[Cite as State v. Hayward, 2017-Ohio-8611.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                      WOOD COUNTY


State of Ohio                                     Court of Appeals No. WD-17-010

        Appellee                                  Trial Court No. 2015CR262

v.

Walter L. Hayward, Jr.                            DECISION AND JUDGMENT

        Appellant                                 Decided: November 17, 2017

                                              *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Stephen D. Long, for appellant.

                                              *****

        MAYLE, J.

        {¶ 1} Defendant-appellant, Walter L. Hayward, Jr., appeals the April 25, 2016

judgment of the Wood County Court of Common Pleas. For the reasons that follow, we

affirm the trial court judgment.
[Cite as State v. Hayward, 2017-Ohio-8611.]


                                              I. Background

        {¶ 2} On January 14, 2016, Walter L. Hayward, Jr. entered a plea of guilty to one

count of engaging in a pattern of corrupt activity, a violation of R.C. 2923.31(A)(1)(B)(1),

a second-degree felony; two counts of grand theft, violations of R.C. 2913.02(A)(1)(B)(2),

fourth-degree felonies; and 15 counts of theft, violations of R.C. 2913.02(A)(1)(B)(2),

fifth-degree felonies. The trial court imposed an aggregate prison term of eight years, and

ordered restitution in the amount of $87,359.99 to the various victims, all automotive

dealerships. Hayward appealed the trial court judgment and assigns the following error

for our review:

                THE TRIAL COURT ABUSED ITS DISCRETION BY

        ACCEPTING THE APPELLANT’S GUILTY PLEA WITHOUT

        ENSURING THAT THE PLEA WAS KNOWINGLY, INTELLIGENTLY

        AND VOLUNTARILY ENTERED AND DID NOT STRICTLY

        COMPLY WITH CRIM.R. 11(C)(2)(c).

                                        II. Law and Analysis

        {¶ 3} In his sole assignment of error, Hayward claims that his guilty plea was not

entered knowingly, intelligently, and voluntarily because the trial court failed to strictly

comply with Crim.R. 11(C)(2)(c) before accepting his plea. Specifically, Hayward

contends that the trial court failed to inform him that by entering his plea, he was waiving

his right to a jury trial.
        {¶ 4} Crim.R. 11(C)(2)(c) provides as follows:

               In felony cases the court may refuse to accept a plea of guilty or a

        plea of 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: * * * 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.

        {¶ 5} In other words, before accepting a plea of guilty, Crim.R. 11(C)(2)(c)

requires the trial court to advise the defendant of the constitutional rights he is waiving by

entering his plea, which includes 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 621,

¶ 19.

        {¶ 6} The Ohio Supreme Court has made clear that strict compliance with Crim.R.

11(C)(2)(c) is required. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953

N.E.2d 826, ¶ 15, citing Veney at ¶ 18. To that end, the preferred method of informing a




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criminal defendant of his constitutional rights is to use the language contained in Crim.R.

11(C)(2)(c). Veney at ¶ 18. The failure to recite the language of the rule word-for-word

will not invalidate a plea agreement, however, so long as “the record demonstrates that

the trial court explained the constitutional right[s] in a manner reasonably intelligible to

that defendant.” (Internal quotations and emphasis omitted.) Veney at ¶ 27, quoting

State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981); Barker at ¶ 15.

        {¶ 7} Here, Hayward executed a written plea agreement enumerating the rights he

was waiving by entering his plea. In it, he acknowledged: “I understand that I have a

right to have my case tried to a jury of my peers, or to this Court, sitting without a jury.”

The trial court also engaged in the following colloquy with Hayward before accepting his

plea:

               The Court: Alright. Now, on the bottom of Page 6 and the top of

        Page 7, there is a paragraph dealing with your constitutional rights and I

        want to make sure that you understand the rights that you are giving up by

        entering this plea today, alright?

               The Defendant: Yes, sir.

               The Court: Do you understand that you are presumed innocent of all

        these charges. That presumption stays with you until the prosecutor proves

        your guilt beyond a reasonable doubt, understood?

               The Defendant: Yes, Your Honor.




4.
            The Court: Do you understand that you have the right to a speedy

     and public trial?

            The Defendant: Yes, Your Honor.

            The Court: You have a right to an attorney at every stage of the

     proceedings?

            The Defendant: Yes, Your Honor.

            The Court: Now, had there been a trial, Mr. Hayward, you would be

     able to be present right where you are at that table. You would be able to

     see and hear any witnesses that testified against you in the trial. You would

     be able to talk to Ms. Driftmyer about what those witnesses said and she

     would be able to cross-examine them, you understand that?

            The Defendant: Yes, Your Honor.

