) sets forth the following pertinent guidelines for

guilty pleas in felony cases:

(2) 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 @ a

(c) Informing the defendant ard determining 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 defendant's

guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or

herself. [Bold emphasis added}

The Ohio Supreme Court took this case because of conflict and confusion

among the lower courts on how this provision shou!d be enforced. Some courts had

held that Crim.R. 11(C)(2}(c) had to be strictly complied with because 1t dealt with

informing the defendant of constitutional mghts. Other ccurts had held that strict

compliance was only required while informing defendants of certain constitutional

rights but that only substantial compliance was required with respect to the

inform the accused that he was waiving his ritht to have the state

obligation to

prove his guilt beyond a reasonable doubt.

In Ohio, stmet compliance does not mean that the exact words of the rule

must be used. It means that the record must show hat the triai court explained

these mghts in a manner reasonably intelligent to the defendan’. State v. Venevy,

120 Ohio St Sa 176, (2008) at 927. 929. Substantial compliance is a doctrine rehed

upon in Ohio to excuse the state when it does not comply with the law. Substantial

compliance is not a defense available to criminal defendants; it is a defense

available tu the state when the state fails to follow the very laws and rules that it

created and is charged with enforcing. It is a cuphemism for the “close enough for

government work” standarc. Substantial compliance means that the trial court

does not have to actually follow the rules and actually address and inform the

defendant of the rights as required by the rule. It is enough that a reviewing court

‘an speculate from the totality of the circumstances that the defendant understood

the rights that the trial court neglected to inform him of. [Id. at 415-16.]

The Ohio Supreme Court ruled in this case that

{G 31} We hold that a trial court must surictly comply

with Crim.R. 11(C)(2)(c) and orally advise a defendant before

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 guilt beyond a reasonable doubt, and (5) the

privilege against compulsory se-f- incrimination. When a trial

court fails to strictly comply with this duty, the defendant's plea

is invalid.

Thus this is a case where the Ohio Supreme Court, in ifs supervisory power

over the courts in Ohio, was called upon to interpret and enforce a rule of procedure

that it had properly promulgated. The Ohio Supreme Court held that the trial court

had to comply with the rule as it was written. The Ohio Supreme Court has the

jurisdiction and power to supervise the state courts of Ohio. This Court does not

hold such power and has never sought to exercise supervisory power over the state

courts in this manner. The only time that this Court intervenes is if the state

courts are enforcing rules of procedure that are repugnant to the Constitution or

federal Jaws.

Thus the basic jurisdictional question presented by the ruling herein is very

simple. The state is challenging the decision oy the Ohio Supreme Court that the

trial courts must actually comply with a state rule of procedure that requires trial

judges to personally address defendants and inform them that by pleading guilty

they are waiving certain constitutional rights, including the right to have the state

prove heir guilt beyond a reasonable doubt. How is suck a decision repugnant t

the Corstitution and what constitutional rights does such a holding violate?

Obvious’y stuies are free to adopt rules of procedure that are broader than those

reqwred by the Constitution and they are also free to adopt rules that are of no

constitutional sigmificance. This Court’s jurisdiction can be invoked only if such

rules or laws, or the enforcement thereof, are repugnant to the Constitution.

The Ohio Supreme Court's ruling did not offend any constitutional rights of

the defendant. Thus the question remaining is what constitutional mghts of the

state were offended by this ruling. The state has no constitutional right for the trial

court tv ignore the plain meaning of arule of law. There ts no constitutional nght of

the state to coerce guilty pleas by keeping criminal defendant as uninformed of

their legal rights ae possible. Even if a state rule or law provides protection beyond

that required y the Constitution, the sate cannot complain about such a rult

unless the rue actually violates the Constitution.

In Dickerson v. United States, 530 U.S. 428. 429. 120 S.Ct. 2326, 147 L.Ed.2d

405, (2000), this Court held that it “does not hold supervisory power over the state

courts, *** as to which its authority is limited to enforcing the commands of the

Constitution***.” In Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d

78, (1982), this Court held:

“Before a federa! court may overturn a conviction resulting from a

state trial...it must be established not merely that the [State's

action] is undesirable, erroneous, or even “universally

condemned,” but that it violated some right which was

guaranteed to the defendant by the Fourteenth Amendment.”

Absent such a constitutional! violation, it was error for the lower

courts in this case to order a new trial. Even if the Court of

Appeals believed, as the respondent contends, that prosecutorial

misbehavior would “reign unchecked” unless a new trial was

ordered, 1t had no authority to act as it did. Federal courts hold

no supervisory authority over state judicial proceedings and may

intervene only to cerrect wrongs of constitutional dirension.

Chandler v. Florida, 449 U.S., at 570, 582-583; Cupp vu Naughten,

supra, at 146. No such wrongs occurred here. Accordingly, the

judgment of the Court of Appeals is Reversed.

