[Cite as State v. Ellis, 2015-Ohio-3438.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :

v.                                                :                       No. 14AP-912
                                                                      (C.P.C. No. 14CR-02-885)
Terrille D. Ellis,                                :
                                                                     (REGULAR CALENDAR)
                 Defendant-Appellant.             :


                                            D E C I S I O N

                                       Rendered on August 25, 2015


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Mark J. Miller, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.

        {¶ 1} Defendant-appellant, Terrille D. Ellis, appeals from the judgment of the
Franklin County Court of Common Pleas sentencing him to a term of imprisonment of 23
years to life following his guilty plea to a charge of aggravated murder with a firearm
specification.      Ellis was indicted on charges of aggravated murder plus a firearm
specification, aggravated burglary with a firearm specification, aggravated robbery with a
firearm specification, and two counts of having a weapon while under a disability. After
initially pleading not guilty to all charges, Ellis entered a plea of guilty to one count of
aggravated murder with a firearm specification. At issue in this case is whether the trial
court determined that Ellis understood the rights he was waiving by pleading guilty.
        {¶ 2} Ellis has assigned one error for this court's review:
No. 14AP-912                                                                                    2


               The trial court erred in accepting Appellant's guilty plea in
               violation of Criminal Rule 11 and due process guarantees
               under the state and federal Constitutions.

       {¶ 3} Crim.R. 11(C)(2) requires a trial court to inform a felony defendant of
certain constitutional and nonconstitutional rights before it may accept a plea.             The
purpose of Crim.R. 11(C) is to convey to the defendant certain information so that he can
make a voluntary and intelligent decision whether to plead guilty. State v. Ballard, 66
Ohio St.2d 473, 479-80 (1981).
       {¶ 4} Crim.R. 11 states in pertinent part:
               (2) In felony cases the court may refuse to accept a plea of
               guilty or no contest, and 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.

(Emphasis added.)

       {¶ 5} Under the plain language of the rule, "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.
State v. Veney, 120 Ohio St.3d 176, 183, 2008-Ohio-5200, ¶ 31. Omission of even one of
these rights renders the plea invalid. Id. at ¶ 29-30.
       {¶ 6} However, failure to use the exact language contained in the rule in
informing a defendant of these rights is not grounds for vacating a plea as long as the
No. 14AP-912                                                                                  3


record shows that the trial court explained these rights in a manner reasonably intelligible
to that defendant. Id. at ¶ 27, citing State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph
two of the syllabus. Thus, "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. Here, there is no question that the trial court strictly
complied with Crim.R. 11(C) when it informed Ellis of all the rights he was waiving by
pleading guilty.
       {¶ 7} At the plea hearing, the prosecutor presented the court with a two-page
"Entry of Guilty Plea" form that had been signed by all parties as well as a three-page
"Defendant's Agreement" executed by Ellis, his attorney, and the assistant prosecuting
attorney. The prosecutor explained the plea agreement and the joint recommendation on
the sentence, and the trial court engaged in the following colloquy with Ellis:
              THE COURT: Okay. Mr. Ellis, I have a plea form here that
              says you're changing your plea to guilty to one count of
              aggravated murder with a three-year firearm specification
              and that the other two counts are being dismissed.

              Are you voluntarily pleading guilty to aggravated murder
              with a firearm spec?

              DEFENDANT ELLIS: Yes.

              THE COURT: Are you aware when you enter a guilty plea,
              you allow me to find you guilty of that offense and proceed
              with the sentencing?

              DEFENDANT ELLIS: Yes.

              THE COURT: On aggravated murder, it would be possible to
              get all the way up to life without parole in addition to the
              three-year firearm spec and a fine up to $25,000, are you
              aware of that?

              DEFENDANT ELLIS: Yes.

              THE COURT: When you enter a guilty plea, you give up your
              right to have a jury trial on these charges. You have a right to
              require the State to prove beyond a reasonable doubt that
No. 14AP-912                                                                    4


             you're guilty of these offenses. You have a right to confront
             and cross-examine anyone who testifies against you. You'd
             have a right to issue subpoenas for any defense witnesses you
             might have. You'd have a right, if you went to trial, to remain
             silent throughout the proceedings, and then you could
             appeal if any court rulings or jury verdicts went against you
             in a trial. By entering this guilty plea, that means you're
             giving up those trial rights.

             Are you doing that voluntarily?

             DEFENDANT ELLIS: Yes.

             THE COURT: I also understand from what Mr. Manning just
             said that you entered into a Defendant's Agreement and -- or
             an agreement with the prosecutor about testifying.

             Are you aware that, if you don't cooperate and carry out that
             agreement, that they could withdraw this plea and start all
             over again?

             DEFENDANT ELLIS: Yes.

(Tr. 3-5.)

       {¶ 8} The prosecution then presented the following statement of facts:

             Early morning of November 20th, 2013, co-defendant by the
             name of Melanie Spears recruited Mr. Ellis and Mr. Derrick
             Robinson to commit a robbery of Shaun Fullen, S-H-A-U-N,
             Fullen, F-U-L-L-E-N. Throughout the day they planned this
             robbery. And in the evening, Melanie Spears was over at the
             home of Shaun Fullen here in Franklin County and had Mr.
             Ellis and Mr. Robinson enter the home under the guise that
             they were robbing Ms. Spears.

