[Cite as State v. Sherman, 2011-Ohio-1810.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95716


                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                                  CORNELL SHERMAN

                                                    DEFENDANT-APPELLANT



                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-432637

        BEFORE: Jones, P.J., Cooney, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                     April 14, 2011
FOR APPELLANT

Cornell Sherman, Pro se
Inmate #452-521
RI.C.I.
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, P.J.:

       {¶ 1} This cause came to be heard upon the accelerated calendar

pursuant to App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of

counsel.

       {¶ 2} Defendant-appellant, Cornell Sherman, appeals from the trial court’s judgment

denying his motion to vacate his guilty plea.   We affirm.
                                        I.    Procedural History

       {¶ 3} In 2003, Sherman was indicted on charges of aggravated murder, murder,

aggravated burglary, felonious assault, and kidnapping.      That same year, Sherman pleaded

guilty to amended Count 3, involuntary manslaughter, and Count 4, aggravated burglary.       The

remaining charges were nolled.    The trial court sentenced Sherman to an agreed sentence of

20 years.   Sherman appealed his sentence, but it was upheld on appeal. State v. Sherman,

Cuyahoga App. No. 84301, 2004-Ohio-6636.

       {¶ 4} In 2007, Sherman filed a motion to withdraw his guilty plea.        The trial court

denied the motion.     No appeal was taken.        In 2010, Sherman filed another motion to

withdraw his guilty plea, which was again denied.      Sherman now appeals from the judgment

denying his second motion to withdraw his guilty plea and assigns the following errors for our

review:

       “[I.] The trial court prejudiced defendant/appellant when it failed to inform him of his
               constitutionally guaranteed right against self-incrimination.

       “[II.] The trial court prejudiced defendant when it failed to inform defendant he had a
               right to face his accusers.

       “[III.] The trial court prejudiced defendant when it failed to inform him of his
               constitutional right to compulsory process to present his own evidence at trial or
               a bench trial.”

                                        II.   Law and Analysis
       {¶ 5} Sherman’s claims are barred by the doctrine of res judicata.               Under that

doctrine, claims that were raised or could have been raised on direct appeal are precluded from

later being raised. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶

6.   This court has held that the doctrine of res judicata bars all claims raised in a Crim.R. 32.1

motion for withdrawal of guilty plea that were raised or could have been raised in a prior

proceeding, including a direct appeal.   See, e.g., State v. Fountain, Cuyahoga App. Nos. 92772

and 92874, 2010-Ohio-1202, ¶ 9; State v. McGee, Cuyahoga App. No. 91638,

2009-Ohio-3374, ¶9; State v. Pickens, Cuyahoga App. No. 91924, 2009-Ohio-1791, ¶5.                A

petition for postconviction relief may defeat the res judicata bar only if its claims are based

upon evidence outside the record.        State v. Cole (1982), 2 Ohio St.3d 112, 113-114, 443

N.E.2d 169.

       {¶ 6} Sherman’s second motion to withdraw his guilty plea was based on the following

allegations that the trial court failed to: (1) execute a written jury waiver prior to accepting his

plea; (2) properly inform him of the right to compulsory process; (3) properly inform him of his

right against self-incrimination; and (4) properly inform him of his right to face his accusers.

All of these grounds upon which Sherman sought vacation of his plea were based upon

information in the record at the time of the direct appeal — there was no need to supplement

the record with outside information, and in fact, Sherman did not.         Thus, his claims were

barred by res judicata.
       {¶ 7} Notwithstanding the above, review of the record demonstrates that the trial court

complied with Crim.R. 11 in accepting Sherman’s plea.            In order for a plea to be given

knowingly and voluntarily, the trial court must follow the mandates of Crim.R. 11(C).            If a

defendant’s guilty plea is not voluntary and knowing, it has been obtained in violation of due

process and is void. Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23

L.Ed.2d 274.

       {¶ 8} Sherman’s allegations of the trial court’s noncompliance with Crim.R. 11 related

to constitutional requirements.    A trial court must strictly comply with Crim.R. 11 as it

pertains to the waiver of federal constitutional rights. State v. Veney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, syllabus.        These include (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.    Id.

       {¶ 9} The trial court strictly complied in advising Sherman of his constitutional rights,

and Sherman indicated that he understood.        We are not persuaded by Sherman’s argument
                                             1




that the trial court did not strictly comply with Crim.R. 11 because in advising him of his right

against self-incrimination it did not advise him that he had the “right not to be forced to testify

against himself.”



       1
        Sherman did not file the transcript of the plea proceedings as part of the record on appeal,
       {¶ 10} Crim.R. 11(C)(2)(c) provides that before accepting a plea, a trial court must

inform a defendant that he has a right to a “trial at which the defendant cannot be compelled to

testify against himself or herself.”     The trial court advised Sherman of his right against

self-incrimination as follows: “if we went to trial you’d have the right to remain silent and not

testify and no one could comment on the fact that you did not testify.”

       {¶ 11} Although a trial court must strictly comply with the mandates of Crim.R. 11 with

respect to constitutional rights, that does not mean that the rule’s exact language must be

followed. State v. Freed, Cuyahoga App. No. 90720, 2008-Ohio-5742, ¶37.                    The Ohio

Supreme Court has recognized that literal compliance with the wording of Crim.R. 11(C)(2) is

not required and that the focus upon review is whether the record shows the trial court

explained the right “in a manner reasonably intelligible to that defendant.”         State v. Ballard

(1981), 66 Ohio St.2d 473, 480, 423 N.E.2d 115.

       {¶ 12} The “right to remain silent” has been described as a “term of art synonymous

with the Fifth Amendment privilege against self-incrimination.” State v. Henderson,

Montgomery App. No. 21425, 2006-Ohio-6306, ¶7.              The trial court’s advisement here was

done so “in a manner reasonably intelligible” to Sherman and amounted to strict compliance.
                                                                                                    2




Ballard at id.


ostensibly because the transcript was an exhibit to Sherman’s second motion to withdraw his plea.

       See State v. Flynn, Cuyahoga App. No. 93588, 2010-Ohio-3191; State v. Ortiz, Cuyahoga
       2

App. No. 91626, 2009-Ohio-2877; State v. Bassett, Cuyahoga App. No. 90887, 2008-Ohio-5597, ¶20;
       {¶ 13} In regard to Sherman’s contention that his plea should have been vacated

because he did not execute a jury waiver form prior to the court accepting his plea, “[i]t is well

established that the entry of a plea of guilty by an accused constitutes a waiver of a jury trial.”

McAuley v. Maxwell (1963), 174 Ohio St. 567, 568, 190 N.E.2d 922.            Therefore, because a

guilty plea obviates the necessity of a trial, there is no need for a defendant to execute a jury

waiver form prior to entering a plea.

       {¶ 14} In light of the above, Sherman’s three assignments of error are overruled and the

trial court’s judgment is 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.

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

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS
IN JUDGMENT ONLY



State v. Ip, Cuyahoga App. No. 86243, 2006-Ohio-2303.
