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

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mn Supreme Court, U.S. J

‘ MAY 29 2009

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

THE STATE OF OHIO,

Petitioner,

Vv.

THOMAS L. VENEY,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

REPLY BRIEF OF PETITIONER

STATE OF OHIO

RON O’BRIEN

FRANKLIN COUNTY

PROSECUTING ATTORNEY

STEVEN L. TAYLOR

Counsel of Record

ASSISTANT PROSECUTING ATTORNEY

373 South High Street, 13th Floor

Columbus, Ohio 43215

(614) 462-3555

Counsel for Petitioner

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

TABLE OF CONTENTS

Page

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(i)

TABLE OF AUTHORITIES

CASES Page

Bousley u. United States, 523 U.S. 614

Te cesestewenccscos 10

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

Brigham City v. Stuart, 547 U.S. 398

Neen cc scsanesticns 7

Hawaii v. Office of Hawaiian Affairs, 556

U.S. ___, 129 S.Ct. 1436 (2009)... eee 3

Kansas v. Marsh, 548 U.S. 163 (2006)......... 7,8

Kansas v. Ventris, 556 U.S. __, 129 S.Ct.

Neen lis sscciavesshsserscescees 7

Michigan v. Long, 463 U.S. 1032 (1983)...... 3, 8

Ohio v. Reiner, 532 U.S. 17 (2001)............... 3

Rivera v. Illinois, 556 U.S. ___, 129 S.Ct.

Nee, seccssanevebaseensseoesecs 5

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

ess icencscsotensersacccesecscecese 3-4

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

Ohio 1624, 885 N.E.2d 917 (2008)............ 4

State v. Wamsley, 117 Ohio St.3d 388,

2008 Ohio 1195, 884 N.E.2d 45 (2008)..... 5

United States v. Dominguez-Benitez, 542

call Nnscepacsedeseeecssocsccsecese 2

United States v. Timmreck, 441 U.S. 780

Nein cscs censkesaseserensscccess 5

Vermont v. Brillon, 556 U.S. ___, 125 S.Ct.

Ces cesecunpesesbonsesses 7

STATUTES

I I ooo evesenconsveccvsvcscescosncces 7

RULES

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IN THE

Supreme Court of the United States

No. 08-1018

THE STATE OF OHIO,

Petitioner,

Vv.

THOMAS 1. VENEY,

Respondent.

——

On Petition for a Writ of Certiorari to the

Supreme Court of Ohio

REPLY BRIEF OF PETITIONER

STATE OF OHIO

ARGUMENT

At the time respondent pleaded guilty, the Ohio

trial court did not orally advise him that his plea was

waiving his right to require the prosecution to prove

his guilt at a trial beyond a reasonable doubt.

However, the beyond-reasonable-doubt right and res-

pondent’s understanding that he was waiving that

right were set forth in a written Entry of Guilty Plea,

which respondent orally acknowledged approving.

Respondent also orally acknowledged having re-

viewed his constitutional rights with his counsel.

Respondent does not dispute the three major bases

asserted by petitioner Ohio for granting certiorari

review. In particular, respondent does not dispute

that the overwhelming majority of case law, includ-

ing almost all federal circuits, has concluded that

federal due process under Boykin v. Alabama, 395

U.S. 238 (1969), does not require any oral advise-

ment. Under Boykin, the record need only affirma-

tively disclose in some way that the defendant was

aware of the Boykin rights he was waiving.

Respondent also does not dispute that a fair num-

ber of courts have concluded that the beyond-

reasonable-doubt right is not a Boykin right.

Respondent also does not dispute that this Court

has previously concluded that the omission of a plea

advisement does not amount to structural error

always requiring reversal. United States v. Dominguez-

Benitez, 542 U.S. 74 (2004). Respondent does not

even address the written Entry of Guilty Plea, which

Entry shows that the omission of the oral advisement

was not prejudicial.

Finally, respondent does not dispute that petitioner

Ohio’s asserted grounds for seeking certiorari were

fully preserved below.

Instead of directly challenging the strong grounds

for granting certiorari, respondent asserts that the

Ohio Supreme Court’s ruling was only a state-

law ruling determining the reach of Ohio’s Crim.R.

11(C)(2)(c). Respondent asserts that the Ohio

Supreme Court was merely exercising “supervisory

power” in determining that the omission of the oral

advisement under the rule would always require

reversal. For the following reasons, these conten-

tions lack merit.

While respondent argues that “[t]he Ohio Supreme

Court’s decision rests entirely upon independent

state grounds,” see Brief in Opposition, at 18, respon-

dent does not address this Court’s “plain statement”

standard. As this Court recently reiterated, “[t]his

Court has jurisdiction whenever ‘a state court

decision fairly appears to rest primarily on federal

law, or to be interwoven with the federal law, and

when the adequacy and independence of any possible

state law ground is not clear from the face of the

opinion.’” Hawaii v. Office of Hawaiian Affairs, 556

U.S. __, 129 S.Ct. 1436, 1442 (2009), quoting

Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).

