[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Miller, Slip Opinion No. 2020-Ohio-1420.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2020-OHIO-1420
             THE STATE OF OHIO, APPELLANT, v. MILLER, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Miller, Slip Opinion No. 2020-Ohio-1420.]
Trial courts must strictly comply with Crim.R. 11(C)(2)(c)—A trial court strictly
        complies with Crim.R. 11(C)(2)(c) when it advises a defendant in a manner
        reasonably intelligible to the defendant that a guilty or no-contest plea
        waives the rights enumerated in the rule; the trial court is not required to
        use the particular words stated in the rule.
   (No. 2018-0948—Submitted December 11, 2019—Decided April 14, 2020.)
      APPEAL from the Court of Appeals for Cuyahoga County, No. 105363,
                                       2018-Ohio-843.
                                   __________________
        FISCHER, J.
        {¶ 1} In this appeal, we are asked whether trial courts in felony cases must
strictly comply with the plea colloquy required by Crim.R. 11(C)(2)(c) and, if so,
whether strict compliance requires that the colloquy include particular words. We
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reaffirm that a trial court must strictly comply with Crim.R. 11(C)(2)(c); however,
this does not mean that the trial court must use the particular words stated in the
rule. Instead, to strictly comply with the rule, the trial court must orally advise the
defendant, in a manner reasonably intelligible to the defendant, that the plea waives
the rights enumerated in the rule.
                     I. Factual and Procedural Background
       {¶ 2} Pursuant to a plea agreement, appellee, Shawn Miller, pleaded guilty
to a number of crimes in the Cuyahoga County Court of Common Pleas. During
the plea hearing, the trial court enumerated the constitutional rights Miller would
be entitled to if he elected to go to trial and Miller affirmatively stated that he
understood those constitutional rights. The trial court did not, however, specifically
ask Miller whether he understood that he was waiving those rights by pleading
guilty. The trial court accepted Miller’s guilty pleas and sentenced him to an
aggregate eight-year prison term and three years of postrelease control.
       {¶ 3} On appeal to the Eighth District Court of Appeals, Miller argued that
the pleas should be vacated because the trial court had failed to ensure that he
understood that by pleading guilty he was waiving the constitutional rights
enumerated in Crim.R. 11(C)(2)(c).
       {¶ 4} In a two-to-one decision, the court of appeals vacated Miller’s guilty
pleas, reversed his convictions, and remanded the case to the trial court for further
proceedings. Applying this court’s decision in State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, the Eighth District concluded that the trial court
was required to strictly comply with Crim.R. 11(C)(2) and that in order to strictly
comply, the court had to specifically advise Miller that he would waive his
constitutional trial rights by pleading guilty. The court of appeals acknowledged
that common sense dictates that by pleading guilty, a defendant will not be able to
exercise those constitutional rights; however, because the court of appeals
concluded that the trial court had failed to abide by Veney’s strict-compliance




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standard when it failed to advise Miller that a guilty plea waives those constitutional
rights, the court vacated Miller’s pleas, reversed his convictions, and remanded the
cause to the trial court for further proceedings.
        {¶ 5} The dissenting judge stated that the totality of the circumstances
indicated that Miller knew what rights he would lose by pleading guilty and what
rights he would have if he chose to go to trial. Because she concluded that the trial
court had “meaningfully conveyed the substance of Miller’s rights,” she concluded
that the trial court had complied with Crim.R. 11(C)(2). 2018-Ohio-843, ¶ 27-28
(Stewart, J., dissenting).
        {¶ 6} This court accepted jurisdiction over the state’s proposition of law:
“A reviewing court applies a substantial compliance standard in determining
whether criminal defendants understand they are waiving their constitutional trial
rights when entering a plea in a felony case.” See 153 Ohio St.3d 1502, 2018-Ohio-
4288, 109 N.E.3d 1259.
                                     II. Analysis
        {¶ 7} The state argues that the Eighth District’s decision elevates form over
substance. It asserts that so long as a defendant understands that pleading guilty to
an offense waives his or her constitutional trial rights, the trial court has complied
with Crim.R. 11(C)(2). It accordingly urges the court to adopt a substantial-
compliance standard with respect to Crim.R. 11(C)(2)(c)’s requirement that a trial
court determine whether a defendant understands that by pleading guilty he will
waive his constitutional trial rights. Adopting the position of the dissenting opinion
below, the state urges this court to conclude that by advising Miller of the
constitutional rights he would have if he chose to go to trial, the trial court notified
Miller that he would be waiving those rights if he opted not to go to trial and thus
satisfied Crim.R. 11(C)(2).
        {¶ 8} Miller responds that the state failed to preserve the issue whether
substantial compliance or strict compliance with Crim.R. 11(C)(2)(c) is required