Likewise in Dawud Majid Mu'min v. Virgina, 500 U.S, 415, 422,111 S.Ct

1899, 114 L Ed.2d 493 (1991), this Court stated:

Our cases dealing with the requirements of voir dire are of two

kinds; those that were tried in federal courts, and are therefore

subject to this Court's supervisory power, [citations omitted] and

those that were tried in state courts with respect to which our

authority is limited to enforcing the commands of the United

States Consutution. See Turner ». Murray, 476 U.S. 28. 106 S.Ct

1683, 90 L.Fd.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96

S.Ct. 1017, 47 L.d.2d 248 (1976): and Ham v. South Carolina,

109 U.S. 524, 93 S.Cr. 848, 35 L.Ed.2d 46 (1973)

This Court has no jurisdiction to review state rules or laws under the claim

that such laws provide protections greater than those provided by the Uni:ed States

Constitution. States, of course, are free to enact such laws. This Court has

jurisdiction to intervene only to correct wrongs of constitutional dimension. This

Court has no jurisdiction to tell the state courts how it should enforce its procedural

rules as long as the enforcement does not violate any constitutional prohibitions

There are no constitutional prohibitions against a stute court enforcing a rule that

requires trial courts to advise a defendant that a guilty plea waives his right to have

the state prove his guilt beyond a reasonable doubt. The enforcement of such a rule

: not repugnant to the Constitution. In fact, many would conclude that such a rule

4

is very respectful of the Constitution

The petitioner claims that the constitution 1] provision involved in this case

the Due Process Clause of the Fourteenth Amendment which provides “nor shall

anv state deprive anv person f life, liberty, of property without due process of law

oi (Sc tition for Writ of Certiorar:., Constitu 10] 1} Provision Involved o 9

The Ohio Supreme Court’s ruling did nothing to violate the Due Pro Cla

The petitioners complaint is not that the Ohio Supreme Court aenied anyone du

process of law but that 1 provided too much due J ye hin

! }} I a siat rule « edu nd th il i } rad

intervene unless the enforcement violated a constitu Is] |

Constitutional Provisions and Olio Rules Involved in the Case

kes issue with this claim. There are no due process rights that allow

trial ju ige oO ignore a rule of law requiring them form a defendant of the

rights that are waived by a guilty plea. The state has no duce proce rivhts to kee}

a defendant uninformed of neghts when state law specifically provides that

def ndants must! ‘informed of these right

Thi ise onl volves the enforcement of Rule 0(C) of the Ohio Rul )

Cr minal Pro dure rhe rule et forth in the ippendx al pa

yeversed his conviction on the grounds that the trial caurt had failed to advise the

defendant of the state's obligation to prove his guilt bevond a reasonable doubt as

required by Ohio law. The Court of Appeals further certified the case w the Ohio

Supreme Court as a onfhict since there was a dispute among the appellate districts

of Ohio as to whether or not strict or substantial comphance to this rule was

required

The Ohio Supreme Curt accept “l the cuse as a conflict and ruled that the

tria! judges must strictly com] ly with the re juiremeni 1 Crm RR. DCW. mad

must explain all of the rigats hsted in the rule that a defendant waives bv pleading

ARGUMENT

PURSUANT TO A DULY PROMULGATED OHIO RULE OF

PROCEDURE, TRIAL COURTS, BEFORE ACCEPTING A

GUILTY PLEA, MUST PERSONALLY ADDRESS THI

DEFENDANT AND INFORM HIM THAT BY ENTERING

THE PLEA THE DEFENDANT IS WAIVING HIS RIGHT TO

REQUIRE THE STATE TO PROVE HIS GUILT BEYOND A

REASONABLE DOUBT THE TRIAL COURT MUST

FURTHER DETERMINE THAT THE DEFENDANT

UNDERSTANDS THIS ADMONITION, WHETHER OR NOT

THE DUE PROCESS STANDARD F ROYKIN \

\LABAMA REQUIRES SUCH AN ORAL ADVISEMENT IS

IMMATERIAL TO THIS CASE BECAUSE OHIO LAW

EXPRESSLY REQUIRES I1

Guilty plea proceedings are crucial to the administration of justice. Mest

convictions are obtained through guilty or no contest pleas. Generally, at leas: 95%

of felony convictions are obtained through such pleas.! In m:sdemeanor cases tae

percentage is even higher and approaches 99% in many municipal court systems.

Since approximately nineteen our of everv twenty felony convictions are obtained by

pleas instead of trials, the criminal justice system has a vested interest in making

sure that the plea process is conducted as fairly as possible.

There are those who evince little concern about the fairness of guilty plea

proceedings because, after all, if the persun pled guilty how unfair could any

resulting conviction be? These folds are also likely to be people with litle

understanding of the pressure that the criminal justice system brings to bear upon

innocent people to plead guilty and upon guilty people, who have been overcharged,

to plead to offenses greater than were actually commntted.

