[Cite as State v. Ralston, 2018-Ohio-4946.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                       :       OPINION

                 Plaintiff-Appellee,                 :
                                                             CASE NO. 2017-P-0095
        - vs -                                       :

MEGAN C. RALSTON,                                    :

                 Defendant-Appellant.                :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
0760 D.

Judgment: Reversed and remanded.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Shubhra N. Agarwal, 3732 Fishcreek Road, #288, Stow, OH 44224 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Megan Ralston, appeals from the judgment of the Portage

County Court of Common Pleas convicting her of aggravated possession of drugs

following her plea of guilty.           At issue is whether a court strictly complies with the

requirements of Crim.R. 11(C) if it orally advises a defendant that she is entitled to a

trial, but does not expressly state that it would be a jury trial. For the following reasons,

we reverse the trial court’s judgment and remand the matter for further proceedings.
       {¶2}   On August 24, 2017, appellant was indicted for aggravated trafficking in

drugs, in violation of R.C. 2925.03(A)(2), a felony of the second degree; aggravated

possession of drugs, in violation of R.C. 2925.11(A) and (C)(1)(c), a felony of the

second degree; and falsification, in violation of R.C. 2921.13(A)(3), a misdemeanor of

the first degree.

       {¶3}   Ultimately, appellant entered a plea of guilty to an amended count of

aggravated possession of drugs, in violation of R.C. 2925.11(A) and (C)(1)(b). The

remaining counts were nolled. Appellant was sentenced to three years in prison and

ordered to pay a $5,000 fine. Appellant now appeals, assigning the following as error:

       {¶4}   “The trial court committed reversible error in accepting Ms. Ralston’s guilty

plea on grounds that the trial court failed to comply with Crim.R. 11 during the plea

colloquy by not advising her that she had a right to a jury trial.”

       {¶5}   A guilty plea entered in a criminal case must be made knowingly,

intelligently, and voluntarily to be valid under both the United States and Ohio

Constitutions. Boykin v. Alabama, 395 U.S. 238, 241 (1969); State v. Engle, 74 Ohio

St.3d 525, 527 (1996). Crim.R. 11 “was adopted to ensure that certain information

necessary for entering a knowing, intelligent, and voluntary plea would be conveyed to a

defendant.” State v. Gensert, 11th Dist. Trumbull No. 2015-T-0084, 2016-Ohio-1163,

¶9. The Ohio Supreme Court has emphasized that a trial court must strictly comply

with Crim.R. 11(C) as it relates to the waiver of constitutional rights. State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, at ¶18, citing State v. Ballard, 66 Ohio St.2d 473, 479

(1981). Failure to literally comply with the language of Crim.R. 11(C)(2)(c) does not,

however, invalidate a plea agreement as long as the record reveals that the trial court

explained or referred to the constitutional rights “‘“in a manner reasonably intelligible to


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that defendant.”’” (Emphasis sic.) State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130,

¶14, quoting Veney, supra, at ¶27, quoting Ballard, supra, at 480.           Still, a trial court

must orally advise a defendant of the constitutional rights he or she is waiving before

accepting a felony plea of guilty. Veney, supra, at syllabus. Moreover, the Court in

Veney made it clear that a court may not rely exclusively upon outside sources to meet

its Crim.R. 11(C)(2)(c) duties. The Court emphasized:

       {¶6}   [P]ursuant to the strict-compliance standard set forth in Ballard, the
              trial court must orally inform the defendant of the rights set forth
              in Crim.R. 11(C)(2)(c) during the plea colloquy for the plea to be
              valid. 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 these rights to the defendant. “We cannot
              presume a waiver of these * * * important federal rights from a silent
              record.” Boykin [v. Alabama, 395 U.S. 238,] 243 [(1969)]. When the
              record confirms that the trial court failed to perform this duty, the
              defendant's plea is constitutionally infirm, making it presumptively
              invalid. See Ballard, [supra,] at 481; State v. Griggs, 103 Ohio St.3d
              85, 2004-Ohio-4415, ¶12. Veney, supra, at ¶29.