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when determining whether defendants understand that they are waiving their
constitutional trial rights by pleading guilty. He further asserts that the Eighth
District correctly held that strict compliance is required, and he argues that even if
a substantial-compliance standard applies, the trial court failed to satisfy that
standard in this case.
                  A. The Issue in this Case Is Properly Before Us
       {¶ 9} As an initial procedural matter, we conclude that the state’s failure to
argue below for a substantial-compliance standard does not constitute a basis for
affirming the judgment of the court of appeals. The issue whether substantial
compliance or strict compliance applies is not essential to this case. Rather, the
critical issue is what Crim.R. 11(C)(2)(c) requires of the trial court and what
showing a defendant must make to demonstrate that the plea is invalid. The state
contends that the trial court’s colloquy fully complied with the requirements of the
rule by conveying the substance of Miller’s constitutional rights to him in a
reasonably intelligible manner. We agree.
       {¶ 10} Moreover, in its opinion, the Eighth District acknowledged that its
strict-compliance holding conflicted with the Tenth District’s holding in State v.
Ellis, 10th Dist. Franklin No. 14AP-912, 2015-Ohio-3438, ¶ 10-12, that Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, allows substantial compliance
with the portion of Crim.R. 11(C)(2)(c) requiring the trial court to determine
whether the defendant understands that by pleading guilty he or she is waiving his
or her constitutional trial rights. 2018-Ohio-843 at ¶ 12-14. Both parties have had
a full opportunity to brief the issue, and given the differing views of the Eighth and
Tenth Districts on this issue, we determine that it would assist the lower courts if
we address this issue now.
                               B. Legal Background
       {¶ 11} Crim.R. 11(C)(2) is the basis for our analysis in this case. That rule
provides:




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               In felony cases the court * * * shall not accept a plea of guilty
       or no contest without first addressing the defendant personally and
       doing all of the following:
               ***
               (c) Informing 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.


       {¶ 12} Our most relevant precedent regarding the issue of which standard
applies is Veney. Of particular relevance is the language of Veney’s syllabus:


               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. (Crim.R. 11(C)(2)(c), applied.)


Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at syllabus.
       {¶ 13} In addressing the question of which standard applied, the Veney
court confronted the question whether the trial court’s failure to advise a criminal