Some studies dealing with wrongful convictions have concluded that in

over haifof such cases the wrongfu! convictions were obtained as a result of coerced

confession or guilty pleas

Coerced guilty pleas are a problem in Ohio as wel! as the rest of the nation

An arucle in the Columbus Dispatch discussed wrongful convictions in several

prominent central Ohio cases. In 75% of the cases, the wrongful convictions had

heen ovtained through guilty pleas mstoad of trals.¢

Frontl.ne The Plea, June 17, at 9PM on PBS. as summarized hitp.www truthingustice org the-

plea him

V « aero *

Senerime Owe New Boyar n, Columbus [)spaten, December 2)

~

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1486 > * at 2

RECT AVAIL ARIE (NPV

Even guilty people face pressure to plead to charges that they are not

guilty of because they were overcharged or facing multiple counts for the same

conduct. They can be forced to enter pleas in order to minimize the consequences,

even if this means pleading to charges greater than actually were committed. Some

trial judges are known {o charge a trial tax or excessive rent for the courtroom to

those who lose.

The pressure on innocent peuple to plead guilty is immense. So 1s the

pressure of a guilty person to plead to charges greater than he actually committed

in order to avoid the consequences of trial. Ohio had recognized that injustice does

occur as a result of the tremendous pressure imposed upon people to plead guilty

and legal protections have been implemented to help ensure that guilty pleas are

entered voluntarily and knowingly.

The Ohio Supreme Court. in accordance with the power granted it by the

Ohio Constitution, promulgated rules to help ensure a degree of fairness when the

courts accept guilty pleas. Ghio Rule of Criminal Procedure 11(C)(2) sets forth the

following guidelines for guilty pleas in felony cases:

(2) In felony cases the court may refuse to accept a plea of guilty

or a plea of no cortest. 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 1s meking the plea

voluntarily, with understanding of the nature of the charges and

of the maximum penalty involved, and, if applicable, that the

defendant is not eligible for probaticn or for the imposition of

community contre! sanctions at the sentencing heanng

aul

co

(o) Informing the defendant of, and determining that the

defendant understands the effect of the plea of guilty or no

contast, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.

(c) Informing the defendant and determining 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 defendant's

guilt heyond a reasonable doubt at a trial at which the

defendant cannot be compellea to testify against himself or

herself. [Bold emphasis added]

Thus, even if Boykin v. Alabama did not require an oral advisement of

constitutional rights, as claimed by the petitioner, it does not matter because Ohio

law expressly requires it.

This matter was brought to the Ohic Supreme Court's attention because of

the issue of how this rule should be interpreted. Courts had held that the non-

constitutional rights provided for in the rule did not have to be strictly complied

with and that substantial compliance with respect to advising the defendants of the

non-constitulional rights could suffice to fulfil! the intent of the rule.

However an odd quirk developed in Ohio case law with respect to the

standard of compliance regarding the constitutional rights set forth in Ohio Crim.R.

1i(C\(2)ic). Some courts, including the Ohio Supreme Court, had held that strict

compliance was required by

the trial courts when advising the defendants o° the

aneatyt? canal moahre ho dotends 2 app wateiund hv nia: j ronite H wrAcor

constitutional ngnis the detendants were waiving DV pleading gullly. owever,

other courts treated the nghts a little differently. Some had held thar trial courts

only had to strictly comply with the rule with respect to some of the constitutional

11

rights and that substantial compliance was adequate with respect to the other

constitutional nights.

This rcasoning was based, in part, upon the fact that the courts had observed

that in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. (1969), the

Court had mentioned only three of the five hsted constitutional righus. The courts

noted that since Boykin had not specifically stated that the defendant should be

advised that a guilty plea is a waiver of his right to have the state prove him guilty

beyond a reasonable doubt, this right did not rise to the same level of dignity as the

other constitutional mghts listed in the rule and that substantial compliance with

this part of the rule was all that was required.

Other courts had rejected Uns reasoning by noting that at the time Boykin

was decided in 1969 there was some question about whether or not the right to have

the state prove guilt beyond a reasonable doubt was a federal constitutional nght

that extended to the states through the Due Process Clause. The courts a that

this issue was clearly resolved in Jn re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25

L.Ed.2d 368. (1970), when the Court held that this basic and fundamental federal

constitutional standard also applied to the states. The courts noted that it would

make no sense to hold that the courts had to strictly comply with the rule with

respect to some of the constitutional mghts but only had to substantially comply

with the admonitions regarding the other two constitutional mghts. The courts

reasoned that it made no sense to held that a person must he strictly informed that

he has a right to confront witnesses before his plea can be properly entered but that

12

the plea can be properly entered if the trial court fails to inform his that a guilty

plea is a waiver of his right to have a trial where the state must prove his guilt

beyond a reasonable doubt.

The Ohio Supreme Court held that it was going to apply the same standard of

enforcement to all of the constitutional nghts contained in the rule. The court held

in its syllabus and also at 4 31:

We hold that a tral court must strictly comply with Crim.R.

13(C)(2)(c) and orally advise a defendant hefore 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 nght to compulsory process to

obtain witnesses, (4) the right to require the state to prove 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 defendant's plea is invalid. (Crim.R.

11(C)(2)e), applied.)

Thus this case involves nothing more than the Ohio Supreme Court's

determination of how 2 state rule is co be interpreted, applied, and enforecd. This

does not become a constitutional issue unless the ruling or its application offends a

constitutional provision. As previously noted, the Ohio Supreme Court’s ruling did

not offend any constitutional provision. If anything, it acted with respect to

important constitutional rights.

