[Cite as State v. Miller, 2018-Ohio-843.]


                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105363




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                            SHAWN M. MILLER

                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                             REVERSED, VACATED, AND REMANDED




                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-16-604581-A

        BEFORE: E.T. Gallagher, J., Keough, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: March 8, 2018
ATTORNEY FOR APPELLANT

Patrick J. Milligan
Patrick J. Milligan Co., L.P.A.
18615 Detroit Avenue, Suite 201
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Glen Ramdhan
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN T. GALLAGHER, J.:

        {¶1} Defendant-appellant, Shawn Miller, appeals his convictions, and raises one

assignment of error:

        The trial court committed reversible error in accepting appellant’s plea without
        inquiring as to whether appellant understood that by making the plea he was
        waiving certain constitutional rights as set forth in Crim.R. 11(C)(2)(c).

        {¶2} We find merit to the appeal, reverse the trial court’s judgment, and remand to the

trial court to vacate Miller’s guilty pleas.

                                 I. Facts and Procedural History

        {¶3} Miller was charged with four counts of attempted murder, five counts of aggravated

arson, one count of arson, five counts of felonious assault, and one count of breaking and

entering. Miller agreed to plead guilty to one count of aggravated arson, one count of arson, and
one count of felonious assault, and the state agreed to nolle the remaining counts. At the plea

hearing, the court informed Miller of his constitutional and nonconstitutional rights, but never

expressly stated that by pleading guilty, Miller was waiving those rights. Miller nevertheless

pleaded guilty according to the terms of the plea agreement, and the court sentenced him to an

aggregate eight-year prison term. Miller now appeals his convictions.

                                     II. Law and Analysis

       {¶4} In his sole assignment of error, Miller argues his guilty pleas should be vacated as

involuntarily made because the trial court failed to ensure that he understood that, by pleading

guilty, he was waiving the constitutional rights enumerated in Crim.R. 11(C)(2)(c).

       {¶5} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d

450 (1996). The purpose of Crim.R. 11(C) is to convey relevant information to the 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).

       {¶6} We review the trial court’s compliance with the requirements of Crim.R. 11(C) de

novo. State v. Cardwell, 8th Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v.

Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).

       {¶7} Crim.R. 11(C)(2)(c) provides, in relevant part:

       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 * * * [i]nforming 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.
Strict compliance by the trial court is required for the waiver of the constitutional rights set forth

under Crim.R. 11(C)(2)(c). State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 18.       Substantial compliance with the rule is sufficient for the instruction on the

nonconstitutional rights set forth in Crim.R. 11(C)(2)(a) and (b). Veney at ¶ 14-17.

       {¶8} Strict compliance equates to literal compliance with Crim.R. 11(C)(2)(c), though

rote recitation of the rule is not required. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 18, 27 (exact language is preferred, but rote recitation of the rule is not required for

strict compliance).

Failure to use the exact language contained in Crim.R. 11(C) in informing a criminal defendant

of his constitutional rights 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 the defendant. Id. at ¶ 18,

citing State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

       {¶9} Although verbatim language is not required, the Ohio Supreme Court encourages a

word-for-word recitation of Crim.R. 11(C) when accepting guilty pleas. In Ballard, the court

explained that

       it is important to emphasize that the interest of finality is to be protected when
       accepting a guilty plea. With that interest in mind, the best method of informing
       a defendant of his constitutional rights is to use the language contained in Crim.
       R. 11(C), stopping after each right and asking the defendant whether he
       understands the right and knows that he is waiving it by pleading guilty. We
       strongly recommend such procedure to our trial courts.
Ballard at 480.

       {¶10} During the Crim.R. 11 colloquy, the trial court explained the constitutional rights

enumerated in Crim.R. 11(C)(2)(c) to Miller and his codefendants as follows:

       THE COURT: As good as the plea bargains might sound to people, nobody is
       under an obligation to accept them. You’re welcome to stay with not guilty and
       go to trial instead. Right, Mr. Miller?
DEFENDANT MILLER: Yes, Your Honor.

*   *    *

THE COURT: And if you go to trial, you always have your lawyers. Can’t afford
one, one is appointed no cost to you. Understood, * * * Mr. Miller?

