[Cite as State v. King, 2011-Ohio-3664.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                          C.A. No.        25228

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DARRIUS C. KING                                        COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 07 06 1806

                                 DECISION AND JOURNAL ENTRY

Dated: July 27, 2011



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}     In August 2007, D’Arrius King pleaded guilty to one count of felonious assault, a

felony of the second degree. The trial court sentenced him to five years in prison and to a period

of post-release control of up to three years. In January 2009, Mr. King moved to withdraw his

guilty plea, and the trial court denied that motion. On appeal from that denial, this Court vacated

his sentence and remanded for resentencing. In October 2010, prior to being resentenced, Mr.

King again moved to withdraw his guilty plea, and the trial court again denied his motion and

sentenced him to five years in prison. He has again appealed, arguing that the trial court erred by

originally accepting his guilty plea and in denying his motions to withdraw it.

                                           INVALID PLEA

        {¶2}     Mr. King’s first assignment of error is that the trial court incorrectly accepted his

guilty plea. He has argued that the court did not meet its duty under Rule 11(C)(2)(c) of the
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Ohio Rules of Criminal Procedure because it did not advise him, before accepting his felony

plea, that he was waiving his constitutional right to a jury trial and to confront witnesses against

him.

       {¶3}    Although the trial court mentioned Mr. King’s right to a trial at his change of plea

hearing, it failed to adequately explain that it was a jury trial. The court simply said that Mr.

King’s rights included “the right to have a trial where you are represented by your counsel, and

for you to remain silent at that trial if you choose, and that fact couldn’t be used against you

according to law and the jury would be so instructed.” Mr. King has argued that the trial court

failed to strictly comply with Rule 11(C)(2)(c) of the Ohio Rules of Criminal Procedure and that

his right to a jury trial was, at best, only implied, making his plea invalid.

       {¶4}    Mr. King has also argued that the trial court failed to advise him of his right to

confront witnesses against him.       The court said, “[n]ow, at the trial your attorney would

challenge the evidence which the State will bring against you.” Mr. King has argued that this

statement was too vague and did not sufficiently explain his right. He has argued that evidence

is a general term and merely stating that his lawyer would challenge evidence at trial did not

adequately explain his constitutional right to confront his accusers.

       {¶5}    The State has conceded that the trial court failed to adequately advise Mr. King

that he had the right to a jury trial and to confront his accusers before accepting his guilty plea.

Under Rule 11(C)(2)(c) of the Ohio Rules of Criminal Procedure, “[i]n 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 and . . . . [i]nforming the

defendant and determining that the defendant understands that by the plea the defendant is

waiving the rights to a jury trial [and] to confront witnesses against him or her[.]” If a trial court
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fails to strictly comply with this rule, the plea will be deemed invalid. State v. Veney, 120 Ohio

St. 3d 176, 2008-Ohio-5200, at ¶18. Although it is preferred that a trial court use the language of

the rule when telling a defendant the constitutional rights he is waiving, failure to do so will not

automatically invalidate a plea. Id. The trial court must, however, explain those rights in a

manner that is reasonably intelligible to the defendant. State v. Ballard, 66 Ohio St. 2d 473, 480

(1981). The purpose for doing so is to assure that the defendant is informed and understands

that, by entering his plea, he is waiving specific constitutional rights.       Id.   Without this

understanding, a defendant cannot enter a plea that is knowing, intelligent, and voluntary and

thus enforcement of it would be unconstitutional. Veney, 2008-Ohio-5200, at ¶7.

       {¶6}    The trial court did not meet its duty to inform Mr. King of his right to a jury trial

and to confront witnesses against him in strict compliance with Criminal Rule 11(C)(2)(c). The

court merely stated that he had a right to a trial and implied that it may be a jury trial.

Implication cannot be seen as a strict and adequate explanation. Also, the court simply told Mr.

King that his attorney would challenge evidence brought against him, but failed to specifically

mention that he had a right to confront his accusers. Evidence is a broad term that can be

interpreted in many ways, and it cannot be assumed that Mr. King understood the specific right

he was waiving.

       {¶7}    Mr. King was not given an adequate explanation of the constitutional rights he

was waiving by entering his guilty plea. Mr. King’s first assignment of error is sustained. His

second and third assignments of error are moot and are overruled on that basis. See App. R.

12(A)(1)(c).
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                                         CONCLUSION

       {¶8}    The trial court incorrectly accepted Mr. King’s guilty plea. It did not adequately

inform him of his constitutional rights to a jury trial and to confront witnesses against him. The

judgment of the Summit County Court of Common Pleas is reversed, and this cause is remanded

for further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                        CLAIR E. DICKINSON
                                                        FOR THE COURT


WHITMORE, P. J.
MOORE, J.
CONCUR
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APPEARANCES:

DEREK CEK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