The state has no constatutional right to keep defendants uninformed of their

constitutional rights that would trump the application of Ohio's proverly

promulgated rule of law. If the court had ruled that trial judges did not have to

strictly eemply wita the rule. then there would be an issue under existing case law

as to wether the defendant's constitutional rights were violated. But even if there

existed no censtitut‘onal rights regarding knowing and voluntary guilty pleas, the

state would be free to enact rules regarding the procedure to be followed when

accepting such pleas and the state could not argue that it had a constitutional right

not to follow the state law because the United States Constitution did not mandate

such a procedure.

REASONS FOR DENYING THE PETITION

As previously noted, the Ohio Supreme Court's decision requiring stric:

compliance with a portion of one of its rules of procedure dues not violate any

constitutional provision. Any due process argument would have to hinge upon the

premise that the strict compliance ruling places too much of a burden upon the tria!

courts of Ohio and would result in unfair or unjust outcomes offensive to the

interest of justice. This 1s just not the case.

It is not asking too much of trial courts, who have taken oaths to uphold and

enforce the law, to comply with a rather simple rule of procedure designed to impart

fairness into guilty plea proceedings. In many respects this case 1s not so much

about the rights of the arcused as it is ahout the fundamental process and the

dignity of the courts. The Ohio rule is simple. It states that the court shall inform

the deferndan: of five ymportant constitutional rights he is waiving by entering a

vuilty plea. There is nothing inherently difficult about complying with this rule. It

just requires simple reading irom a form that all judges have or could easily

acquire. A fourth grader could comply with the rule with a few munutes of train:ng.

If 2 judge gets easly confused or loses track of what he or she has read, the form

‘

could be modified to include check marks for each item. If up to 95% of felony

convictions are obtained through pleas and it is so simple to inform the defendants

of the critical rights they are waiving by entering the plea, why should the Ohio

Supreme Court, in its supervisory capacity, not enforce the rule? In the military,

even minor rules are enforced so that in critical situations orders will be followed.

This is just basic discipline. This is not a minor rule, ‘This is the rule by which

most felony convictions are obtained and where defendants waive their most

important constitutional rights and safeguards. It might be the single most

important rule to our criminal justice system g:ven the inherently coercive nature of

the plea process and the fact that almost all of the convictions are obtained through

this process.

Thus even if the state could show a constitutional violation, granting a writ of

certiorari ts stil! a matter of judicial discretion that will only be granted for

compelling reasons under Rule 10 o: the rules of this Court. The Ohio Supreme

Court held that trial courts should comply with the Ohio rule that requires the trial

courts to actually advise defendants that by entering a guilty plea they are giving

up (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

guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-

incrimination. The petitioner, the Great State of Ohio. is asking this Court to

mtervene and reieve the trial courts of this easily fulfilled obhgation, which it

clatms to be unconsututicnal, Assuming that it 1s unconstitutional for Ohio to

promulgate and erjorce such a rule of procedure, there is still no compelling reason

to consider this case. lt 1s no large burden for the trial courts to strictly comply with

this rule of law and most courts do it very simply and expeditiously.

The importance of the issues involved in a case is of major significance in

determining whether a writ of certiorari should issu. This Court does not have the

time to give full consideration to all cases presenting issues. It must necessarily

confine itself to those that reflect the more important legal problems within the

realm of its jurisdiction. The problems should ne “beyond the academic or episodic.”

Rice v. Sioux City Cemetery, 349 U.S. 70 (1953). Importance is a relative factor for

this Court to consider. Historically this Court has looked at the importance of the

case with respect to its impact upon society and its effect upon the development of

the law. If this Court refuses to grant certiorari what is the worst that will happen?

Just a few judges in Ohio, who have not been complying with a very simple

procedure, will have to start complying with the law. ‘There is no great or

compelling harm in having judges comply with simple rules of procedure designed

to safeguard fundamental constitutional rights.

Additionally, a writ of certiorari should not be granted in this case because

this matter 1s n grave danger of becoming moot or of losing its case or controversy

status. The respondent received a five-year prison sentence. He is still being

incarcerated un these charges and 1s being held without bail until this matter :s

resolved In Ohio, there is no statutory speedy trial rights fo lowing aa appeal,

accordimg to the state of Ohio and the judge involved in the case. This means that

every day that goes by, the interest the respondent has in prevailing herein and of

preserving his victory in the Ohiv Supreme Court is diminished.