DEFENDANT MILLER: Yes, Your Honor.

THE COURT: And you know that at trial you’re presumed innocent. The burden
is on the prosecutor. They have to come in with evidence. They have to prove
each of the original charges against you with evidence beyond a reasonable doubt.

If there is one or more charges on the list that they cannot prove beyond a
reasonable doubt, you would be acquitted and discharged of that count if they
couldn’t prove to that degree. Understood, Mr. Miller?

DEFENDANT MILLER: Yes, Your Honor.

*    *       *

THE COURT: So at trial you’re welcome to take the witness stand in your
defense but you have a right to stay off the stand and remain silent. No one can
make you talk or even comment on your silence. Understood, * * * Mr. Miller?

*   *    *

DEFENDANT MILLER: Yes, Your Honor.

THE COURT: And do you understand that you and your lawyer get to
cross-examine all the witnesses that the prosecutor brings in here to try to build a
case against you[.] * * * You understand that? * * * Do you, Mr. Miller?

DEFENDANT MILLER: Yes.

THE COURT: Okay. So the other thing you need to know, your lawyer can issue
subpoenas to select your witnesses, get them on the witness stand. The Court
will enforce those subpoenas to help you get them here to testify for you. * * *
Understood, Mr. Miller?

DEFENDANT MILLER: Yes, Your Honor.

THE COURT: Any questions from any of you?
       *   *    *

       DEFENDANT MILLER: No.

(Tr. 41-45.) After ensuring that the defendants understood each of these constitutional rights,

the court explained the nature of the charges and their potential penalties. However, the trial

court never expressly stated, or inquired as to whether Miller understood, that by pleading guilty,

he was waiving his constitutional rights.

       {¶11} Miller contends the trial court was required under Crim.R. 11(C)(2)(c) to (1)

explain that he was waiving his constitutional rights by virtue of his guilty plea, and (2)

specifically ask him if he understood that he was waiving these rights. He further argues that, by

not specifically inquiring as to whether Miller understood he was waiving his constitutional

rights, the trial court failed to strictly comply with Crim.R. 11(C)(2)(c), and the plea must be

vacated.

       {¶12} The Tenth District Court of Appeals addressed this issue in State v. Ellis, 10th Dist.

Franklin No.14AP-912, 2015-Ohio-3438, ¶ 10. The trial court in Ellis carefully explained all

the constitutional rights enumerated in Crim.R. 11(C)(2)(c) to the defendant, but never expressly

stated that by pleading guilty the defendant was waiving those rights. The appellate court

nevertheless refused to vacate his guilty pleas and held that whether the defendant understands

the waiver of his constitutional rights is reviewed under a substantial compliance as opposed to a

strict compliance standard. Id. at ¶ 10. The Ellis court reasoned that although Veney holds that

strict compliance is required for the notification of constitutional rights, it allows substantial

compliance for the other aspects of the colloquy. Id. at ¶ 11.

       {¶13} The Seventh District Court of Appeals also addressed this issue in State v. Strebler,

7th Dist. Mahoning No. 08 MA 108, 2009-Ohio-1200. As in Ellis, the trial court in Strebler
described the constitutional rights enumerated in Crim.R. 11(C)(2)(c) and ensured that the

defendant understood them, but never explained that the defendant was waiving these rights by

pleading guilty. However, in contrast to the court in Ellis, the Strebler court held, citing Veney,

that strict compliance required not only an explanation of each of the constitutional rights, but

also an explanation that by entering a guilty plea, the defendant is waiving those rights. Id. at ¶

36.

       {¶14} We agree with the Seventh District’s interpretation that strict compliance with the

rule is required when considering whether a defendant knowingly, intelligently, and voluntarily

waived the constitutional rights enumerated in Crim.R. 11(C)(2)(c). In Veney, the court held:

       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 a trial court fails to strictly comply with this duty, the defendant’s plea is
       invalid.

(Emphasis added.) Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at syllabus.