At the very least, the Ohio Supreme Court’s ruling

represents an interwoven mixture of federal constitu-

tional law and state criminal procedure. The Ohio

Supreme Court determined the issue of “strict com-

pliance” by reference to whether the plea was “con-

stitutionally infirm.” Such a ruling provides a

sufficient basis for jurisdiction. See, e.g., Ohio v.

Reiner, 532 U.S. 17, 20 (2001) (“We have jurisdiction

over a state-court judgment that rests, as a threshold

matter, on a determination of federal law.”).

The fairest reading is that the Ohio Supreme Court

was primarily basing its ruling on federal constitu-

tional law. The Ohio Supreme Court rejected

the prosecution’s arguments that Boykin was not

violated. The Court cited Boykin eight times in the

key passages from paragraphs 24 through 30 in

reaching the conclusion that the plea was “consti-

tutionally infirm.” In reaching this “constitutionally

infirm” conclusion, the Court also relied heavily on

State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115

(1981), which itself was a federal constitutional rul-

ing determining “what does Boykin require of a trial

court.” Id. at 476, 423 N.E.2d at 117.

No part of the ruling shows that the Court based

its ruling solely on “supervisory power” over the

administration of Ohio’s Crim.R. 11(C)(2)(c). The

frequent citations to Boykin and Ballard belie any

narrow “supervisory” holding, as does the fact that

the Court never mentioned a “supervisory” basis for

decision.

In addition, the Court acknowledged that it would

not have adopted an automatic-reversal principle

if the case had involved only a nonconstitutional

error. The Court stated at paragraph 17 that “[ojur

precedent * * * establishes that a defendant must

show prejudice before a plea will be vacated for a

trial court’s error involving Crim.R. 11(C) procedure

when nonconstitutional aspects of the colloquy are at

issue.” If the Court had agreed with the prosecution

that only a “nonconstitutional aspect” was involved

in the failure to give the oral beyond-reasonable-

doubt advisement, the Court would have required a

showing of prejudice, and the prosecution would have

prevailed, since the Entry of Guilty Plea established

the lack of prejudice.

The Court also would not have disregarded Ohio’s

Crim.R. 52(A), which provides that harmless errors

shall be disregarded. Only constitutional error could

amount to error always requiring reversal. State v.

Colon, 118 Ohio St.3d 26, 2008 Ohio 1624, 885

N.E.2d 917, ¥ 21 (2008). Ohio appellate courts have

only a narrow power to reverse. “In Ohio, Crim.R. 52

gives appellate courts narrow power to correct errors

that occurred during the trial court proceedings.”

State v. Wamsley, 117 Ohio St.3d 388, 2008 Ohio

1195, 884 N.E.2d 45, 9 19 (2008). Only an error of

purported constitutional dimension requiring auto-

matic reversal could countermand the Ohio Supreme

Court’s otherwise-extant need to comply with Ohio’s

Crim.R. 52.

To be sure, the Ohio Supreme Court could have

confined itself to the issue of how it would enforce its

mere criminal-rule requirement. If the Court had

done so, the prosecution could not seek certiorari

review here. But if the Court had done so, the

prosecution would have no need to seek review, since

the prosecution would have prevailed under the stan-

dards of “substantial compliance” and harmless-error

review that Ohio law otherwise recognizes.

It bears emphasis that “errors of state law do not

automatically become violations of due process.”

Rivera v. Illinois, 556 U.S. __, 129 S.Ct. 1446, 1455

(2009). “The Due Process Clause * * * safeguards not

the meticulous observance of state procedural pre-

scriptions, but the fundamental elements of fairness

in a criminal trial.” 129 S.Ct. at 1454 (internal

quotation marks omitted). Ohio’s Crim.R. 11 could

not amend the Constitution. See United States v.

Timmreck, 441 U.S. 780, 783-84 (1979).

The constitutional nature of the Ohio Supreme

Court’s ruling should have come as no surprise to

respondent, who specifically argued for such a ruling.

Respondent repeatedly cited Boykin and argued that

“{clourts must strictly comply with the constitutional

requirements of Crim.R. 11(C)(2)(c) * * *.” (Defense

Merit Brief, at p. 3) As the defense argued below:

The criminal rules state that a judge shall not

accept a plea without informing the defendant

and determining that he understands that, by

entering the plea, he is waiving his right to

require the state to prove the defendant’s guilt

beyond a reasonable doubt at a trial. This is

unquestionably a federal constitutional right that

applies to the states through the Due Process

Clause. It is a right that one must be aware of

before any guilty plea can be knowingly and

intelligently made.

(Id. at p. 11; emphasis added) As the defense further

argued below:

The judge has an express duty to make a proper

record and to inform the defendant that the state

is required to prove his guilt beyond a reasonable

doubt at trial and to determine that the defen-

dant understands this right. The trial court

completely failed to abide by the Constitution and

the law in this regard and it cannot be concluded

that the defendant’s guilty plea was knowingly

and voluntarily entered.