       {¶7}   In this case, the trial court informed appellant she was waiving her right to

a trial. At no point, however, did the court orally inform appellant she was waiving her

right to a jury trial or reference a jury during the plea colloquy. We recognize that

appellant’s written plea of guilty indicated that appellant acknowledged the following: “I

have been informed by my Attorney and by the Judge that by pleading guilty I waive the

following constitutional rights * * * [m]y right to a jury trial.” The written plea, however, is

an outside source upon which the trial court could not solely rely. Pursuant to Veney,

appellant’s plea is invalid.

       {¶8}   The state characterizes the omission at issue as an ambiguity in the oral

plea colloquy which, pursuant to Barker, supra, may be clarified by reference to the

written waiver. This construction, however, conflicts with the unequivocal statement of



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law in Veney, supra; namely, “that the court cannot simply rely on other sources to

convey [constitutional] rights to the defendant.” Id. Veney makes it additionally clear

that it is the trial court’s obligation to verbally inform the defendant and obtain an actual

knowing, intelligent, and voluntary waiver of his or her rights. By clarifying the alleged

ambiguity by reference to the written plea agreement, we are relying exclusively on an

outside source and therefore presuming waiver. See State v. Young, 11th Dist. Trumbull

No. 2009-T-0130, 2011-Ohio-4018 (noting “after Veney it is clear that obtaining a signed

written waiver is insufficient when the trial court completely omits an explanation of a

constitutional right * * *.” Id. at ¶43).

          {¶9}   In order to satisfy constitutional due process, there must be some actual

indication the trial court orally mentioned a jury would be involved were the matter tried.

This does not necessarily mean the reference to a jury must overtly advise a defendant

she has a right to a jury trial which she would be waiving by pleading guilty;

nevertheless, the reference or statement must meaningfully inform a defendant of the

right in a reasonably intelligible fashion. For instance, by indicating “neither a judge nor

jury” has the right to pass judgment on a defendant’s decision not to testify, a trial court

directly implies a defendant is entitled to have the jury adjudicate his or her case. See

Ballard, supra.     Similarly, if a court states it would “instruct the jury” that a defendant’s

decision not to testify cannot be used against that defendant, it stands to reason that the

defendant has a right to have a jury consider the merits of the charges he or she is

facing.     See State v. Hayward, 6th Dist. Wood No. WD-17-010, 2017-Ohio-8611.

Likewise, when a court advises a defendant that the state will have to prove all

elements of the charge(s) to the unanimous satisfaction of a jury, it necessarily follows

that the defendant would be entitled to a jury trial if he or she elected to so proceed.


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See Young, supra and State v. Smiddy, 2d Dist. Clark No. 2014-CA-148, 2015-Ohio-

4200. In this case, there was simply no reference to appellant’s constitutional right to a

jury. As such, we cannot conclude appellant had even implicit notice that she was

entitled to a trial by jury and thus we cannot conclude she knowingly, intelligently, and

voluntarily waived.

       {¶10} We are aware that this court, as well as other courts, have upheld pleas

where trial courts included no reference to the word “jury” in their plea colloquys.

Specifically, in State v. Gibson, 11th Dist. Portage No. 2005-P-0066, 2006-Ohio-4182,

the defendant signed a written plea of guilty which provided he would be waiving his

right to a jury trial. At the plea and sentencing hearing, however, the trial court did not

use the word “jury” when referencing the defendant’s constitutional rights. Rather, the

trial judge asked the defendant if he understood he was “giving up [his] right to a trial

when [he] plead[ed] guilty[.]” Id. at ¶15. Appellant responded in the affirmative. This

court, applying Ballard, held the plea colloquy, in conjunction with the written plea, was

sufficient to meet the strict compliance standard. Id. at ¶29.

       {¶11} Similarly, in State v. DeArmond, 108 Ohio App.3d 239 (1st Dist.1995), the

defendant’s     written    plea    explicitly   provided   that   he   was   waiving   his

constitutional right to a jury trial. Id. at 245.   The trial court, however, advised the

defendant that he was merely waiving his right to go to trial, omitting the word “jury.”

The First Appellate District applied Ballard and held that a defendant was “meaningfully

informed” of his constitutional rights in a manner that was reasonably intelligible to the

defendant. Id. at 246. Quoting Ballard, the court observed: “‘[t]o hold otherwise would be

to elevate formalistic litany of constitutional rights over the substance of the dialogue




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between the trial court and the accused. This is something we are unwilling to do.’” Id.,

quoting Ballard, supra, at 480.