            The Court: If you had witnesses you wanted to come to the trial and

     testify on your behalf, the Court stands ready to assist you with that by

     issuing subpoenas to your witnesses.

            The Defendant: Yes, Your Honor.

            The Court: Those subpoenas would tell them when the trial was and

     that they had to appear and testify, understood?

            The Defendant: Yes, Your Honor.




5.
              The Court: You would also have the right to testify yourself if you

       chose to do so. If you wanted to testify, nobody could stop you from doing

       that, understood?

              The Defendant: Yes, Your Honor.

              The Court: On the other hand, you also have the right not to testify.

       If you chose not to testify, then I would instruct the jury that they could not

       weigh that in deciding your guilt or innocence of these charges,

       understood?

              The Defendant: Yes, Your Honor.

              ***

              (Emphasis added.)

       {¶ 8} Hayward contends that because the trial court orally advised him only that

he had a right “to a speedy and public trial”—and did not orally advise him of his right to

a jury trial—it failed to strictly comply with Crim.R. 11(C)(2)(c). He insists, therefore,

that his plea was not entered knowingly, intelligently, and voluntarily, and must be

vacated.

       {¶ 9} A number of Ohio courts have considered whether a trial court violates

Crim.R. 11(C)(2)(c) when it fails to specifically inform the defendant that he has the right

to a trial by jury. In Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115, the trial court

advised defendant of his right to a “fair and impartial trial,” but failed to specify that he

had the right to a jury trial. Later in its colloquy, while explaining the right against




6.
compulsory self-incrimination, the court informed the defendant that “neither judge nor

jury” could draw any inference if he refused to testify. Id. at 480-481. The Ohio

Supreme Court held that “a rote recitation of Crim. R. 11(C) is not required, and failure

to use the exact language of the rule is not fatal to the plea.” Id. at 480. Rather, the court

explained, the focus on review “is whether the record shows that the trial court explained

or referred to the right in a manner reasonably intelligible to that defendant.” Applying

this standard, the court held that the trial court satisfied its obligation to inform the

appellant of his right to a trial by jury. Id. at 482.

       {¶ 10} The Eleventh District in State v. Young, 11th Dist. Trumbull No. 2009-T-

0130, 2011-Ohio-4018, reached the same conclusion under similar circumstances. There

the trial court advised the defendant of his right to a trial, but failed to specifically

mention the right to a trial by jury. The appellate court found no Crim.R. 11(C)(2)(c)

violation because (1) elsewhere in the trial court’s colloquy, it recited the elements of

each offense and advised defendant that the “state would have to ‘prove [those] elements

by proof beyond a reasonable doubt to the unanimous satisfaction of a jury;’” and (2) the

right to a jury trial was explained in the written plea form executed by the defendant. Id.

at ¶ 27, 39, 40, 55. It held that the defendant’s plea was knowingly, intelligently, and

voluntarily made. Id. at ¶ 57.

       {¶ 11} And the Second District addressed this issue in State v. Smiddy, 2d Dist.

Clark No. 2014-CA-148, 2015-Ohio-4200. There the trial court asked the defendant if he




7.
understood that he had “the right to a trial”—without reference to the right to a trial by

jury. It later stated that the state would have the burden to prove beyond a reasonable

doubt each element of the offenses and that he could be convicted only upon a unanimous

verdict of a jury. Id. at ¶ 6. The appellate court concluded that the trial court adequately

explained the right to a trial by jury given the later reference to the role of the jury and

the specific reference to the right to a jury trial in the written plea agreement. Id. at ¶ 6,

15. It found no Crim.R. 11(C)(2)(c) violation.

       {¶ 12} Here, while the trial court did not specifically advise Hayward of his right

to a jury trial, it brought his attention to page six of the written waiver of rights that he

executed, where the right to a jury trial was explicitly referenced. Moreover, the trial

court explained during the plea colloquy that if Hayward chose not to testify, it would

“instruct the jury” that it could not weigh this as a factor in determining Hayward’s guilt

or innocence. We find that the trial court explained the right to a jury trial in a manner

reasonably intelligible to Hayward, and therefore, complied with Crim.R 11(C)(2)(c) in

accepting Hayward’s guilty plea.

       {¶ 13} We find Hayward’s sole assignment of error not well-taken.

                                           III. Conclusion

       {¶ 14} The trial court complied with Crim.R. 11(C)(2)(c) in accepting Hayward’s

guilty plea despite the fact that it did not recite the language of the rule word-for-word in

explaining the right to a jury trial. We, therefore, find Hayward’s sole assignment of




8.
error not well-taken and affirm the April 25, 2016 judgment of the Wood County Court

of Common Pleas. The costs of this appeal are assessed to Hayward under App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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