# Opposition Brief — Ohio v. Veney (No. 08-1018) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0164%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2009 ## Text Supreme Court, U.S SILRENH | | 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 ..; _ 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 \ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0164%3A2. Public record. Not legal advice.