[Cite as State v. McKeithen, 2019-Ohio-493.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                COLUMBIANA COUNTY

                                         STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                    JAJUAN A. McKEITHEN,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 17 CO 0014


                                 Criminal Appeal from the
                     Court of Common Pleas of Columbiana County, Ohio
                                  Case No. 2014 CR 340

                                          BEFORE:
                  Kathleen Bartlett, Gene Donofrio, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                AFFIRMED


Atty. Scott Essad, 721 Boardman-Poland Road, Suite 201, Youngstown, Ohio 44512,
for Appellant and

Atty. John Gamble, 105 South Market Street, Lisbon, Ohio 44432, for Appellee.

                                       Dated: February 5, 2019
                                                                                       –2–



BARTLETT, J.

       {¶1}   This is an appeal following the Defendant-Appellant’s guilty plea and
sentencing hearing. Appellant contends that the trial court failed to properly advise him
of his right to confront witnesses/accusers against him at his plea hearing, in violation of
Criminal Rule 11.      As a result, Appellant alleges that his plea was not entered
knowingly, intelligently and voluntarily. The Appellant further contends that the trial
court’s holding on a motion to suppress, which occurred several months before
Appellant’s guilty plea, should be reversed.
       {¶2}   For the following reasons, Appellant’s assignments of error are without
merit. Accordingly, the judgment of the trial court is affirmed.
                              Facts and Procedural History
       {¶3}   Defendant-Appellant JaJuan A. McKeithen (hereinafter “Appellant”), was
indicted on September 17, 2015 for possession of heroin, a 1st degree felony in
violation of R.C. 2925.11(A). There was a forfeiture specification with the indictment
concerning $1,061 that Appellant had with him which was used or intended to be used
to sell or purchase heroin in violation of R.C. 2941.1417(A).
       {¶4}   Appellant pled not guilty.
       {¶5}   On August 3, 2016, a hearing was held on Appellant’s motion to suppress
regarding recorded telephone calls made by him to a third-party from a police
department telephone while he was locked to a prisoner’s bench.             The trial court
overruled the motion to suppress, finding that Appellant had no expectation of privacy in
using a jailhouse telephone, especially when he had past “experience with phones in
the prison system. . . .” (10/5/16 JE, pp. 16-17; Record on Appeal at p. 161).
       {¶6}   The matter was scheduled for trial on February 27, 2017. The case did
not proceed to trial because Appellant changed his plea to guilty, and on March 8, 2017,
a change of plea hearing was held. The trial court engaged in colloquy with Appellant
prior to accepting his guilty plea. The relevant colloquy for this appeal pertains to the
trial court’s duty to advise the Appellant of his right to confront witnesses/accusers
against him. The relevant colloquy occurred:




Case No. 17 CO 0014
                                                                                       –3–


      The Court: By offering to plead guilty today, Mr. McKeithen, you are
      waiving or giving up certain constitutional rights. You have a right to either
      a jury trial or a trial to the Court without a jury; do you understand that?

      Mr. McKeithen: Yes.

      The Court: And by offering to plead guilty, you are waiving or giving up
      your right to have a trial; do you understand that?

      Mr. McKeithen: Yes.

      The Court: By offering to plead guilty you are giving up your right to
      challenge any evidence or testimony that might be introduced against you
      at trial; do you understand that.

      Mr. McKeithen: Yes.

      The Court: By offering to plead guilty, you are giving up your right to call
      witnesses or have them subpoenaed to testify on your behalf at trial; do
      you understand that?

      Mr. McKeithen: Yes, I do.

      The Court: By offering to plead guilty, you are also giving up your right to
      testify and present evidence at trial on your own behalf; do you
      understand that?

      Mr. McKeithen: Yes.

      The Court: At trial you would have the right to remain silent, and if you
      chose to do so nobody could comment on that silence; do you understand
      that?

      Mr. McKeithen: Yes, I do.

      The Court: By offering to plead guilty, you are also giving up your right to
      remain silent. You are also giving up your right against self-incrimination;
      do you understand that?

      Mr. McKeithen: Yes.

      The Court: If you had a trial the State of Ohio would have the burden of
      proving your guilt beyond a reasonable doubt on each element of the
      offense, as well as the specification; do you understand that?

