[Cite as State v. Clinton, 2018-Ohio-3509.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                     Court of Appeals No. E-17-069

        Appellee                                  Trial Court No. 2017 CR 0302

v.

Phillip S. Clinton                                DECISION AND JUDGMENT

        Appellant                                 Decided: August 31, 2018

                                              *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Martha S. Schultes, Assistant Prosecuting Attorney, for appellee.

        Karin L. Coble, for appellant.

                                              *****

        MAYLE, P.J.

        {¶ 1} Appellant, Phillip S. Clinton, appeals the November 3, 2017 judgment of the

Erie County Court of Common Pleas sentencing him to an aggregate prison term of 34

months for two counts of aggravated assault, in violation of R.C. 2903.12, both felonies

of the fourth degree. For the following reasons, we reverse.
                                      I. Background

       {¶ 2} On July 11, 2017, an Erie County Grand Jury indicted Clinton on eight

different charges: two counts of assault in violation of R.C. 2903.13(A) and (C),

misdemeanors of the first degree; one count of aggravated riot in violation of R.C.

2917.02(A)(2) and (C), a felony of the fourth degree; one count of aggravated riot in

violation of R.C. 2917.02(A)(3) and (C), a felony of the fifth degree; two counts of

felonious assault in violation of R.C. 2903.11(A)(2) and (D)(1)(a), felonies of the second

degree; and two counts of felonious assault in violation of R.C. 2903.11(A)(1) and

(D)(1)(a), felonies of the second degree. The charges stemmed from two separate

incidents, on June 17 and June 25, 2017, in which Clinton was alleged to have acted with

others to physically injure two victims, C.J. and J.G. Clinton pleaded not guilty to all

charges.

       {¶ 3} On September 22, 2017, Clinton pleaded guilty to two amended counts of

aggravated assault, in violation of R.C. 2903.12, both felonies of the fourth degree. In

exchange, the state dismissed all remaining charges.

       {¶ 4} A sentencing hearing was held on November 1, 2017, at which time the trial

court sentenced Clinton to a prison term of 17 months for each count of aggravated

assault, to be served consecutively, for a total term of 34 months.

       {¶ 5} Clinton filed a notice of appeal on December 1, 2017, and raises the

following assignments of error:




2.
              Assignment of Error One: The trial court failed to inform appellant

       of his Constitutional rights prior to accepting appellant’s guilty plea,

       causing the plea to have been made unknowingly and involuntarily.

              Assignment of Error Two: The trial court erred in imposing a

       consecutive sentence because the required statutory findings are not clearly

       and convincingly supported by the record.

              Assignment of Error Three: The trial court failed to impose costs at

       the sentencing hearing and failed to find appellant had the ability to pay

       costs, rendering the imposition of costs invalid.

                                   II. Law and Analysis

                  A. Clinton’s Plea was Unknowing and Involuntary

       {¶ 6} Under both the United States and Ohio Constitutions, a guilty plea must be

made knowingly, intelligently, and voluntarily to be valid. Boykin v. Alabama, 395 U.S.

238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Engle, 74 Ohio St.3d 525, 527, 660

N.E.2d 450 (1996). In Clinton’s first assignment of error, he argues that his plea was

unknowing and involuntary because the trial court did not orally inform him of his

constitutional right to require the state to prove his guilt beyond a reasonable doubt, as

required by Crim.R. 11(C).

       {¶ 7} Under Crim.R. 11(C), before a trial court accepts a guilty plea, the trial court

must personally inform the defendant that by pleading guilty he or she is waiving the

constitutional and non-constitutional rights stated in that rule. When explaining the




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defendant’s non-constitutional rights, the trial court must substantially comply with

Crim.R. 11(C), which “means that under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the rights he is waiving.” State

v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). When explaining the

defendant’s constitutional rights, however, the trial court must strictly comply with

Crim.R. 11(C) or the plea is invalid under the presumption that it was not knowingly and

voluntarily entered. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d

462, ¶ 31. Stated more specifically:

       [A] trial court must strictly comply with Crim.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 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. When the trial court fails to strictly comply

       with this duty, the defendant’s plea is invalid. State v. Veney, 120 Ohio

       St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 31.

