Opinion
No. 107552
05-23-2019
STATE OF OHIO, Plaintiff-Appellee, v. JUSTIN LEWIS Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Timothy R. Troup, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and David Martin King, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-624178-A and CR-18-626972-B Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Timothy R. Troup, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and David Martin King, Assistant Public Defender, for appellant. MICHELLE J. SHEEHAN, J.:
{¶ 1} Justin Lewis ("Lewis") appeals from a judgment of the Cuyahoga County Court of Common Pleas that convicted him of several drug offenses after he pleaded guilty. On appeal, he claims that his guilty plea was not valid because the trial court did not advise him of his right to a bench trial. For the following reasons, we affirm the judgment of the trial court.
{¶ 2} Lewis pleaded guilty to multiple drug charges in two separate cases. In Cuyahoga C.P. No. CR-17-624178, he pleaded guilty to trafficking in cocaine, a second-degree felony, and trafficking in heroin, a second-degree felony, both accompanied with a one-year firearm specification. In addition, he pleaded guilty in this case to drug possession, a fifth-degree felony; two counts of having weapons while under disability, third-degree felonies; possessing criminal tools, a fifth-degree felony; and child endangering, a first-degree misdemeanor. In Cuyahoga C.P. No. CR-18-62972, he pleaded guilty to one count of drug possession, a fifth-degree felony.
{¶ 3} Prior to accepting Lewis's guilty plea, the trial court conducted a Crim.R. 11 plea colloquy to ensure that Lewis's plea was knowing, voluntary, and intelligent. After he pleaded guilty, the court sentenced him to an aggregate prison term of 12 years in these two cases.
{¶ 4} Lewis now appeals, contesting the validity of his guilty plea. He assigns the following error for our review:
The trial court erred when it did not determine that the defendant understood he was waiving certain constitutionally guaranteed trial rights by pleading guilty in violation of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and Article 1 Section 10 of the Ohio Constitution, R.C. 2945.05 and Ohio Crim.R. 11 and 23.
{¶ 5} Under the assignment of error, Lewis argues in particular that his plea was invalid because the trial court did not advise him that he could choose to be tried by the court in a bench trial. Lewis acknowledges the right to a bench trial is neither mentioned in the U.S. or the Ohio Constitution, nor in Crim.R. 11. He argues, however, that the trial court must inform a defendant of a right to a bench trial in the Crim.R. 11 colloquy in order for his plea to be considered knowing, intelligent, and voluntary.
{¶ 6} "Crim.R. 11(C) governs the process that a trial court must use before accepting a felony plea of guilty or no contest." State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. In order to ensure that a defendant enters a plea knowingly, intelligently, and voluntarily, a trial court must engage in a colloquy with the defendant in accordance with Crim.R. 11(C). State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). The underlying purpose of Crim.R. 11(C) is to convey certain information to a defendant so that he or she can make a voluntary and intelligent decision regarding whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). We review de novo whether the trial court accepted a plea in compliance with Crim.R. 11(C). State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
{¶ 7} Crim.R. 11(C) outlines the trial court's duties in accepting guilty pleas as follows:
(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) 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 is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) 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.
{¶ 8} Crim.R. 11(C)(2)(c) enumerates five constitutional rights the trial court is required to advise a defendant at a plea hearing. Veney at ¶ 13 ("[b]efore accepting a guilty or no-contest plea, the court must make the determinations and give the warnings required by Crim. R. 11(C)(2)(a) and (b) and notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c)"). The trial court must strictly comply with Crim.R. 11(C)(2)(c) when advising a defendant of the five constitutional rights enumerated there. Veney at ¶ 22. When the trial court fails to explain the constitutional rights set forth in Crim.R. 11(C)(2)(c), it is presumed the plea was entered involuntarily and unknowingly and therefore invalid. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31. With respect to the nonconstitutional rights described in Crim.R. 11(C)(2)(a), such as the maximum penalty advisement, a substantial compliance standard applies. Stewart at 92.
{¶ 9} Here, the transcript reflects the trial court engaged in the following colloquy regarding the constitutional rights delineated in Crim.R. 11(C)(2)(c) before accepting Lewis's guilty plea:
THE COURT: Okay. Let's go over your constitutional rights again to make sure you understand your rights, and more importantly, to make sure you'll be giving these up, these rights up that is, when you enter into this plea agreement.
So you have a right to a jury trial in these two cases, do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Now, at that jury trial you have the right to confront and to cross-examine the State's witnesses against you. You may do that through your lawyer. You have the right to use this Court's compulsory process power and bring in your own witnesses and have them testify on your behalf.
You do not have to take the witness stand and testify at the trial if you choose not to testify, the State of Ohio cannot use your silence against you.
Lastly, the state has the burden of proof. They must prove the charges against you to a legal standard of beyond a reasonable doubt. And that must be done before you can be found guilty. Do you understand those rights?
THE DEFENDANT: Yes, your honor.
THE COURT: Do you understand you'll be giving these rights up by entering into this plea agreement?
THE DEFENDANT: Yes, your honor.
{¶ 10} Lewis claims that, as part of the colloquy, the trial court should have also advised him of his right to a bench trial, although it is unclear whether he considers the right constitutional or nonconstitutional. R.C. 2945.05 ("Defendant may waive jury trial") states that "[i]n all criminal cases * * *, the defendant may waive a trial by jury and be tried by the court without a jury." Although Lewis is correct that the statute provides the defendant with the option of being tried to the bench, Lewis does not cite any case law authority for his contention that this option must be part of the Crim.R. 11 colloquy for a guilty plea to be valid.