             During the course of this, they had a confrontation in the
             bathroom with Shaun Fullen. Terrille Ellis did fire one shot
             striking and killing Mr. Fullen. After they shot him, they
             ransacked the house, took cash and a number of firearms
             and fled the location. Mr. Fullen died as a proximate result of
             Mr. Ellis shooting him.

             Again, this occurred here in Franklin County, Judge.
No. 14AP-912                                                                              5


(Tr. 5.) The trial court accepted Ellis' plea and found him guilty of aggravated murder
with a firearm specification.
       {¶ 9} Ellis contends that even though the trial court properly informed him of his
constitutional rights, it failed to determine if he actually understood the constitutional
rights he was waiving by pleading guilty. Ellis argues that the trial court was required to
specifically ask him if he understood the rights he was giving up. Ellis contends that a
strict compliance standard is required in determining whether he understood the rights
he was waiving, and that by not inquiring specifically if Ellis understood the rights he was
waiving, the court failed to meet the strict compliance standard, and the plea should be
vacated.
       {¶ 10} The Supreme Court of Ohio has stated, "[w]e have also clarified that in
reviewing the totality of the circumstances, a court must determine whether the defendant
understood the consequences of waiver." Veney, ¶ 16. Thus, whether the defendant
understands the consequences of his waiver is to be reviewed under a substantial
compliance standard, not strict compliance.       Id.   Under the substantial compliance
standard, a reviewing court examines the totality of the circumstances surrounding the
plea to decide if the trial court determined that the defendant understood the rights he
was waiving by pleading guilty.
       {¶ 11} Veney then stands for the proposition that there is a distinction between the
strict compliance required for the notification of constitutional rights and the substantial
compliance necessary for other information required to be in the plea colloquy. Id. at ¶ 14
("Although we had initially insisted on strict compliance with Crim.R. 11(C), we began to
draw a distinction between the notification of constitutional rights and the other
information required to be in the colloquy in State v. Stewart (1977), 51 Ohio St.2d 86, 5
O.O.3d 52, 364 N.E.2d 1163.").
       {¶ 12} We believe that this reasoning applies to the requirement in Crim.R.
11(C)(2)(c) that the court is to determine that the defendant understands that by the plea
he or she is waiving all of the aforementioned rights. Thus, the court is not required to
use the exact language contained in the rule and ask the defendant whether he
understands the consequences of his waiver, although the better practice is "to use the
language contained in Crim.R. 11(C), stopping after each right and asking the defendant
No. 14AP-912                                                                               6


whether he understands the right and knows that he is waiving it by pleading guilty."
Ballard at 479.
       {¶ 13} In State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, the Supreme Court
of Ohio held that a court reviewing the validity of a plea could consider the language in the
change-of-plea agreement, stating that "when a trial court addresses all the constitutional
rights in the oral colloquy, a reviewing court should be permitted to consider additional
record evidence to reconcile any alleged ambiguity in it." Id. at ¶ 24. Additionally, the
Supreme Court held that "Veney did not reject the Ballard approach of considering the
totality of the circumstances, but instead is limited to the situation where a trial court
omits any discussion of a constitutional right in the oral colloquy." Id. at ¶ 25.
       {¶ 14} Here, an examination of the totality of the circumstances surrounding the
plea, including additional record evidence, demonstrates that Ellis knowingly and
voluntarily understood that by pleading guilty he was waiving his constitutional rights.
The key portion of the colloquy shows the trial court itemizing all the rights he gives up by
entering a guilty plea. Then the trial court reiterates:
              [THE COURT:] By entering this guilty plea, that means
              you're giving up those trial rights.

              Are you doing that voluntarily?

              DEFENDANT ELLIS: Yes.

(Tr. 4.)

       {¶ 15} In addition, on October 1, 2014, Ellis signed a two-page "Entry of Guilty
Plea" which stated in pertinent part:
              I further understand that by pleading "Guilty", I waive a
              number of important and substantial constitutional,
              statutory and procedural rights, which include, but are not
              limited to, the right to have a trial by jury, the right to
              confront witnesses against me, to have compulsory subpoena
              process for obtaining witnesses in my favor, to require the
              State to prove my guilt beyond a reasonable doubt on each
              crime herein charged at a trial at which I cannot be
              compelled to testify against myself, and to appeal the verdict
              and rulings of the trial Court made before or during trial,
              should those rulings or the verdict be against my interests.
No. 14AP-912                                                                                  7


       {¶ 16} The plea form is also signed by Ellis' counsel affirming that counsel had
explained the facts and law of the case to him and that counsel believed that the plea was
being entered into knowingly, intelligently, and voluntarily. Id.
       {¶ 17} Thus, despite the trial court's failure to explicitly ask Ellis if he understood
that, by pleading guilty, he was waiving each of the enumerated constitutional rights, the
record demonstrates that Ellis was fully and meaningfully informed of the rights he was
waving and that his plea was entered into voluntarily. Based on the totality of the
circumstances and the record before us, we conclude that Ellis knowingly and voluntarily
waived his constitutional rights. For this reason, we overrule the sole assignment of error.
       {¶ 18} Having overruled the single assignment of error, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                         Judgment affirmed.