       {¶ 8} Here, the trial court engaged in the following colloquy with Clinton at the

plea hearing regarding his constitutional rights:

              THE COURT: Okay. Most importantly, do you understand that by

       entering these pleas of guilty you’re giving up certain Constitutional rights;




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       for instance, you’re giving up your right to trial by jury in this matter; do

       you understand that?

              MR. CLINTON: Yes.

              THE COURT: Giving up your right to confront witnesses, and have

       your attorney cross-examine those witnesses that would testify against you

       at the trial; do you understand that?

              MR. CLINTON: Yes.

              THE COURT: You’re also giving up your right to compulsory

       process, meaning you’re giving up the right to have [your attorney]

       subpoena any witnesses that would testify on your behalf; do you

       understand that?

              MR. CLINTON: Yes.

              THE COURT: All right. And had you proceeded to trial and

       decided not—not to take the witness stand, you understand that no one

       could say anything in front of the jury about the fact that you chose not to

       testify against yourself; do you understand all that?

              MR. CLINTON: Yes.

       {¶ 9} The transcript confirms that the trial court explained four out of the five

constitutional rights that are described in Crim.R. 11(C)(2)(c), but completely failed to

inform Clinton of his constitutional right to require the state to prove his guilt beyond a

reasonable doubt.




5.
       {¶ 10} The state nonetheless argues that the trial court’s failure to orally inform

Clinton of this specific constitutional right created an “ambiguity” that was remedied by

the written plea agreement, which included a paragraph that states:

              I understand by pleading guilty I give up my right to a jury trial or

       court trial, where I could see and have my attorney question witnesses

       against me, and where I could use the power of the Court to call witnesses

       to testify for me. I know at trial I would not have to take the witness stand

       and could not be forced to testify against myself and that no one could

       comment if I chose not to testify. I understand I waive my right to have the

       prosecutor prove my guilt beyond a reasonable doubt on every element of

       every charge. (Emphasis added.)

       {¶ 11} The state is generally correct 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.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953

N.E.2d 826, paragraph two of the syllabus. In Barker, the issue was whether any

ambiguity that resulted from the trial court’s explanation of the constitutional right of

compulsory process of witnesses, which the trial court described as the “right to call

witnesses to speak on your behalf,” could be reconciled by reference to the signed plea

form, which stated that by entering the plea the defendant was waiving his right “[to] use

the power of the court to call witnesses to testify for me.” Id. at ¶ 4-5. The Supreme

Court of Ohio held that an appellate court is permitted to consider additional record




6.
evidence to reconcile an alleged ambiguity that results when a trial court inartfully

explains the defendant’s constitutional rights during the Crim.R. 11 plea colloquy. Id. at

¶ 25.

        {¶ 12} But here, the trial court completely failed to inform Clinton of his

constitutional right to require the state to prove his guilt beyond a reasonable doubt.

Thus, this case is unlike Barker and, instead, on all fours with Veney―which, we note,

was explicitly discussed and reaffirmed in Barker.

        {¶ 13} In Veney, the court held that “[a]lthough 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.” Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, 897 N.E.2d 621, at ¶ 29. There, as here, “the trial court plainly failed to orally

inform Veney of his constitutional right to require the state to prove his guilt beyond a

reasonable doubt.” Id. at ¶ 30. Thus, because the trial court had completely “failed to

orally inform” the defendant of that constitutional right, the court could not “simply rely

on other sources to convey these rights.” Id. at ¶ 29, 30.

        {¶ 14} The same result is required in this case. The trial court completely failed to

orally inform Clinton of his constitutional right to require the state to prove its case

beyond a reasonable doubt, and the state may not “simply rely” on other portions of the

record to remedy that failure. Given that the trial court failed to strictly comply with

Crim.R. 11(C), Clinton’s guilty plea is invalid under the presumption that it was not




7.
knowingly and voluntarily entered. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, at ¶ 31; Veney at ¶ 30.

                                        Conclusion

       {¶ 15} Clinton’s first assignment of error is well-taken, and Clinton’s second and

third assignments of error are moot. We vacate Clinton’s guilty pleas, reverse his

convictions, and remand this case to the trial court for further proceedings.

       {¶ 16} The state is ordered to pay the costs of this appeal under App.R. 24.


                                                                        Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
James D. Jensen, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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