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defendant of one of his constitutional trial rights was subject to harmless-error
review under Crim.R. 52. The court explained that “ ‘for a guilty plea to be
voluntarily and intelligently entered, the defendant must be informed that he is
waiving’ ” the constitutional rights listed in Crim.R. 11(C)(2)(c). Id. at ¶ 25-26,
quoting State v. Ballard, 66 Ohio St.2d 473, 477-478, 423 N.E.2d 115 (1981). But
the court held that only substantial compliance with the nonconstitutional
requirements of Crim.R. 11(C)(2), namely the requirements in subdivisions (a) and
(b), is required and that a defendant’s claim that his plea is invalid due to a failure
to adhere to those provisions is subject to harmless-error review, which requires a
showing of prejudice. Id. at ¶ 14-15. But a trial court’s failure to notify a defendant
of his constitutional rights listed in Crim.R. 11(C)(2)(c) amounts to plain error. Id.
at ¶ 24, citing Ballard at 476-477.
        {¶ 14} Veney therefore held that “the trial court must orally inform the
defendant of the rights set forth in Crim.R. 11(C)(2)(c) during the plea colloquy for
the plea to be valid.” Id. at ¶ 29. The court explained that “[a]lthough the trial
court may vary slightly from the literal wording of the rule in the colloquy, the court
cannot simply rely on other sources to convey these rights to the defendant.” Id.
Because the record in that case showed that the trial court had “plainly failed to
orally inform Veney of his constitutional right to require the state to prove his guilt
beyond a reasonable doubt,” the plea was invalid. Id. at ¶ 30. Notably, the case at
bar does not involve the plain failure of the trial court to inform Miller of his
constitutional rights.
        {¶ 15} The three justices concurring in part and dissenting in part in Veney
agreed that “trial courts when conducting plea colloquies must strictly comply with
all parts of Crim.R. 11(C)(2)(c).” Id. at ¶ 33 (Lanzinger, J., concurring in part and
dissenting in part). Thus, the justices unanimously concluded that trial courts must
strictly comply with all parts of Crim.R. 11(C)(2)(c), necessarily including the




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                                 January Term, 2020




portion requiring that the court determine that the defendant understands that by
pleading guilty he is waiving his constitutional trial rights.
                    C. What Does Strict Compliance Require?
       {¶ 16} We reaffirm the unanimous conclusion of the justices in Veney that
trial courts must strictly comply with Crim.R. 11(C)(2)(c) and the majority’s
holding that a failure to do so cannot be deemed harmless. The critical question
before us in this case, then, is: What must a trial court do to strictly comply with
Crim.R. 11(C)(2)(c)?
       {¶ 17} Miller mistakenly equates strict compliance with a requirement that
the judge recite the provisions of Crim.R. 11(C)(2)(c) almost verbatim. Thus, he
would require the judge’s explanation to the defendant to include either the word
waiver or a synonym of waiver, such as give up, forgo, bypass, surrender, abandon,
or relinquish.   Miller’s suggested requirement misinterprets Veney and other
decisions of this court that make clear that strict compliance simply means that the
court has to notify the defendant of each one of the constitutional rights that the
defendant is giving up; and if the court fails to do so, the guilty plea is invalid—no
showing of prejudice is required. See State v. Griggs, 103 Ohio St.3d 85, 2004-
Ohio-4415, 814 N.E.2d 51, ¶ 12 (“Though failure to adequately inform a defendant
of his constitutional rights would invalidate a guilty plea under a presumption that
it was entered involuntarily and unknowingly, failure to comply [as to]
nonconstitutional rights will not invalidate a plea unless the defendant thereby
suffered prejudice”), citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474
(1990); Ballard, 66 Ohio St.2d at 475-478, 423 N.E.2d 115. We have never
mandated that a trial court use particular words in order to comply with Crim.R.
11(C)(2)(c). See Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at
¶ 29; Ballard at paragraph two of the syllabus. Indeed, as we explained in Ballard,




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                [f]ailure to use the exact language contained in Crim.R.
        11(C), in informing a criminal defendant of his constitutional right
        to a trial and the constitutional rights related to such trial, including
        the right to trial by jury, 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 that defendant.