                                  BRUNNER, J., concurs.
                                  DORRIAN, J., dissents.

DORRIAN, J., dissenting

       {¶ 19} I respectfully dissent from the judgment of the majority.
       {¶ 20} "When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution." (Emphasis added.) State v. Engle, 74 Ohio St.3d 525, 527 (1996).
The majority, at ¶ 17, concludes that Ellis "knowingly and voluntarily" waived his
constitutional rights. However, whether a defendant understood the rights he was waiving
and, therefore, "intelligently" waived those rights is a different question. I do not believe
that the trial court in this case determined whether Ellis intelligently waived his rights.
       {¶ 21} "[T]he basis of Crim.R. 11 is to assure 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." (Emphasis added.) State v. Ballard, 66 Ohio St.2d 473,
480 (1981). The Supreme Court of Ohio has stated that "the best method of informing a
defendant of his constitutional rights is to use the language contained in Crim.R. 11(C),
stopping after each right and asking the defendant whether he understands the right and
No. 14AP-912                                                                                 8


knows that he is waiving it by pleading it guilty." (Emphasis added.) Id. at 479. The
Supreme Court has further stated, however, that "failure to [literally comply] will not
necessarily invalidate a plea. The underlying purpose, from the defendant's perspective, of
Crim.R. 11(C) is to convey to the defendant certain information so that he can make a
voluntary and intelligent decision whether to plead guilty." Id. at 479-80.
       {¶ 22} I disagree with the majority's application of the substantial compliance
standard to conclude that the trial court complied with its duty to determine that Ellis
understood the constitutional rights he was waiving. Majority decision at ¶ 10. The
majority bases this application of substantial compliance on its reading of ¶ 16 of State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200. That portion of the Veney decision refers to
the totality of the circumstances in the context of the substantial compliance standard as
it applies to non-constitutional rights outlined in Crim.R. 11(C)(2)(a) and (b). See id. at
¶ 14-17. Furthermore, State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, the case upon
which Veney relied in applying the totality of the circumstances standard to the duty to
"determine whether the defendant understood the consequences of waiver," applied the
standard when considering whether the defendant understood the right to be informed
that a guilty plea is a complete admission of guilt. Id. at ¶ 16. The Supreme Court in
Griggs noted specifically that such right is "nonconstitutional and therefore is subject to
review under a standard of substantial compliance." Id. at ¶ 12. The rights in question in
the case before us are constitutional as outlined in Crim.R. 11(C)(2)(c).
       {¶ 23} I am concerned that the effect of the majority decision is to require strict
compliance with a trial court's first duty under Crim.R. 11(C)(2)(c) (i.e., informing the
defendant of his constitutional rights), but mere substantial compliance for the second
duty under that rule (i.e., determining that the defendant understands he is waiving those
constitutional rights by pleading guilty). I believe this is an incorrect interpretation of the
rule and existing precedent. See Veney at syllabus ("A trial court must strictly comply with
Crim.R. 11(C)(2)(c).").
       {¶ 24} Nevertheless, even in applying a totality of the circumstances standard in a
strict compliance context on the facts of this case, I would not conclude that the trial court
strictly complied with its duty to determine whether Ellis understood the rights he was
waiving. None of the trial court's questions addressed whether Ellis understood the rights
No. 14AP-912                                                                              9


he was waiving by pleading guilty. After informing Ellis of his constitutional rights and
explaining that he was waiving those rights by pleading guilty, the trial court asked a
single question, inquiring whether Ellis waived those rights voluntarily, but not whether
he understood them. Moreover, even with respect to the nonconstitutional rights under
Crim.R. 11(C)(2)(a) and (b), the trial court merely asked whether Ellis was aware he was
waiving them, not whether he understood them. These questions go to the knowing and
voluntary nature of the plea, but not to whether it was made intelligently. Although the
majority refers to the guilty plea form signed by Ellis and his counsel, the trial court did
not ask Ellis during the colloquy whether he understood the guilty plea form or whether
he had discussed it with counsel. Compare State v. Barker, 129 Ohio St.3d 472, 2011-
Ohio-4130, ¶ 21; State v. Horton, 10th Dist. No. 09AP-245, 2009-Ohio-5117, ¶ 10 ("When
asked if he understood everything in the plea documents that he signed, appellant
indicated that he did.").
       {¶ 25} For the reasons stated above, based on the facts presented in this case, I
would conclude that the trial court failed to strictly comply with its duty under Crim.R.
11(C)(2)(c) to determine that Ellis understood the constitutional rights he was waiving by
pleading guilty. Therefore, I would find that Ellis's guilty plea was invalid. See State v.
Payne, 10th Dist. No. 05AP-1305, 2006-Ohio-4624, ¶ 8.
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