[Cite as State v. Antoine, 2019-Ohio-414.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       PORTAGE COUNTY, OHIO


 STATE OF OHIO,                                  :         OPINION

                  Plaintiff-Appellee,            :
                                                           CASE NO. 2018-P-0009
         - vs -                                  :

 SHAMAR M. ANTOINE,                              :

                  Defendant-Appellant.           :


 Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
 0727 D.

 Judgement: 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).

 Andrew R. Zellers, Richard G. Zellers & Associates, Inc., 3695 Boardman Canfield Road,
 Suite 300, Canfield, OH 44406 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}      Shamar M. Antoine appeals from the November 28, 2017 judgment entry of

the Portage County Court of Common Pleas, sentencing him to a total of five years

imprisonment for robbery and grand theft. Mr. Antoine contends that at his change of

plea hearing, the trial court failed to inform him he was waiving his right to jury trial, and

that he had a right to appeal and have appellate counsel appointed. For the reasons

following, we reverse and remand.
       {¶2}    August 10, 2017, the Portage County Grand Jury indicted Mr. Antoine on

two counts of theft, one of burglary, one of grand theft, and one of safecracking. He

pleaded not guilty. Discovery and plea negotiations ensued. October 30, 2017, Mr.

Antoine pleaded guilty to burglary and grand theft, the state nolling the other charges.

The written plea of guilty informed Mr. Antoine he was waiving his right to jury trial, but

the trial court simply told him he was waiving his right to trial. The trial court did not inform

him of his right to appeal, so consequently, he did not.

       {¶3}    On being informed by a fellow inmate that he could move this court to file a

delayed appeal, Mr. Antoine did so, and this court granted the motion. Mr. Antoine

assigns a single error: “The trial court committed an error when it failed to advise the

defendant of his right to a jury trial and his right to counsel on appeal, thus violating his

5th, 6th, and 14th Amendment rights under the U.S. Constitution and his rights under Article

I, Section 10 of the Ohio Constitution.”

       {¶4}    When accepting a plea, a trial court must strictly comply with Crim.R.

11(C)(2)(c) by notifying the defendant of the constitutional rights being waived by entering

the plea. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶13-14. This includes

the fact that the defendant is waiving the right to trial by jury. Crim.R. 11(C)(2)(c). The

right to jury trial is one of the constitutional rights listed at Crim.R. (C)(2)(c): consequently,

the trial court was required to inform Mr. Antoine he was waiving, not the right to trial, but

the right to jury trial. Failure to “meaningfully inform” a defendant that he or she is waiving

the right to jury trial is plain error. State v. Porterfield, 11th Dist. Trumbull No. 2002-T-

0045, 2004-Ohio-520, ¶23.




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       {¶5}   However, the state points to this court’s decision in State v. Gibson, 11th

Dist. Portage No. 2005-P-0066, 2006-Ohio-4182, in which the trial court informed the

defendant he was waving his right to trial, not jury trial – but the written plea agreement

contained the correct warning. This court stated:

       {¶6}   “In the case at bar, appellant’s signed July 30, 2004 written plea of guilty

clearly stated his right to a trial by jury. However, at the plea and sentencing hearing, the

trial court did not use the word ‘jury’ when referencing appellant’s constitutional rights.

Specifically, the trial judge asked appellant if he understood that he was ‘giving up (his)

right to a trial when (he) plead(ed) guilty(.)’ Appellant responded in the affirmative. The

trial judge explained to appellant that he would ‘give up the right to confront, cross-

examine and subpoena witnesses (* * *) (and) also relieve the State the burden of proving

(his) guilt beyond a reasonable doubt at a trial where (he) could not be compelled to

testify(.)’ Appellant stated that he understood.

       {¶7}   “The record here demonstrates that the trial court ‘meaningfully informed’

appellant as to his rights in a manner which allowed the trial court to determine that he

understood the waiver of such rights.” Id. at ¶15-16.

       {¶8}   However, in the recent case of State v. Ralston, 11th Dist. Portage No.

2017-P-0095, 2018-Ohio-4946, ¶9, this court held:

       {¶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




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reasonably intelligible fashion. For instance, * * * 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. * * * 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. * * * 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.” (Internal citations omitted.)

       {¶10} Further, in Ralston, at ¶13, this court held:

       {¶11} “Gibson, * * * [was] decided before [State v.] Veney [120 Ohio St.3d 176,

2008-Ohio-5200]. 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 [Gibson is] inconsistent with controlling precedent.”

       {¶12} This argument has merit.

       {¶13} Mr. Antoine also contends the trial court erred by failing to inform him he

had a constitutional right to appeal, and have appellate counsel appointed for him.

       {¶14} We agree it was error for the trial court to fail to inform Mr. Antoine he had

a right to appeal. However, this error was cured when this court granted his motion for

delayed appeal. And while Ohio grants both a constitutional right and a statutory right of

appeal to criminal defendants, it makes no provision in the constitution for appointment

of appellate counsel in cases like this one.




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       {¶15} This argument lacks merit.

       {¶16} The judgment of the Portage County Court of Common Pleas is reversed

and remanded for further proceeding consistent with this opinion.



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

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



                                           _____________________



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



       {¶17} I respectfully dissent and would affirm the validity of Antoine’s guilty plea for

the reasons stated in my dissent in State v. Ralston, 11th Dist. Portage No. 2017-P-0095,

2018-Ohio-4946, ¶ 17-24 (Grendell, J., dissenting). The mere fact that the trial court

judge failed to qualify the right to a trial being waived as a right to a jury trial does not

undermine the knowing, intelligent, and voluntary nature of the plea itself. In the Written

Plea of Guilty, signed by Antoine, he acknowledged his intention to waive his “right to a

jury trial” by pleading guilty. Any ambiguity about the nature of the trial being waived was

thus mitigated. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826,

paragraph two of the syllabus (“[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).

       {¶18} Accordingly, I dissent and would affirm the decision of the court below.




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