[Cite as State v. Howard, 2016-Ohio-426.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2015-CA-3
                                                  :
 v.                                               :   Trial Court Case No. 2014-CR-418
                                                  :
 DERON HOWARD                                     :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                           Rendered on the 5th day of February, 2016.

                                             ...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

RICHARD KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475
     Attorney for Defendant-Appellant

                                            .............

WELBAUM, J.



        {¶ 1} Defendant-appellant, Deron Howard, appeals from his conviction in the Clark

County Court of Common Pleas after he pled guilty to one count of breaking and entering.
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Howard contends that his guilty plea is invalid because the trial court failed to properly

advise him of his right to a jury trial as required by Crim.R. 11(C)(2)(c). He also claims

that his plea was not knowingly, intelligently, and voluntarily entered because the trial

court failed to inquire about his ability to read and write. For the reasons outlined below,

we conclude that the trial court sufficiently explained Howard’s rights during his plea

hearing and that his plea was knowing, intelligent, and voluntary.          Therefore, the

judgment of the trial court will be affirmed.



                            Facts and Course of Proceedings

       {¶ 2} On June 23, 2014, the Clark County Grand Jury returned an indictment

charging Howard with one count of breaking and entering in violation of R.C. 2911.13(A),

a felony of the fifth degree. Although Howard initially pled not guilty to the charge, on

December 9, 2014, he appeared in court and pled guilty pursuant to a plea agreement.

In exchange for Howard’s guilty plea, the State agreed to recommend a nine-month prison

term. The State also agreed not to seek more than a 27-month prison term for two

separate charges of burglary pending against Howard in Case No. 2014-CR-668.

       {¶ 3} At the plea hearing, the trial court determined that Howard had signed the

written plea agreement, reviewed the plea agreement with his attorney, and understood

everything in the agreement, which was filed with the court on December 10, 2014. The

trial court also engaged in a plea colloquy with Howard, part of which included the

following discussion:

       THE COURT:            Do you understand that you do have the right to a trial

                             in this case?
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       THE DEFENDANT: Yes, Your Honor.

       THE COURT:           At that trial you would have several rights. You would

                            have the right to require the State to prove beyond a

                            reasonable doubt each and every element of the

                            offense to which you’re pleading guilty, and you could

                            only be convicted upon the unanimous verdict of a jury.

                            You would have the right to confront witness who testify

                            against you, and your attorney could cross-examine

                            those witnesses. You would have the right to use the

                            Court’s subpoena power to compel the attendance of

                            witnesses on your behalf, and you would also have the

                            right to testify, but you could not be forced to do so.

                            Do you understand all of those rights?

       THE DEFENDANT: Yes, Your Honor.

Trans. of Plea Hearing and Disposition (Dec. 9, 2014), p. 11.

       {¶ 4} Following the plea colloquy, the trial court found that Howard had knowingly,

intelligently, and voluntarily waived his constitutional rights and entered a plea of guilty.

Based on Howard’s plea, the trial court found him guilty as charged and sentenced him

to the agreed upon prison term of nine months. Howard now appeals from his conviction,

raising one assignment of error for review.



                                  Assignment of Error

       {¶ 5} Howard’s sole assignment of error is as follows:
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       THE TRIAL COURT COMMITTED CONSTITUTIONAL ERROR TO THE

       PREJUDICE OF MR. HOWARD WHEN IT FAILED TO PROPERLY

       ADVISE HIM OF HIS CONSTITUTIONAL RIGHTS AND FOUND THAT HE

       KNOWINGLY[,] VOLUNTARILY AND INTELLIGENTLY WAIVED HIS

       CONSTITUTIONAL RIGHTS AS SET FORTH IN CRIMINAL RULE 11.

       {¶ 6} Under his single assignment of error, Howard contends that his guilty plea is

invalid because the trial court did not strictly comply with the requirements of

Crim.R.11(C)(2)(c). In support of this claim, Howard argues that the trial court did not

properly advise him of his right to a jury trial, because during the plea colloquy, the court

informed him that he had the right to a “trial” as opposed to a “jury trial.” Howard also

claims that his plea was not knowingly, intelligently, and voluntarily entered because the

trial court did not inquire about his ability to read and write at the plea hearing. We find

no merit to either of Howard’s claims.



                                    1. Right to Jury Trial

       {¶ 7} As noted above, Howard claims that the trial court failed to properly inform

him of his right to a jury trial as required by Crim.R. 11(C)(2)(c). “Crim.R. 11(C)(2)(c)

requires that the defendant be advised of the right to a jury trial, the right to confront one’s

accusers, the privilege against compulsory self-incrimination, the right to compulsory

process to obtain witnesses, and the right to require the state to prove guilt beyond a

reasonable doubt.” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

62, ¶ 19. A trial court must strictly comply with Crim.R. 11 as it pertains to the waiver of

these constitutional rights. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953
                                                                                            -5-

N.E.2d 826, ¶ 15, citing Veney at ¶ 18. “A guilty plea is constitutionally infirm when the

defendant is not informed in a reasonable manner that his plea waives those rights.”

State v. Eggers, 2d Dist. Clark No. 2011-CA-48, 2013-Ohio-3174, ¶ 11, citing State v.

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

        {¶ 8} “Failure 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.”   (Citation omitted.)    Ballard at paragraph two of the

syllabus. Therefore, the Supreme Court of Ohio has “recognized that a trial court can

still convey the requisite information on constitutional rights to the defendant even when

the court does not provide a word-for-word recitation of the criminal rule, so long as the

trial court actually explains the rights to the defendant.” Veney at ¶ 27. Moreover, “an

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, in determining whether the

defendant was fully informed of the right in question.” Barker at ¶ 25.