Indeed, the court in Veney reaffirmed its prior decision in Ballard, 66 Ohio St.2d 473, 423

N.E.2d 115 in which the Ohio Supreme Court held:

       Prior to accepting a guilty plea from a criminal defendant, the trial court must
       inform the defendant that he is waiving his privilege against compulsory
       self-incrimination, his right to jury trial, his right to confront his accusers, and his
       right of compulsory process of witnesses. (Boykin v. Alabama, 395 U.S. 238,
       followed.)

Ballard at paragraph one of the syllabus.

       {¶15} Common sense dictates that by pleading guilty, the defendant is not going to

receive a trial nor require the state to prove the charges beyond a reasonable doubt, and there will

be no need to subpoena and cross-examine witnesses. Strebler at ¶ 36. There is an implicit
understanding that by entering a guilty plea, the defendant is waiving the rights associated with

trial. However, in Veney the court held that the court’s failure to strictly comply with the

requirements of Crim.R. 11(C)(2)(c) renders the plea invalid. Veney at ¶ 32.

        {¶16} The trial court ensured that Miller understood all of the constitutional rights

relative to his right to trial, but neglected to ensure that Miller understood that his guilty pleas

constituted a waiver of those rights. Therefore, because the trial court failed to strictly comply

with the requirements of Crim.R. 11(C)(2)(c) with respect to the waiver of Miller’s constitutional

rights, Miller’s guilty pleas are invalid.

        {¶17} The sole assignment of error is sustained.

        {¶18} The trial court’s judgment is reversed, Miller’s pleas are vacated, and we remand

the case to the trial court for further proceedings.

        It is ordered that appellant recover from appellee 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.




        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.


EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION
MELODY J. STEWART, J., DISSENTING:

       {¶19} It is true that the court never used the word “waive” in its plea colloquy with

Miller. And it is also true that State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, specifically states that compliance with Crim.R. 11(C)(2)(c) requires a trial to judge to

advise a defendant that a guilty plea “waives” certain rights. However, the Ohio Supreme Court

has been very clear that magic words for a waiver are not required. State v. Lomax, 114 Ohio

St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279 (“We do not mandate magic words, or a prolonged

colloquy, but simply what Ohio law intends — that a defendant while in the courtroom and in the

presence of counsel, if any, acknowledge to the trial court that the defendant wishes to waive the

right to a jury trial.”).    See also State v. Cvijetinovic, 8th Dist. Cuyahoga No. 81534,

2003-Ohio-563, ¶ 6; State v. Godwin, 8th Dist. Cuyahoga No. 103224, 2016-Ohio-117, ¶ 24;

State v. Toney, 8th Dist. Cuyahoga No. 90605, 2008-Ohio-6473, ¶ 17.

       {¶20} In fact, we have long held that a trial judge need not explicitly use the word

“waive” when advising the defendant of his rights.           See, e.g., State v. Elmore, 8th Dist.

Cuyahoga No. 56246, 1990 Ohio App. LEXIS 194, 1-2 (Jan. 18, 1990) (“The court could

determine that defendant fully understood that he was waiving various rights, despite the fact that

the court did not use the word ‘waive.’”); State v. Bryant, 8th Dist. Cuyahoga No. 36778, 1978

Ohio App. LEXIS 9448, 3-4 (Jan. 12, 1978) (“It is true that the court never used the exact words,

‘waiving your rights’; however, it is clear from the circumstances surrounding the plea that the

appellant was being told that he was giving up his rights to go to trial.”).

       {¶21} In this case, the trial judge decided to conduct Miller’s plea colloquy in language

that she thought he would understand — instead of phrasing the colloquy in terms of what rights
Miller would waive by pleading guilty, she phrased it in terms of what rights Miller would have

if he elected to go to trial. As the majority acknowledges, the trial judge informed Miller that he

did not have to plead guilty. He was told that he had a right to trial by jury, or before a judge; a

right to confront and cross-examine witnesses; a right to subpoena witnesses; and a right to

testify or remain silent. The trial judge told Miller that the state had the burden of proving guilt

beyond a reasonable doubt. Miller expressly stated that he understood that he retained all of

these rights if he chose not to plead guilty and elected to have a trial.