      Mr. McKeithen: Yes, I do.

      The Court: By offering to plead guilty, you are waiving or giving up your
      right to require the State to prove your guilt beyond a reasonable doubt;


Case No. 17 CO 0014
                                                                                                           –4–


        do you understand that?

        Mr. McKeithen: Yes, I do.

        The Court: And Mr. McKeithen, by offering to plead guilty, you are giving
        up your right to appeal any adverse decision that may have been made on
        any motions in this case; do you understand that?

        Mr. McKeithen: Yes, I do.

        The Court: By offering to plead guilty, you are also waiving your right to
        challenge any other violations of your rights that may have taken place
        under Ohio law or the United States Constitution; do you understand that?

        Mr. McKeithen: Yes, I do.

        The Court: Did Attorney Gillison review with you, Mr. McKeithen, your
        constitutional rights, as well as the constitutional rights you would be
        waiving or giving up by offering to plead guilty here today?

        Mr. McKeithen: Yes.

(3/8/17 Tr., pp. 11-14).

        {¶7}     At the change of plea hearing, the trial court was advised that the
Appellant had reviewed with his counsel the Felony Plea Agreement, the written Judicial
Advice to Defendant1, and his Response to the Court2, and that he signed them
voluntarily and did not have any questions. (3/9/17 JE; 3/8/17 Tr., pp. 6-8). The trial
court held that based on the dialogue at the hearing, as well as the Felony Plea
Agreement, the Judicial Advice to the Defendant, and the Defendant’s Response to the
Court, “the Court hereby finds that the Defendant has a knowing and intelligent
understanding of the consequences of his change of plea including the nature of the
charge, the minimum and maximum penalties and sanctions, including post release
control, and the constitutional rights he is waiving.” (3/9/17 JE).


1
   The Judicial Advice to Defendant states in pertinent part: “If you had a trial, you would be able to
confront all witnesses against you, face-to-face, and have your attorney cross-examine them to be sure
they are telling the truth.” (Record at 190, ¶ 10).
2
   Defendant’s Response to Court states: “Do you understand all of your constitutional rights?” Appellant
responded “yes.” Appellant also responded “yes” to the questions of “Do you fully realize that, by your
offer to plead guilty, you surrender the right to challenge everything that happened before you offered to
plead guilty?;” and “Do you fully realize that, by your guilty plea, you give up the right to trial and all your
other constitutional rights in connection with this case?” (Record at 196-197, ¶ 6, 13, 14).


Case No. 17 CO 0014
                                                                                        –5–




       First Assignment of Error:       The trial court erred when it failed to
       advise JaJuan McKeithen that he was waiving the right to confront
       witnesses against him.

       {¶8}   Guilty pleas are governed by Crim.R. 11. The notice requirements for
non-constitutional rights incorporated in Rule 11 are subject to a substantial compliance
analysis, which looks to the totality of the circumstances to ascertain whether the
defendant subjectively understood the implications of his plea and the rights he waived.
State v. Rudai, 7th Dist. No. 18 BE 0002, 2018-Ohio-4464, citing ¶ State v. Nero, 56
Ohio St.3d 106, 108, 564 N.E.2d 474 (1990); State v. Stewart, 51 Ohio St.2d 86, 93,
364 N.E.2d 1163 (1977). Strict compliance is required when notifying the defendant of
constitutional rights incorporated in Rule 11. State v. Barker, 129 Ohio St.3d 472, 2011-
Ohio-4130, 953 N.E.2d 826, ¶ 15, citing State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 18. Among the constitutional rights listed in Crim R.
11(C)(2)(c) is the right “to confront witnesses against [the defendant].”
       {¶9}   Appellant contends that the “right to confrontation” and the “right to
challenge any evidence or testimony” are not the same and the trial court failed to
inform Appellant of his right to confront witnesses against him. In State v. Martinez, No.
03 MA 196, 2004-Ohio-6806, ¶ 13, this Court held that strict compliance with Crim.R.
11(C) was achieved where the “trial court informed [the defendant] of his right to a jury
trial, his right to cross-examine witnesses, his right to subpoena witnesses on his own
behalf, his right to refuse to testify against himself, and that the state would have to
prove his guilt beyond a reasonable doubt.” In that case, the language did not verbatim
recite the “right to confront witnesses against him or her” in Crim.R. 11(C), but rather
stated the “right to cross-examine witnesses.”    Similarly here, the trial court did not fail
to inform the Appellant of his constitutional rights. “Failure to use the exact language
contained in Crim.R. 11(C) in informing a criminal defendant of his [constitutional rights
that he is waiving], is not grounds for vacating a plea as long as the record shows that
the trial court explained these rights in a manner reasonably intelligible to that
defendant.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶


Case No. 17 CO 0014
                                                                                          –6–


27 (emphasis added in original), citing State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d
115 (1981), at paragraph two of the syllabus, modifying State v. Caudill, 48 Ohio St.2d
342, 346, 358 N.E.2d 601 (1976). “With that holding, we recognized that a trial court
can still convey the requisite information on constitutional rights to the defendant even
when the court does not provide a word-for-word recitation of the criminal rule, so long
as the trial court actually explains the rights to the defendant.” Id.
         {¶10} In State v. Barker, the Ohio Supreme Court held that the trial court’s
description of the defendant’s constitutional right to compulsory process as the “right to
call witnesses to speak on your behalf” was a reasonably intelligible explanation to the
defendant of that constitutional right. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-
4130, 953 N.E.2d 826, ¶¶ 15, 20.                  The Barker Court further stated “[t]he use of
common, everyday words, including ‘call,’ instead of a rote recitation of legal
terminology, can assist the defendant in understanding the rights forfeited by entry of a
plea.” Id. at ¶ 20.3 This Court has acknowledged that “the oral colloquy does not need
to contain a ‘rote recitation’ of Criminal Rule 11.” State v. Green, 7th Dist. No. 02 CA
217, 2004-Ohio-6371, ¶ 15, citing Ballard, supra. In the instant case, the trial court did
not fail to orally inform Appellant of his right to confront witnesses against him, but used
language that differed from the exact wording of Crim.R. 11. The trial court’s use of the
phrase “right to challenge any evidence or testimony” is a reasonably intelligible
explanation to Appellant of his “right to confront witnesses” in his case.
         {¶11} This Court has similarly held that strict compliance with Crim.R. 11 was
satisfied where the trial court used language that differed from the “right of compulsory
process.” State v. Reynolds, 7th Dist. No. 16 CO 0017, 2016-Ohio-8557, 77 N.E.3d
366, ¶ 16. The Reynolds Court held that the explanation to defendant that “he ‘could
require witnesses favorable to you to be here and testify and I [the trial court] would
order them to do so’ was sufficient to convey the meaning of the right to compulsory
process, so as to strictly comply with Crim.R. 11(C).” Id.
         {¶12} Also, the defendant in Reynolds had received the same documents as in
the instant case, the document entitled “Judicial Advice to Defendant” from the trial
court, and the worksheet entitled “Defendant’s Response to the Court” which indicated

3
    Similarly here, the word “challenge” is a synonym of “confront.”


Case No. 17 CO 0014
                                                                                                          –7–


the defendant’s understanding of the rights he would be waiving by pleading guilty. Id.
at ¶ 4. The Judicial Advice in this case memorialized Appellant’s right to “confront all
witnesses against [him], face-to-face, and have [his] attorney cross-examine them to be
sure they are telling the truth.” (Judicial Advice ¶ 10.)                  Paragraph 16 of the Judicial
Advice reads, “If you plead guilty, you give up your right to trial and your defenses, and
you will not get to confront witnesses against you * * *.” In the Response to the Court,
Appellant warranted that he understood “all of [his] constitutional rights” and that he was
“giv[ing] up the right to trial and all [his] other constitutional rights in connection with this
case.” (Response ¶ 1, 14.) In Green, supra, we recognized that “[o]ral ambiguities in
the oral colloquy can be reconciled in some cases by a written acknowledgement of the
plea and waiver of the trial rights.” Id. ¶ 15, citing State v. Dixon, 2nd Dist. No. 01 CA
17, 2001-Ohio-7075; see also Barker, supra at ¶ 24 (holding when a trial court
addresses all the constitutional rights in the oral colloquy, a reviewing court is permitted
to consider additional record evidence to reconcile any alleged ambiguity in it).
        {¶13} Appellant attempts to analogize cases where the Rule 11 colloquy was
completely absent of the required constitutional rights, and sought to use written plea
agreements to make up for the lacking advisements.4 Here, the trial court did not fail to
orally advise Appellant of the right to confront witnesses, but used language that varied
from the literal language in Crim.R. 11.                 The trial court used the phrase “right to
challenge any evidence or testimony that might be introduced against you at trial” when
informing Appellant of his right to confront witnesses against him.                          This language
explained Appellant’s right to confront witnesses/accusers against him in a reasonably
intelligible manner. Appellant reviewed the Felony Plea Agreement, Judicial Advice to
Defendant, and Response to the Court with his counsel.                         Moreover, the trial court
engaged in an extensive colloquy discussing the rights that Appellant was waiving as a
result of his plea. As a result, this Court finds that the trial court complied with Crim.R.
11(C) and Appellant’s plea was made knowingly, intelligently, and voluntarily and the
first assignment of error is without merit.