The respondent originally wanted ww withdraw his plea because he felt that

he was not guilty of the charges because of the lack of any intent to actually cause

harm to his wife, an essential element of the crime. However, the respondent is

now in his fourth year of a five-year sentence. It is becoming dangerously close to

the point where it would be in the defendant’s best interest to have the orig.na!

sentence re-instated rather than to prevail and later go to trial and risk receiving a

substantially greater sentence (up to twenty-one years of actual incarceration. less

time served), if he lost. Thus if this Court did grant the writ, 1t would probably be

in the respondent’s best interest to lose so that he could have the ortg:nal sentence

re-instated rather than to go to trial and risk additional years of imprisonment

The state of Ohio has managed to keep the respondent incarcerated for well

over three years without a (mal and without a proper guilty plea proceeding. If this

Court grants this writ, the respondent will have no interest in prevailing and this

case will no longer have the adversarial nature required by the case or controversy

mandate

CONCLUSION

The petitioner went out of its way to obfuseate the fact that this case hinges

entirely upon the application of a state rule of procedure requiring trial courts to

actually inform cefendants of certain constitutional rights that a plea of guilty

waives. The Ohio Supreme Court ruled that trie} courts must strictly comply with

-his rule. The Ohio Supreme Court's decision rests eniirely upon independent stat

grounds. Thus even if a case could be made that these admonitions are not required

ier federal iaw. the Ohio rule of procedure still requires that the trial judge must

unde!

personally address the defendart and inform him of these rights. The

Writ of Certiorari should be denied

Respecttully submitted

Cit LAX wt

Job W. Keeling J

Yssistant Public Defender

‘ounsel of Record for Respondent

South Iligh Street, 12‘ Floor

Columbus, Ono 43215

(614) 719-8783

) )

itd

OO

RULE 9C) OF THE OHIO RULES OF CRIMINAL PROCEDURE

(C) Pleas of guilty and no contest in felony cases.

(1) Where in a felony case the defendant is unrepresented by counsel the

court sha]] not accept a plea of guilty or no contest unless the defendant, after

being readvised that he or she has the right to be represented by retained

counsel, or pursuant to Crim.R. 44 by appointed counsel, waives -his right

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of

no contest, and shal! net accept a plea of guilty or no contest without first

addressing the defendant persona!ly and doing al! of the following:

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant 1s not eligible for probation or

for the imposition of community contro! sanctions at the sentencing hearing.

(bh) Informing the defendant of and determining 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 determining 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

defendant's guilt beyond a reasonable doubt at a trial at which the defendant

cannot be compelled to testify against himself or herself.

A-1

Cite as State v. Verney, 120 Ohio St.34 176, 2008-Ohia $200

THE STATE OF OHLO, APPELLANT, v. VENEY, APPELLET

Cite as State v, Veney, 120 Ohio St.3d 176, 2008-Ohio-S200.,

{\ non? fy ; é

will ri le 4 4;

657 — Submitted Mav 7, 2008 - Decided

Octover » JOO’ )

D by the Court of Appeals for Franklin Cour

\P-523, 2007-Ohio- 129

SYLLABUS OF THE COURT

tnal court must stnetly com;

lefendant before accepting a felony lea that the | leu Waives (.) the ng

compulsory proce

ine I

ly with Com.R, L1Cu2 ye) and orally ads

ht to confront one’s accusers, (3) the mght t

to obtain witnesses, (4) the nent to require the state t

prove guilt beyond afr

easonable doubt, and (5) the privilege agaist

ompulsory self-incrimiunation. When a tial court fais to stnetly comply

vith this duty, the defendant's plea is invalid =(Cmm.K (CMI

applied )

MOYER, CU.

11} Once again. we are asked to clarily the duties of the tal court u

sccepting pleas to felony charges and t deiermine the consequences of the tna

court's failure to comply with Crim. 11. The first issue 1s What level o!

compliance is required of the trial coust when it advises a defendant of the stat

surden to preve guilt bes

guilty or no contest. The sé

yond area

“and

sonable doubt a’ tnal betore accepting a plea

issuc is W hethe! a failure tO advisc t} » detent ul

‘

January Tenn, 2008

{10} “(a) Determining that the defendant is making the plea voluntanly,

with understanding of ihe nature of the charges and of the maximum penalty

involved, and, if appliceble, that the defendant 1s not eligible for probat:on or for

the mpositicn of community control sanctions at the sentencing heanng

4€.11} “(b) Informing the defendant of and determming that the defendant

understands the effect of the plea of guilty or no contest, and that the court, upen

acceptance of the plea, may proceed with judgment and sentence

$412} “(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the mahts to jury trial, to

confront witnesses against him or her, to have compulsory process for obtaming

witnesses in the defendant’s favor, and to require the state to prove the

defendant's guilt beyond a reasonable doubt at a tral at which the defendant

cannot be compelled to testify against himself or herself.”

{4.13} Before accepting a guilty or no-contest plea, the court must make

the determinations and give the warnings required by Cnm.R. 11(C)(2){a} and (b)

and noufy the defendant of the constitutional nghts listed in Crim.R. 11(C}(2)(c).

Although the constitutional and nonconstitutional portions of this celloquy are

categonzed separately, we have not always distinguished between the two when

examining the adequacy of the court’s colloquy with a defendant. In Sraie v

Caudi/! (1976). 48 Ohio St.2d 342, 346, 2 0.0.3d 467, 358 N.E.2d 601, we noted

that the provisicns of Cnm.R. 11(C) must “be scrupulously and literally heeded.”