       {¶12} Also, in State v. Benjamin, 8th Dist. Cuyahoga No. 73017, 1998 WL

564037 (Sept. 3, 1998), the Eighth District held that the defendant’s guilty plea should

not be vacated where the trial court informed him that he had “‘a right to a trial’” and that

“‘we’re here for trial in your case.’” Id. at *3. The court determined: “[b]ecause the exact

language of Crim.R. 11(C) is not required to be used, and because the trial court

explained his right in a manner reasonably intelligible to him, defendant was aware and

adequately informed of his right to a jury trial.” Id.

       {¶13} Gibson, DeArmond, and Benjamin were decided before Veney. In light of

the express requirement that a court must orally inform a defendant of his or her

constitutional rights and cannot rely exclusively on “other sources” to meet its

obligations, we conclude these cases are inconsistent with controlling precedent.

       {¶14} To meet the requirements of due process, the trial court must orally advise

the defendant of his or her right to a jury trial in a manner reasonably intelligible to that

defendant. The trial court failed to do so in this case. Appellant’s plea is therefore

invalid.

       {¶15} Appellant’s assignment of error has merit.

       {¶16} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is reversed and the matter is remanded.



THOMAS R. WRIGHT, P.J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

                                _______________________


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DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

       {¶17} I respectfully dissent and would affirm the validity of Megan Ralston’s

guilty plea.

       {¶18} The majority duly notes the several cases which have affirmed guilty pleas

despite the trial court’s failure to expressly advise the defendant that he is waiving his

right to a “jury trial” as opposed to merely a “trial.” In each of these cases, as in the

present case, the defendant’s written plea agreement properly qualified the “trial” being

waived as a “jury trial.”

       {¶19} The majority declines to follow this authority, however, on the grounds

that, “[a]t no point * * * did the court * * * reference a jury during [Ralston’s] plea

colloquy.” Supra at ¶ 7. In other words, an incidental reference to a “jury” somewhere

else in the plea colloquy is sufficient to render the plea constitutionally valid. Without

such incidental reference, the majority finds the plea invalid, even though the defendant

acknowledges, in writing, her knowledge of her right to a “jury” trial.

       {¶20} The majority rests its position on the point that “the court cannot simply

rely on other sources to convey [constitutional] rights to the defendant.” State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 29. The majority disregards

the equally valid point that “[a]n alleged ambiguity during a Crim.R. 11 oral plea colloquy

may be clarified by reference to other portions of the record, including the written

plea.” (Emphasis added.) State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953

N.E.2d 826, paragraph two of the syllabus.

       {¶21} Here, Ralston was expressly advised by the trial court that she was

waiving her right to a trial. The only ambiguity in the colloquy was whether this was a

right to a jury trial or a bench trial. Courts are not required to define “trial” for the


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defendant. Ralston’s written plea clarifies any such ambiguity by the qualifying word

“jury.” Of the essential right, that of a trial, however, Ralston was advised in compliance

with Criminal Rule 11 and the constitutional mandate.

       {¶22} The federal courts would hold that Ralston was adequately advised of her

constitutional rights and would affirm her plea. State v. Bourque, 933 F.2d 1016, 1991

WL 86895, *2 (9th Cir.) (“the fact that the Massachusetts sentencing court referred to

waiver of the right to ‘trial’ rather than ‘jury trial’ when Bourque entered his guilty pleas”

did not render “those pleas unknowing and involuntary”) (cases cited); Guillory v. Cain,

W.D.La. No. 6:14-cv-1008, 2014 WL 6909683, *6 (Dec. 5, 2014) (“where it appears the

accused was generally advised of his rights, the failure to make an express, specific

reference to the right to a jury trial, as opposed simply to a trial, does not invalidate a

guilty plea”); United States v. Locke, 293 F.Supp.3d 559, 567, fn. 8 (E.D.Vir.2018)

(“Boykin does not require specific articulation of the right to trial by a jury”) (citation

omitted).

       {¶23} The majority cites no authority for the proposition that Criminal Rule 11

sets a higher standard for what constitutes a voluntary, knowing, and intelligent plea

than the standard set by the United States Supreme Court in Boykin.

       {¶24} For the foregoing reasons, I respectfully dissent and would affirm the

decision of the court below.




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