4
   See State v. Clinton, 6th Dist. No. E-17-069, 2018-Ohio-3509, 2018 WL 4190788, ¶ 13 (stating
“although the trial court may vary slightly from the literal wording of the rule in the colloquy, the court
cannot simply rely on other sources to convey those rights to the defendant”), citing Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621 at ¶ 29.


Case No. 17 CO 0014
                                                                                         –8–


       {¶14} Because this Court determined that the Appellant’s plea was made
knowingly, intelligently, and voluntarily, Appellant’s second assignment of error is
rendered moot.

       Second Assignment of Error:            The State intended to use tape-
       recorded telephone calls that Appellant McKeithen made when he
       was in custody. His “one phone call.” The trial court erred when it
       did not grant McKeithen’s motion to suppress the evidence obtained
       from that [sic] telephone calls.

       {¶15} The trial court advised Appellant “by offering to plead guilty, you are giving
up your right to appeal any adverse decision that may have been made on any motions
in this case; do you understand that?” (3/8/17 Tr., pp. 13-14). Appellant responded
“[y]es, I do.” (3/8/17 Tr., p. 14). Appellant did in fact waive his rights as discussed in his
first assignment of error.     Therefore, his waiver of the right to appeal an adverse
decision on any motions made prior to his guilty plea is upheld.
       {¶16} In addition to the waiver of his right to appeal any adverse motions in his
case, the record reveals that Appellant was placed on notice that upon entering the
police department, he was subject to video and audio recording. At the hearing, the
officer testified that the sign posted at the East Liverpool Police Department states
“WARNING ALL PERSONS WITHIN POLICE DEPARTMENT ARE SUBJECT TO
VIDEO AND AUDIO RECORDING.” (8/3/16 Tr., pp. 15-16; State’s Ex. 1). In its entry,
the trial court stated “[e]ven if the Defendant was not on sufficient notice, courts have
recognized the independent right to monitor and record telephone calls in the interest of
institutional security.   No countervailing interest, such as attorney-client privilege, is
implicated in this case.”     (10/5/16 JE at 17).     Courts have upheld the practice of
telephone monitoring on two independent grounds: first, when placed on notice of
telephone monitoring, the prisoner does not have a requisite subjective expectation of
privacy to incur a Fourth Amendment violation, and second that society is not willing to
recognize any such subjective expectation of privacy because the institutional interest in
security outweighs the prisoner’s privacy rights. State v. Myers, 5th Dist. No. 03-CA-61,
2004-Ohio-3052, ¶ 58. Appellant was locked to a prisoner’s bench within the police


Case No. 17 CO 0014
                                                                                   –9–


department at the time he made the telephone calls. (8/16/16 Tr., p. 55). Further, the
police department warns all persons with the posted sign that upon entering the
premises they are subject to video and audio recording. (8/16/16 Tr., p. 16). The trial
court was correct in holding that “Defendant had at least constructive notice [of the
warning of video and audio recording] sufficient to eliminate any reasonable expectation
of privacy in the phone calls.” (10/5/16 JE at 16).
       {¶17}   Thus, based on all of the above, the Appellant’s first and second
assignments of error are without merit. Therefore, the judgment of the trial court is
affirmed.



Donofrio, J., concurs.

Robb, J., concurs.




Case No. 17 CO 0014
[Cite as State v. McKeithen, 2019-Ohio-493.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.



                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