Two standards have developed, however. depending upon which type of mght 1s

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

B. Subsiantia!l Compliance with Crim.R. 11(C)2jfaj and (by

{414} Although we had initially insisted on strict compliance with

Cnm.R. 11(C). we began to draw a distinction between the notification

constitutional nght: and the other information required to be in the colloquy in

State v. Stewart (1977), $1 Ohno St.2d &6, § 0.0.3d 32, 364 N_E.2¢ 1163. In

A-6

Stewart, we held that with respect to the nonconsututional notifications required

by Crum.R. 11(C)(2)(a) and 11(C)(2)(b), substantial compliance is sufficient. Id.

f€ 15} Ohio’s substantial-compliance standard was further developed in

State v. Strawther (1978), 56 Ohio St.2d 298, 10 0.0.3d 420, 383 N.E.2d 900;

State vy. Billups (1979), 37 Ohio $1.24 31, 11 0.0.3d 150, 385 N.E.2d 1208; State

v. Ballard (1981), 66 Ohio St.2d 473, 20 0.0.34 397, 423 N_E.2d 115; and State

v. Nero (1990), 56 Obio 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 nghts he is

waiving. Furthermore, a defendant who challenges his guilty plea on the basis

that it was not knowingly, intelligently, and voluntarily 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

{€ 16} We have also clanfied that in reviewing the totality of the

circumstances, a court must determine whether the defendant understood the

consequences ol waiver. State v. Griggs, 103 Ohio St.3d 85, 2004-Ohi0-4415,

814 N.E.2d 51, § 12. Because (1) Gnggs 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 nghts he was waiving, we determined that the tnal court had

17

substantially complied with Cnm.R. 11, even though the trial court did not orally

advise Gnggs that accepting the plea was a complete admission of guil... Id. at 4

16, 19.

{4.17} Our precedent, therefore, establishes that a defendant must show

orejudice before a plea will be vacated for a trial court’s error involving Cnm.R

11(C) procedure when nonconstitutiona! aspects of the colloguy are al issue

Ww)»

January Term

Y Oopesne any ar vat

C Smet ¢ ompliance alli

> Crim R T1(C)(2)(e)—Notrfication of Constitutional

Rights

{4 18} Despite the evolution of substantial compliance as a standard for

the court’s nonconstitutional notifications and detcrmmations required by Crum.R.

11(C)(2)(a) and (b), the same is not te for the constitutional rights within

Crim.R. 11(C)(2){c). In Ballard, we reaffirmed Caudill’s holding that strict, or

literal, compliance was required when constitutional nghts are involved. 66 Ohio

St.2d at 479, 20 0.0.3d 397, 423 N_E.2d 115. Noting that the preferred procedure

is for the tial cuurt tw use the language im 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 Cnm.R. 11(C) 1s to

convey to the defendant certain information so that he can make a vouuntary and

intelligent decision whether to plead guilty.” Id. ai 479-480, 20 0.0.3d 397, 423

N.F.2d 115.

{¢ 19} Crm.R. 11(C)(2)c) requires that the defendant be advised of the

nght to a jury tral, the nght to confront one’s accusers, the privilege against

compulsory self-incnmination, the nght to compulsory process to cbtain

witnesses, and the mght to require the state to prove guilt beyond a rezsonable

doubt. The first three are the three constitutiona! nghts orginally identified in

Boykin v. Alabama, 395 US. at 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. We

recognized notification of the nght of compulsory process to obtain witnesses as a

fourth consutuuona! nght in Ballard. 66 Ohio St.2d 473, 20 0.0.3d 397, 423

N E.2d 114, at paragraph one of the syllabus

{F 20} Although the nzht to be proven guilty by the state beyond a

reasonable doubt is one of the five nghts included within Crim.R. 11(C)Q)(c), we

have never expressly accorded it the same stature as the other four. In fact. in a

footnote we suggested that the explanation of the prosecution’s burden of proof

should be treated differently, subject to a standard cf substantial, rather than strict,

A -8

SUPREME COURT OF OHIO

compliance. State v. Sturm (1981), 66 Ohio St.2d 483, 484, 20 0.0.3d 403, 422

N.E.2¢ $53, fx. 2. Because of this, the state argues that a inal court need only

substantially comply wih the obligation to advise a defendan: of the

prosccution’s burden of proof because the night is not specified m Buydw as one

that is constitutionally required

{421} Yet. as the Umied States Supreme Court held the year after Boyhin,

the mght to have the state prove guilt beyond a reasonable doubt is a

constitutionally protected nght of an accused. /n re Winship (1970), 397 US

358, 354, 99 S.Ct. 1068, 25 L.Ed.2d 368. We therefore reject the state’s

contention and instead hold that the duty te advise the defendant of the nght to

have guilt proven by the state beyond a reasonab.e 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

(422: Having found that a court must strictly comply with CnmR.