       {¶22} We have on several occasions affirmed guilty pleas on nearly identical facts. For

example, in State v. Boysaw, 8th Dist. Cuyahoga No. 52052, 1987 Ohio App. LEXIS 6902, 5

(Apr. 16, 1987), Boysaw argued that he did not enter a knowing and intelligent guilty plea

because the court did not tell him that his guilty pleas waived certain rights. This is how the

court handled the plea colloquy in that case:

       THE COURT: I must advise you and I am sure you know that you don’t have to
       plead to anything unless you desire. Do you understand that?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: You could have a trial before a judge alone or a judge and jury.
       You know that?

       THE DEFENDANT: Yes, your Honor.

       THE COURT: Further, if you wish the trial, you will have the right to be
       confronted by anyone who testifies against you and your lawyer would have an
       opportunity to cross-examine those people. You could use the subpoena process to
       require witnesses to testify in your behalf.

       And I remind you that it’s always necessary that the State of Ohio prove your guilt
       beyond a reasonable doubt. It’s not necessary that you prove your innocence.

       Are you aware of all those rights?

       THE DEFENDANT: Yes, your Honor.
        THE COURT: Further, if you wish a trial, you have the right to take the witness
        stand and testify in your own behalf or in the alternative, you could remain silent.
        If you indeed choose to remain silent, the State would be prevented from
        commenting on the fact that you exercised your constitutional right.

        Are you aware of all those rights?

        THE DEFENDANT: Yes, your Honor. (Emphasis sic.)

Id. at 5-6.

        {¶23} We stated that “[w]hile the court did not use the word ‘waive,’ it sufficiently

explained the defendant’s choice whether to retain those rights rather than pleading guilty.” Id.

at 6. For this reason, we found that the court complied with Crim.R. 11(C). Id.

        {¶24} Likewise, in State v. Valentine, 8th Dist. Cuyahoga No. 51929, 1987 Ohio App.

LEXIS 7205, 3 (May 28, 1987), the court informed Valentine of his Crim.R. 11 rights and stated

that “each and every one of these will be available to you and will be granted to you in the event

you wish to maintain your plea of not guilty and have a trial.” Relying on Boysaw, we rejected

Valentine’s argument that the court violated Crim.R. 11(C) by failing to use the word “waiver” in

its explanation of his rights and concluded that his acknowledgment that he “understood the

ramifications of the plea” showed that the court properly accepted his guilty plea. Id. at 4.

        {¶25} Finally, in State v. Hinzman, 8th Dist. Cuyahoga No. 59062, 1991 Ohio App.

LEXIS 4728, 5 (Oct. 3, 1991), the court told Hinzman:

        You have trial rights. I’ll explain them to you. The prosecutor at a trial is
        obliged to prove your guilt beyond a reasonable doubt. In his efforts to do this,
        he would produce witnesses whom you have a right to confront and through your
        counsel cross-examine. You may have witnesses subpoenaed in your own favor.
        You personally may testify. You may exercise your constitutional privilege and
        refuse to testify, to which fact the prosecutor may not comment.

Id. at 5.
       {¶26} Rejecting the argument that Hinzman had not “literally” been informed that he

would be waiving his trial rights by pleading guilty, we found that “[a]lthough the trial court did

not expressly state that appellant would ‘waive’ these rights, appellant was informed of his right

to retain them rather than plead guilty.” Id. at 6.

       {¶27} Perhaps it would have been better in this case for the trial judge to speak in terms

of the rights that Miller would waive by pleading guilty rather than the rights that Miller would

have if he elected to go trial. But these are two sides of the same coin. Miller was aware that

his guilty plea constituted a complete admission of guilt. The court asked, “[d]oes everybody

understand that pleading guilty is like giving a speech, and the speech goes, * * * I did these

crimes right here, and I admit I did each one of them.” Miller also knew that his guilty plea

meant that he would not be getting a trial. The court stated, “[a]s good as the plea bargains

might sound to people, nobody is under an obligation to accept them. You’re welcome to stay

with not guilty and go to trial instead.” Under the totality of the circumstances, Miller knew what

rights he would lose if he pleaded guilty, or in the inverse used by the court, the rights he would

have had if he went to trial. The court meaningfully conveyed the substance of Miller’s rights.

That was compliance enough for Crim.R. 11(C).

       {¶28} I respectfully dissent.