        {¶ 9} In Ballard, the Supreme Court upheld an appellant’s guilty plea even though

the court failed to specifically mention the right to a jury trial by name, but rather informed

the appellant that “neither judge nor jury could draw any inference if the appellant refused

to testify” and then stated that appellant “was entitled to a fair and impartial trial under

law.”   Ballard at 481.    The Supreme Court concluded that, taken together, these

advisements were sufficient to inform the appellant of his right to a jury trial. Id.

        {¶ 10} Similarly, in State v. Courtney, 2d Dist. Clark No. 2013-CA-73, 2014-Ohio-
                                                                                            -6-


1659, this court held that a trial court sufficiently explained the defendant’s right to a jury

trial during its plea colloquy when it stated that the defendant had “the right to a trial” and

explained that: “At that trial you would have the right to require the State to prove beyond

a reasonable doubt each and every element of the offense to which you are pleading

guilty, and you could only be convicted upon the unanimous verdict of a jury.” (Emphasis

sic.) Id. at ¶ 9. In so holding, we explained that “an average person of Courtney’s age

and intelligence would know that a trial requiring a ‘unanimous verdict of a jury’ to convict

necessitates a jury trial[.]” Id. Accord State v. Smiddy, 2d Dist. Clark No. 2014-CA-148,

2015-Ohio-4200.

       {¶ 11} In this case, Howard is challenging his plea on the same grounds as the

defendant in Courtney under nearly identical circumstances. Like Courtney, Howard

claims the trial court did not properly advise him of his right to a jury trial because the

court only stated that he had the right to a “trial” as opposed to a “jury trial.” However,

as in Courtney, the trial court also stated that Howard “could only be convicted upon the

unanimous verdict of a jury.”      We find that these statements reasonably explained

Howard’s right to a jury trial in a manner that Howard could understand. Howard was 30

years old at the time of the plea and there is no indication in the record that he lacked the

intelligence to understand the court’s explanation. Therefore, in following our holding in

Courtney, we find that the trial court’s plea colloquy conveyed the requisite information

regarding Howard’s right to a jury trial.

       {¶ 12} Regardless, even if the court’s explanation was ambiguous, which it is not,

the written plea form signed by Howard specifically referenced his right to a jury trial.

Specifically, the written plea form states: “I understand by pleading guilty I give up my
                                                                                            -7-


right to a jury trial * * *.” Plea Agreement (Dec. 10, 2014), Clark County Court of Common

Pleas Case No. 2014-CR-418, Docket No. 17, p. 3. Howard advised the trial court that

he reviewed the plea form with his attorney and that he understood everything contained

therein. Accordingly, the record reveals that Howard was fully informed of his right to a

jury trial.

        {¶ 13} For the foregoing reasons, we conclude that the trial court strictly complied

with Crim.R. 11(C)(2)(c) when it advised Howard of his right to a jury trial. Therefore,

Howard’s claim to the contrary is overruled.



                                  2. Ability to Read and Write

        {¶ 14} Howard also contends that he did not knowingly, intelligently, and voluntarily

plead guilty because the trial court did not inquire about his ability to read and write at the

plea hearing. “By following [Crim.R.11(C)], a court ensures that the plea is knowing,

intelligent, and voluntary.” State v. Cole, 2d Dist. Montgomery No. 26122, 2015-Ohio-

3793, ¶ 12, citing State v. Redavide, 2d Dist. Montgomery No. 26070, 2015-Ohio-3056,

¶ 12. In addition to the constitutional rights previously discussed, Crim.R. 11(C) provides

that, before accepting a guilty or no-contest plea, a court must determine that the

defendant understands certain nonconstitutional rights, including “the nature of the

charges and of the maximum penalty involved, and if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions,” Crim.R.

11(C)(2)(a), and “the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence,” Crim.R. 11(C)(2)(b).

        {¶ 15} “Crim.R. 11 does not require the courts to determine the defendant’s
                                                                                         -8-

individual background, reading skills, or writing skills.”    State v. Pardon, 10th Dist.

Franklin No. 96APA08-1118, 1997 WL 170295, *1 (Apr. 10, 1997), citing State v. McKee,

50 Ohio App.2d 313, 362 N.E.2d 1252 (9th Dist.1976). In fact, “a person need not be

able to read to enter a plea.” State v. Beach, 7th Dist. Mahoning No. 03 MA 2, 2003-

Ohio-6546, ¶ 13, citing Pardon and McKee. Nevertheless, “[a] trial court has the duty to

ensure a defendant understands the plea whether or not his mental acumen is

questionable.” Id.

       {¶ 16} In this case, the trial court satisfied the requirements of Crim.R. 11(C)

through the plea colloquy and the written plea form. Howard indicated on the record that

he understood everything the trial court said during the plea colloquy. He also signed

and reviewed the written plea form with his attorney and advised the trial court that he

understood the contents of the plea form, which included the necessary Crim.R. 11(C)

information. Therefore, the fact that the trial court did not inquire about Howard’s reading

and writing ability is of no consequence since that is not a requirement under

Crim.R.11(C). Accordingly, the record supports the trial court’s finding that Howard’s

plea was knowing, intelligent, and voluntary; therefore, Howard’s claim to the contrary is

overruled.



                                       Conclusion

       {¶ 17} Howard’s sole assignment of error is overruled and the judgment of the trial

court is affirmed.

                                     .............
                                 -9-


FAIN, J. and HALL, J., concur.



Copies mailed to:

Ryan A. Saunders
Richard Kaplan
Hon. Douglas M. Rastatter