11(C)(2)(c) when advising a defendant of all five constitutional rights hsted, we

answer the certified quesuon in the affinmative. 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 tia) court must strictly comaly with

Cnm.R. 11(C)(2)(c) by informing Veney of the prosecution's burden of proof

beyond reasonable doubt, the court's error need not automatically iead to vacation

of the convichor and plea. We disagree

{4123} To properly frame this issue, we must review Ballerd, which

marked the first ume that we explicit}y made the connection between the strict-

compliance standard and the constitutional nghts in Crim.Ro LL(C)2)(c}; at

provides valuable insight into how the standard works in practice

{€ 24 In Ballard, we cited Boykin Alabama (1969), 395 US. 238,

242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274, for .he principles that 2 defendant must

January Terin, 2008

he

be apprised of certain constitutional nghts’ before his or her plea may

considered intelligen: and voluntary and that piain error results when a trial court

fails to explain those rights. Ballard, 66 Ohio $t.2d at 476-477, 20 0.0.3d 397,

423 N.E.2d 115

{4 25} However, we found a split of authority on the issue of “waether the

complete omission of a Boykin constitutional right alone ts cause to nullity 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 nght does not necessarily

result in an involuntary and unknowing guilty plea”; others “held that for a guilty

plea to be voluntarily aad intelhgently entered. the defendant must be informed

that he is waiving his Boykin nghts.” Id. at 477-£78, 20 0.0.3d 397, 423 N.E2d

115.

{§ 26} We adopted the latter view: “{A] guilty plea ts constitutionally

infirm when the defendant is not informed in a reasonable manner at the time of

entering his guilty plea of his [Boykin mghts].” (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: “Pnor to accepting a zuilty p.ea

from a criminal defendant, the trial court must inform the defendan: that he is

waiving his [Boykin rights}.” (Emphasis added.) Id. at paragraph one of the

syllabus.

{27} Lhis requirement is tempered only slighty by the second

paragraph of the svllabus: “Failure to use the exact languaye contained in Crim R

1i(C), in informing a criminal defendant of his [Boykin nghts), 1s not grounds for

vacating a plea as fong as the record shows that the trial court explained these

rights in a manrer reasonably intelligible to that defendant.” (Emphasis added.)

Batlard at 473, 66 Ohio St.2d 473, 20 0.0.3d 397, 423 N.E.2d J 15, at paragraph

view of our holding in this case. the principles applicable to the “Sorkin rights” extend to all

ermvhts listed in ¢ mim R | (Cy? C) if Ohiec

SUPREME COURT OF OHIO

two of the syllabus, modifying State v. Caudill (1976), 48 Ohio St.2d 342, 346, 2

0.0.3d 467, 358 N.F.2d 60]. With that holding, we recognized that a tnal court

can still convey the requisite information on constitutional nghts to the defendant

even when the court does not provide a word-for-word recitation of the cnminal

rule, so long as the trial court actually explains the nghts to the defendant.

$§ 28! We look to the record to determine whether a tnal court stnctly

complied with this duty. Id. at 481, 20 0.0.3d 397, 423 N.F.2d 115. Following

this rule, we upheld Ballard’s plea even though the trial court failed to specifically

mention the right to a jury inal by name, because the trial 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

under the law.” ” Id. at 479, 481, 20 0.0.3d 397, 423 N.E.2d 115, tn. 7.

{{ 29} Thus, pursuant to the stnct-compliance standard set forth in

Ballard, the trial court must orally inform the defendant of the nghts set forth in

Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be valid. Although

the tral 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 nghts to

x * *

the defendant. “We cannot presume a waiver of these important. federal

rights from a silent record.” Boykin, 395 U.S. at 243, 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 1s constitutionally infirm, making it presumptively 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, $14 N.E.2d 51, 12

{4 30} In the present case, itis undisputed that the trial court plainly failed

to orally inform Veney of his consututional right to require the state to prove his

guilt beyond a reasonable doubt. This failure tu strictly comply with Crun.R

11C)\2)e) renders Veney’s plea invalid. We therefore affirm the holding of

A-11

January Term, 2008

court of appeals in this regard and remand the matter to the trial court for further

proceedings

II]. Conclusion

{@ 31} We hold that 4 trial court must strictly comply with Crm.R.

11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the

plea waives (1) the right to a jury tnal, (2) the nght to confront one’s accusers, (3)

the right to compulsory process to obtain witnesses, (4) the nght to require the

state to prove guilt beyond a reasonable doubt, and (5) the privilege against

compulsory self-incnmination. When a tnal court fails to strictly comply with

this duty, the defendant’s plea is invalid.

{§ 32} We answer yes to the certified question and agree with the court of

appeals that the tnal court must strictly comply with Crim.R. 1] in advising a

defendant of constituuonal mghts. Because the tnal court did not inform Veney

that he had a nght to be found guilty only upon proof beyond a reasonable doubt,

it failed to strictly comply with Cnm.R. 11(C)(2)(c), and his plea is therefore

invalid

Judgment affirmed

and cause remanded

PFEIFER, O CONNOR, and O’DONNELL. JJ., concur.