{¶ 11} Our own research indicates that a similar claim has been previously raised by criminal defendants but the claim has been consistently rejected by the courts. It has been well settled in Ohio that the lack of advisement from the trial court regarding a defendant's option to be tried without a jury does not invalidate an otherwise knowing, intelligent, and voluntary plea.
{¶ 12} The right to trial by jury is guaranteed by the Sixth Amendment to the Constitution of the United States, and it is one of the five constitutional trial rights a criminal defendant must be advised of. Ballard, 66 Ohio St.2d at 423 N.E.2d 115. A defendant's option to be tried without a jury, although provided in R.C. 2945.05, is not a constitutional right, neither is it mentioned anywhere in Crim.R. 11(C). As the Seventh Appellate District recently explains at great length in a well-reasoned decision:
A person has many constitutional rights, but the mere fact a person is pleading guilty does not require the trial court to list every conceivable constitutional right he may be waiving. For instance, there is a right to a speedy and public trial; however, a trial court is not required to advise the pleading defendant about this right. * * *
Moreover, it is the right to trial by jury that is guaranteed by the Sixth Amendment to United States Constitution. * * * See also Article I, Section 10 of Ohio Constitution. In Ohio, the right to be tried by the
court is conferred by R.C. 2945.05. State v. Frohner, 150 Ohio St. 53, 85-87, 80 N.E.2d 868 (1948) (addressing the availability of a bench trial if one is provided by a state's positive legislative enactment such as R.C. 2945.05).State v. Cruz-Ramos, 7th Dist. Mahoning No. 17 MA 0077, 2019-Ohio-779, ¶ 15-21. See also State v. Acosta, 6th Dist. Wood No. WD-15-066, 2016-Ohio-5698, ¶ 13-14.
* * *
[T]he non-constitutional rights relevant to the plea hearing are contained in subdivisions (b) and (c) of Crim.R. 11(C)(2). The right to a bench trial is not contained therein. Appellant cites no other rule or statute requiring a discussion of a bench trial right at the plea hearing. * * * The Supreme Court has * * * rejected any argument that a non-constitutional right must be discussed by the trial court at the plea hearing notwithstanding its absence from Crim.R. 11. * * *
Contrary to Appellant's contention, the trial court is under no obligation to advise a pleading defendant that he waives his right to a bench trial. [State v. Bell], 2d Dist. No. 24356, [2011-Ohio-5016] at ¶ 17. See also State v. Timmons, 8th Dist. No. 105940, 2018-Ohio-2837, ¶ 7, 11-13 (generally rejecting the argument that the trial court was required to advise the pleading defendant that a jury trial could be waived in favor of a bench trial); State v. Kittelson, 11th Dist. No. 2016-L-062, 2016-Ohio-8430, 78 N.E.3d 355, ¶ 30 ("he was advised of his right to a bench trial, despite the fact that the trial court is under no obligation to advise him of that right"); State v. Brown, 9th Dist. No. 24831, 2010-Ohio-2328, ¶ 17 (affirming the denial of a plea withdrawal motion as "[n]othing in the rule requires the trial judge to advise that a plea waives the defendant's right to a bench trial"); State v. Steele, 8th Dist. No. 85901, 2005-Ohio-5541, ¶ 13 ("there is no requirement that trial courts are likewise required to inform defendants of the right to a bench trial").
Finally, regardless of whether the right to a trial by the court is a constitutional or non-constitutional right, it is not addressed in Crim.R. 11 as a required advisement or subject of discussion. Accordingly, a plea is not invalidated by the failure of the trial court to discuss the bench trial option.
{¶ 13} For over 30 years, this court has also consistently rejected the claim that the trial court is required to inform defendants of the option of a bench trial in order for a guilty plea to be valid. Timmons, 8th Dist. Cuyahoga No. 105940, 2018-Ohio-2837; Steele, 8th Dist. Cuyahoga No. 85901, 2005-Ohio-5541; State v. Jackson, 8th Dist. Cuyahoga No. 80257, 2002-Ohio-4189, ¶ 15; State v. Cannon, 8th Dist. Cuyahoga No. 67952, 1995 Ohio App. LEXIS 4858 (Nov. 2, 1995); and State v. Luster, 8th Dist. Cuyahoga No. 49248, 1985 Ohio App. LEXIS 8120 (June 20, 1985).
{¶ 14} Here, it is undisputed that the trial court substantially complied with its obligations under Crim.R. 11(C)(2)(a) regarding Lewis's nonconstitutional rights and it ensured that Lewis understood the effect of his plea pursuant to Crim.R. 11(C)(2)(b). Furthermore, the plea transcript reflects the trial court advised Lewis of the five constitutional rights enumerated in Crim.R. 11(C)(2)(c). Although Lewis has the right to opt for a bench trial under R.C. 2945.05, the trial court is not obligated to specifically advise him of this possibility. The advisement of the possibility of a bench trial undoubtedly makes for a more thorough plea colloquy, but Crim.R. 11 does not require it for the plea to be knowing, intelligent, and voluntary. The assignment of error is without merit.
{¶ 15} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
MICHELLE J. SHEEHAN, JUDGE EILEEN T. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR