[Cite as State v. Hayes, 2016-Ohio-2794.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                   Plaintiff-Appellee,          :
                                                        CASE NO. 2014-P-0044
          - vs -                                :

DUSTIN T. HAYES,                                :

                   Defendant-Appellant.         :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2013 CR
00019.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Rick L. Ferrara, 2077 East 4th Street, 2nd Floor, Cleveland, OH               44113 (For
Defendant-Appellant).




COLLEEN MARY O’TOOLE, J.

          {¶1}     Dustin T. Hayes appeals from the judgment entry of the Portage County

Court of Common Pleas, sentencing him to an indefinite term of imprisonment of ten

years to life for rape. Mr. Hayes asserts the trial court did not properly inform him of his

constitutional right to remain silent during the Crim.R. 11 colloquy. Finding no error, we

affirm.
       {¶2}   January 11, 2013, the Portage County Grand Jury returned an indictment

in seven counts against Mr. Hayes. Each was for violation of R.C. 2907.02(A)(1)(b) and

(B), alleging Mr. Hayes had engaged in a course of sexual conduct with a 12 year old

girl between October 1, 2012, and December 31, 2012. At his arraignment January 18,

2013, Mr. Hayes pleaded not guilty to all counts. Motion practice ensued. However,

Mr. Hayes entered plea negotiations with the state. June 12, 2013, he entered a written

plea of guilty to one charge of rape. A change of plea hearing took place that day. The

trial court accepted the plea and nolled the remaining counts on motion of the state.

Sentencing hearing went forward September 9, 2013, with the trial court filing its

judgment entry of sentence September 13, 2013.

       {¶3}   July 21, 2014, Mr. Hayes moved this court for leave to file a delayed

appeal, App.R. 5(A). By a judgment entry filed November 10, 2014, we denied the

motion, since Mr. Hayes failed to file a notice of appeal in the trial court as required by

rule. Mr. Hayes thereafter corrected this deficiency; and by a judgment entry filed May

11, 2015, we granted the motion for delayed appeal.

       {¶4}   Mr. Hayes assigns a single error: “The trial court erred in failing to inform

appellant of the consequences of his plea pursuant to the Constitution of the United

States and the State of Ohio, as well as Crim.R. 11.”

       {¶5}   “The standard for reviewing whether the trial court accepted a plea in

compliance with Crim.R. 11(C) is a de novo standard of review.            State v. Stewart,

(1977), 51 Ohio St.2d 86, * * *. It requires an appellate court to review the totality of the

circumstances and determine whether the plea hearing was in compliance with Crim.R.

11(C). Id. at 92-93. Compliance with Crim.R. 11(C) requires the trial court to engage




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the defendant on the record in a reasonably intelligible dialogue.         State v. Ballard

(1981), 66 Ohio St.2d 473, * * *.” (Parallel citations omitted.) State v. Cardwell, 8th

Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶26.

       {¶6}   “The United States and Ohio Constitutions require that a trial court, prior to

accepting a plea of guilty or no contest, determine that the plea is entered into

knowingly, intelligently, and voluntarily. State v. Johnson, 40 Ohio St.3d 130, 132, * * *

(1988), citing Boykin v. Alabama, 395 U.S. 238, * * * (1969). From a constitutional

standpoint, this requires a court to inform a defendant of five rights: his privilege against

compulsory self-incrimination, the right to trial by jury, the right to confront one’s

accusers, his right to have guilt proven by the state beyond a reasonable doubt, and the

right to compulsory process to obtain witnesses – and then determine if the defendant

understands these rights. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, * * *,

¶19; Crim.R. 11(C)(2)(c). In Ohio, Crim.R. 11(C)(2)(c) codifies the court’s obligation to

inform the defendant of the constitutional protections, while Crim.R. 11(C)(2)(a) and (b)

create a further obligation on courts to inform the defendant of other important

information, the understanding of which the state of Ohio deems necessary to a

knowing and voluntary plea. See Veney at ¶14, 18.

       {¶7}   “Crim.R. 11(C)(2) requires that the court conduct an oral dialogue with the

defendant to determine whether the plea is voluntary, and that the defendant

understands, among other things, that if he did choose to go to trial, he would not be

compelled to testify against himself. See Crim.R. 11(C)(2)(c).         While a court must

substantially comply with the dictates of Crim.R. 11 when advising a defendant of his

nonconstitutional rights contained in subsections (C)(2)(a) and (b) – advisement of the




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constitutional protections contained in (C)(2)(c) requires strict compliance with the

statute. See Veney at ¶18. The test for strict compliance is whether ‘the record shows

that the judge explained these rights in a manner reasonably intelligible to the

defendant.’ State v. Ballard, 66 Ohio St. 2d 473, 480, * * * (1981). Strict compliance

contemplates both the trial court’s advisement and the defendant’s response to the

advisement. See id. at 480-481 (conveying that it is the court’s statements and the

defendant’s answers that lead to the conclusion that the defendant either was, or was

not, adequately informed of his rights); accord State v. Truitt, 10th Dist. Franklin No.

10AP-795, 2011-Ohio-2271, ¶14.” (Parallel citations omitted.) State v. Gaines, 8th

Dist. Cuyahoga No.102024, 2015-Ohio-2397, ¶5-6.

       {¶8}   In support of his assignment of error, Mr. Hayes directs our attention to the

following exchange during the plea hearing:

       {¶9}   The Court: “And, sir, do you understand you’re not required to testify

against yourself?”

       {¶10} Mr. Hayes: “Yes.”

       {¶11} The Court: “Are you waiving that right?”

       {¶12} Mr. Hayes: “Yes.”

       {¶13} Mr. Hayes contends this was constitutionally infirm, since the advisement

did not tell him he had the right to remain silent throughout trial, and that this could not

be used against him. He cites to two cases in support. The first is Gaines, supra. In

that case, the trial court informed the defendant he had the “constitutional right ‘to

remain silent and not to testify and (that) no one could comment on the fact that (he) did

not testify at trial[.]’” Id. at ¶7. The defendant asked whether this meant he need not




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testify. Id. In response to this question the trial court stated:

       {¶14} “If we had proceeded to trial, the State of Ohio would have the burden of

proof. That means that the jury would be impaneled, and the State of Ohio would have

the burden of presenting to the jury information and testimony beyond a reasonable

doubt that you committed these offenses, but you would not have any burden at all. Do

you understand?” Id.

       {¶15} The Eighth District concluded this response did not comply with Crim.R.

11(C)(2)(c), since it had nothing to do with the question asked by the defendant –

namely his right to remain silent at trial.

       {¶16} Gaines is obviously distinguishable from this case.            In Gaines, the

defendant specifically asked about his right to remain silent at trial, and got no response

from the trial court. In this case, Mr. Hayes did not indicate he did not understand his

right to remain silent. Earlier in the colloquy, Mr. Hayes told the trial court he did not

understand what waiver of his right to trial meant, and the court explained it to him until

he did understand.

       {¶17} Mr. Hayes also cites to the decision of the Tenth District in Truitt, supra.

In that case, the trial court simply advised the defendant he had the “right to remain

silent.” Id. at ¶12. On appeal, defendant contended this was insufficient, since the

advisement did not include the fact the state could not compel him to testify. Id. at ¶15.

The Tenth District disagreed, observing:

       {¶18} “Here, * * * the trial court advised appellant of his ‘right to remain silent.’

(Tr. 4.) The plain meaning of the trial court’s words suggest that appellant had the right

to say absolutely nothing at trial, if he so desired. Intuitively, if a person remains silent




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at trial, they opt to engage the privilege against self-incrimination and do not testify

against themselves. In addition, as previously stated, the trial court inquired whether

appellant had any questions regarding the colloquy, and appellant answered ‘no, sir.’

(Tr. 4.) Therefore, pursuant to Ballard, we find that the trial court explained waiver of

the privilege against self-incrimination in a reasonably intelligible manner and in strict

compliance with Crim.R. 11(C)(2)(c).” Id. at ¶21.

      {¶19} Similarly, in this case, the trial court informed Mr. Hayes he could not be

required to testify against himself. This clearly imports that he had an absolute right to

remain silent. It was a sufficient advisement to comply with Ballard.

      {¶20} The assignment of error lacks merit. The judgment of the Portage County

Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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