Id. at paragraph two of the syllabus. Rather, the trial court needs to inform a
defendant of those constitutional rights that the defendant will not be able to
exercise if the defendant pleads guilty, and the information provided by the court
must be in words that the defendant can understand. See Crim.R. 11(C)(2)(c);
Ballard at 480 (the goal of Crim.R. 11(C) is to ensure that the defendant is informed
“and thus enable the judge to determine that the defendant understands that his plea
waives his constitutional right to a trial”).
        {¶ 18} As we explained in Veney, Crim.R. 11(C)(2)(c) requires the court to
convey to the defendant the information set forth in the rule so that the defendant
can make a voluntary and intelligent decision whether to plead guilty. Veney at
¶ 18, citing Ballard at 479-480. With this focus on setting forth information in a
manner that the defendant can understand, we have cautioned against requiring
courts to mirror the language set forth in the rule:


        [T]he focus, upon review, is whether the record shows that the trial
        court explained or referred to the right in a manner reasonably
        intelligible to that defendant. To hold otherwise would be to elevate
        formalistic litany of constitutional rights over the substance of the
        dialogue between the trial court and the accused. This is something
        we are unwilling to do.




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                                  January Term, 2020




Ballard at 480.
         {¶ 19} Thus, the goal of Crim.R. 11(C)(2)(c) is to make sure that a
defendant understands that after entering into a plea, certain rights cannot be
exercised. If this court were to require verbatim or nearly verbatim plea colloquies,
as argued for by Miller, that requirement would in some cases undermine the goal
of having the defendant actually understand the ramifications of the plea. We
accordingly hold that a trial court strictly complies with Crim.R. 11(C)(2)(c) when
in its plea colloquy with the defendant, it advises the defendant in a manner
reasonably intelligible to the defendant that the plea waives the rights enumerated
in the rule.
           D. The Trial Court Strictly Complied with Crim.R. 11(C)(2)(c)
         {¶ 20} In this case, as the plea colloquy set forth below shows, the trial
court, in language understandable to the average person, not in legalese, set forth
the constitutional trial rights listed in Crim.R. 11(C)(2)(c), such that Miller could
make a voluntary and intelligent decision whether to plead guilty knowing that
those constitutional rights would not be exercisable if he did. And after the judge
explained each constitutional right to Miller, Miller stated that he understood the
right.


                    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?




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          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.




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                    THE COURT: Any questions from any of you?
                    ***
                    DEFENDANT MILLER: No.


Although Miller argues that some synonym of the word waiver must be used in the
plea colloquy in order to ensure that the defendant understands the ramifications of
pleading guilty, it is clear from the transcript excerpt set forth above that that is not
true. The court strictly complied with Crim.R. 11(C)(2)(c) by setting forth the
constitutional rights that Miller would have if he elected to go to trial and
communicating to Miller that the effect of his plea was that he would not be going
to trial.
            {¶ 21} We see no error in this exchange. Common sense tells us that the
trial judge’s use of easily understood words conveyed to Miller that he would be
waiving certain constitutional rights if he were to plead guilty and that the exchange
resulted in Miller’s plea being voluntarily, knowingly, and intelligently made. To
reach any other result would raise form over substance. We refuse to require trial
courts to use particular words during the plea colloquy.
                                    III. Conclusion
            {¶ 22} We reaffirm our holding in Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621, that trial courts must strictly comply with Crim.R.
11(C)(2)(c).      And we hold that a trial court strictly complies with Crim.R.
11(C)(2)(c) when it orally advises the defendant in a manner reasonably intelligible
to the defendant that the plea waives the rights enumerated in the rule.
            {¶ 23} Because we conclude that the trial court strictly complied with
Crim.R. 11(C)(2)(c) in this case, we reverse the judgment of the court of appeals
and reinstate Miller’s guilty pleas and convictions.
                                                                    Judgment reversed
                                                            and convictions reinstated.




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       O’CONNOR, C.J., and KENNEDY, FRENCH, DEWINE, DONNELLY, and
SADLER, JJ., concur.
       LISA L. SADLER, J., of the Tenth District Court of Appeals, sitting for
STEWART, J.
                              _________________
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Gregory Ochocki, Assistant Prosecuting Attorney, for appellant.
       Patrick J. Milligan Co., L.P.A., and Patrick J. Milligan; and James E. Kocka,
for appellee.
                              _________________




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