LUNDBERG STRAITON, LANZINGER, and Cupp, JJ.. concur in part and

dissent in part

LANZINGER, J., concurring in part and dissenting in part.

f{ 33} | agree with the portion of the syllabus that mandates that nal

courts when conducting, plea colloquies must strictly comply with all parts of

Cnm.R. 11(Ci(2)(c). including informing defendants of the nght to be found

¢ }

guilty only upon proct

the syllabus that addresses the consequence of lack of strict compliance. |

vevond a reasonable doubt; | disagree with the portion of

FAV te

SUPREME COURT OF OHIO

respectfully dissent from the majority’s holding that a tnal court’s failure to

strictly comply with Crim.R. 11(C)(2)(c) requires vacation of the plea and

conviction without regard to contrary evidence in the record that the plea was

entered knowingly and voluntarily despite the tral court's omission.

{4341 We have held that when a trial judge fails to explain the

constitutional nghts set forth in Crim.R. 11(C)(2)(c), the guilty or no-contest plea

is invalid “under a presumption that it was entered involuntanly and

unknowingly.” (Emphasis added.) State v. Griggs, 103 Ohio St.3d 85, 2004:

Ohio-4415, 814 N.E.2d 51, § 12; see also State v. Nero (1990), 56 Ohio $t.3d 106,

107, 564 N.b.2d 474, citing Boykin v. Alabama (1969), 395 U.S. 238, 242-243,

89 §.Ct. 1709, 23 L.Ed.2d 274. This court has never held, until today, that this

presumption is irrebuttable or that a plea must be vacated automatically when the

trial court fails to orally explain a constitutional right. \

{4 35} Interpreting Crim.R. 11(C)(2)(c) as an absolute rule for which

imperfect compliance should lead to automatic vacation of a plea in every case,

the majority cites State v. Ballard (1981), 66 Ohio St.2d 473, 20 0.0,.3d 397, 423

N.E.2d 115. But the majority's reasoning seems to conflate a single missing oral

advisement with the entirely “silent record” referred to Boykin. Ballard, however,

did not foreclose an opportunity for the state to show that there was not a silent

record with respect to Koydin nghts. Just as the state is allowed to rebut the

presumption that a warrantless search 1s unreasonable, the state should be able to

rebut the presumpt'on that a plea is involuntary and unknowing when a judge fails

to mention one of ie constitutional nghts in Cnm.R. 11(C)(2)(c)

'@ 36} Allowing the state the chance to rebut the presumpuon that a

defendant has been prejudiced docs not confuse the standards of strict compliance

and substantial compliance. The may “stv recognizes that under the substanual

comphance standard, the burden is on the defendant to show prejudice, which

means showing that the plea would otherwise not have been entered. Nero, 56

MA- lo

January Term, 2008

Ohio $¢.3d at 108, 564 N.E.2d 474. A requirement that the stafe must overcome a

presumption of the plea’s invalidity when the trial court does not stnet!y comply

with Crim.R. 11(C2\(c) means that the defendant need no longer show

prejudice. The state simply is given an opportunity to establish through other

evidence in the record that the defendant's plea was still knowing and voluntary,

{© 37} Movecver, federal law does not require automatic vacation ol 4

plea wien a judge fails to inform a defendant of a Bovkin nght. See United States

v. Vonn (2002), 535 US. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90. Instead. the court

reviews the entire record—~including wniten pleas and statements that

constutuuonal ngkts were reviewed with connsel—to cetermine whether che

defendant understood and voluntanly made the plea. Id. at 74-75. We have

previously adopted this rule in Ballard, acknowledging that when determining

whether a defendant was cdequately informed of his constitutional nghts under

Crum.R. 11, a court must review the entire record and not just determine whether

the judge recited the exact language in the rule 56 Ohio $t.2d 473, 20 0.0.3d

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

{4 38} To the contrary, the majomty opimion now concludes that stnct

compliance brooks no oustakes by the tal court in us yral recitation to the

defendant. In its overly formalisuc view of the consequences of failure to s:rictly

comply with Cnm.R. 11(C)(2)(c), the majority rejects the idea that a tnal court

may have informed a defendant of his or her constitutional nghts in a number of

ways, including wntcen matenals that have been reviewec with counsel and

signed and assented to in open court. The tna! court’s overnding obligation has

been to ensure that a pica 1s entered in a knowing and intelligent manner. State \

+

Engle (1996), 74 Ohio St. 3d 525, $27, 660 N.F.2d 450. But now, the majenty’s

holding will invalidate convictions based upon a singie omitted oral statement of

the tna! court. no nmiatter whether the record would otherwise show that the

defendant understood and appreciated al] constitutional nghts being waived.

14

SUPREME COURT OF OHIO

(| 39} Because I disagree with these draconian

to every case, I respectfully dissent

opportumty to rcbut the presumption that a plea is unknowing

with evidence from the entire record

( »D

I would hold that che state

consequences as applied

should have an

, : ,

and invoiunialry

‘BERG STRATTON and Cupp, JJ., concur in the foregoing opinion

O’Brien, Franklin County Prosecuting Attorney,

sistant Prosecuting Attorney, for appellant

Yeura R. Venters, Franklin County Public Defender

Keeling, Assistant Public Defender, for appellee

10 «(Soh \

, ane sonn vy

\