(Id. at p. 17; emphasis added)

The Ohio Supreme Court naturally took these

arguments to mean that respondent was secking a

constitutional ruling. In paragraph six of its opinion,

the Court summarized respondent’s argument as

contending “that the trial court’s failure to orally

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

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

a substantial right that automatically invalidates his

plea.” (Emphasis added)

While respondent accuses petitioner Ohio of

“obfuscatling]” the basis for the Ohio Supreme

Court’s ruling, respondent himself is the party who

insisted that the error was of constitutional dimen-

sion. The Ohio Supreme Court adopted that argu-

ment, and this Court now has jurisdiction to review

these constitutional issues.

Respondent errs in claiming that petitioner Ohio is

asserting its own due-process rights and that peti-

tioner can have no objection when the Ohio Supreme

Court provides greater protection to criminal defen-

dants. Petitioner is not claiming any due-process

right of its own, but, rather, petitioner is claiming

that the Ohio Supreme Court went too far by finding

due-process error. Respondent set up a constitutional/

due-process claim, and the Ohio Suprime Court

sustained that claim. This Court has jurisdiction to

address whether the state court correctly sustained

respondent’s constitutional claim. 28 U.S.C. § 1257(a)

(review allowed “where any title, right, privilege, or

immunity is specially set up or claimed under the

Constitution”).

As for the contention that the Ohio Supreme Court

could have provided greater protection to respondent

as a matter of state law, the problem is that the

Court did not purport to do so. Instead, the Court

provided greater protection based at least in substan-

tial part on its view of what the federal constitution

required. This Court can and will review state-court

rulings that err in a criminal defendant’s favor vis-a-

vis a federal constitutional issue. See, e.g., Kansas v.

Ventris, 556 U.S. ___, 129 S.Ct. 1841 (2009); Vermont

v. Brillon, 556 U.S. __, 129 S.Ct. 1283 (2009);

Kansas v. Marsh, 548 U.S. 163 (2006); Brigham City

v. Stuart, 547 U.S. 398 (2006).

“Turning a blind eye to federal constitutional error

that benefits criminal defendants, allowing it to per-

meate in varying fashion each State Supreme Court’s

jurisprudence, would change the uniform ‘law of the

land’ into a crazy quilt.” Marsh, 548 U.S. at 185

(Scalia, J., concurring). “[I]t cannot be doubted that

there is an important need for uniformity in federal

law, and that this need goes unsatisfied when we fail

to review an opinion that rests primarily upon federal

grounds and where the independence of an alleged

state ground is not apparent from the four corners of

the opinion.” Long, 463 U.S. at 1040 (emphasis sic),

While respondent contends that the case is unim-

portant because it will merely result in Ohio trial-

court judges complying with an oral-advisement re-

quirement imposed by state law, respondent unwit-

tingly concedes the importance of this case by em-

phasizing that the vast majority of cases are disposed

through plea-based proceedings. Issues regarding

the exact reach of Boykin and the availability of

harmless-error review therefore potentially affect the

vast majority of cases. The Boykin issues are recur-

ring, and courts throughout the nation could poten-

tially benefit from a ruling by this Court. This Court

could also benefit, since, if an oral beyond-reasonable-

doubt advisement is constitutionally required, then

Fed.R.Crim.P. 11 would need amendment, as it does

not currently require such an advisement.

Respondent’s claim that the case is in danger of

becoming “moot” is perplexing. There is no danger of

mootness. The issues of whether the plea proceeding

was invalid and/or requires reversal both create a

]

live controversy, as decisions on those issues would

directly affect whether respondent’s conviction will

be reinstated or whether the case must be reprose-

cuted in the trial court.

Respondent errs in contending that his present

detention in the county jail somehow might result in

a mooting of the case while certiorari review remains

pending. Respondent assumes that he is serving a

five-year sentence and that the five-year term might

run out before this Court rules. But there is no five-

year sentence in place at this point, since that sen-

tence has been vacated and respondent has heen

returned to the county jail to await further trial-court

proceedings. The original five-year sentence could be

reinstated only if this Court accepts review. The trial

court is properly awaiting word on whether this

Court will accept review. Petitioner Ohio agrees that

respondent potentially faces a total of up to twenty-

one years on the reinstated charges at this point.

Respondent is being held without bail because his

bail was revoked due to his failure to appear in the

case for over one year from November 2004 to

January 2006 when the case was originally pending

in the trial court.

Even if a five-year sentence were being served now,

that sentence still would not run out before this

Court could be expected to rule. The five-year sen-

tence would not have been expected to expire until

December 2010. If this Court grants review by the

end of June 2009 or at the start of the October 2009

term, a ruling could be expected by June 2010, well

before a five-year sentence would expire.

Respondent’s mootness argument also ignores the

fact that he had received a mandatory three-year

term of “post-release control” under Ohio law, which

is a special parole term that must be served after

service of the five-year sentence.

Respondent’s suggestion that he might abandon

defense of the Ohio Supreme Court’s ruling is also

easily addressed. If such abandonment occurs, this

Court could appoint a counsel as special amicus for

this Court to defend the lower-court ruling. See, e.g.,

Bousley v. United States, 523 U.S. 614, 618 (1998).

Abandonment by respondent would not “moot” the

case.

CONCLUSION

In light of the foregoing arguments, petitioner Ohio

stands by its petition for writ of certiorari and res-

pectfully requests that this Court grant the petition.

Respectfully submitted,