[Cite as State v. Adams, 2016-Ohio-2757.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

STATE OF OHIO,                                 :    Case No. 15CA44

        Plaintiff-Appellee,                    :

        v.                                     :    DECISION AND
                                                    JUDGMENT ENTRY
ROGER A. ADAMS,                                :

        Defendant-Appellant.                   :    RELEASED: 4/27/2016

                                            APPEARANCES:

Angela Wilson Miller, Jupiter, Florida, for appellant.

Kevin Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.

Harsha, J.
        {¶1}    The State indicted Roger A. Adams on theft, forgery and two counts of

assault. In exchange for Adams’s guilty plea to forgery and one count of assault, the

state dismissed the other two charges. After the court sentenced him to prison and

ordered restitution, Adams appealed, raising two assignments of error.

        {¶2}     First he argues that his guilty plea was obtained in violation of his state

and federal constitutional rights and Crim.R. 11(C). He asserts that at the plea hearing,

the trial court failed to comply with Crim.R. 11(C)(2)(c) because the trial court did not

advise him that he was waiving his rights against self-incrimination, to a jury trial, to

confront witnesses against him, to have compulsory process for obtaining favorable

witnesses, and to require the state to prove guilt beyond a reasonable doubt. The state

argues that a review of the totality of the circumstances, including the language in the

written guilty plea and the trial court’s statements at the sentencing hearing concerning
Washington App. No. 15CA44                                                                   2


the constitutional rights set forth in the written plea, shows that the trial court

substantially complied with Crim.R. 11(C)(2)(c), even if it did not give an oral recitation

of the language contained in it. However, Crim.R. 11(C)(2)(c) requires strict

compliance. The trial court failed to explain the constitutional rights set forth in Crim.R.

11(C)(2)(c) and instead relied exclusively on Adams’s defense counsel to do so through

the use of the written guilty plea. As a result, the trial court failed to strictly comply with

the rule and its constitutional and procedural safeguards.

       {¶3}   Next, Adams argues that his trial counsel rendered ineffective assistance

of counsel by failing to object to the order that he pay restitution in the amount of $100

to the elderly female victim he struck. Because we reverse Adams’s conviction based

upon the trial court’s failure to comply with Crim.R. 11(C)(2)(c), his second assignment

of error concerning the court’s order of restitution is moot and we need not address it.

See App.R. 12(A)(1)(c).

                               I. ASSIGNMENTS OF ERROR

       {¶4}   Adams raises two assignments of error:

       1.     APPELLANT’S PLEA WAS OBTAINED IN VIOLATION OF THE FIFTH
              AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
              CONSTITUTION, ARTICLE I SECTION 10 OF THE OHIO
              CONSTITUTION AND CRIM.R. 11(C).

       2.     TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN
              VIOLATION OF ADAMS’ RIGHTS UNDER THE FIFTH, SIXTH, AND
              FOURTEENTH AMENDMENTS TO THE UNITED STATES
              CONSTITUTION AND OHIO CONSTITUTION ARTICLE I, §§ 5, 10, AND
              16. IN THE ALTERNATIVE, ADAMS ARGUES THAT THE RESTITUTION
              AWARD TO [THE VICTIM] AMOUNTED TO PLAIN ERROR. CRIM. R.
              52(B).

                                  II. LAW AND ANALYSIS

                                  A. Validity of Guilty Plea
Washington App. No. 15CA44                                                                   3


                        1. Crim. R. 11(C) and Standard of Review

       {¶5}   In his first assignment of error Adams contends that his guilty plea was

obtained in violation of his federal and state constitutional rights and the requirements of

Crim.R. 11 because the trial court did not strictly comply with Crim.R. 11(C)(2)(c).

       {¶6}    “ ‘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.’ ” State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897

N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450

(1996). “Crim.R. 11(C) governs the process that a trial court must use before accepting

a felony plea of guilty or no contest.” Veney at ¶ 8. Before accepting a guilty plea in a

felony case a trial court must address the defendant personally and determine that “the

defendant is making the plea voluntarily, with understanding of 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 at the

sentencing hearing.” Crim.R. 11(C)(2)(a). The court must also inform the defendant of

both the constitutional and nonconstitutional rights he is waiving and determine that he

“understands 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).

Finally, the court must both inform and determine that the defendant understands that

he “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
Washington App. No. 15CA44                                                                 4


defendant cannot be compelled to testify against himself or herself.” Crim.R.

11(C)(2)(c).

       {¶7}    When we determine whether a guilty [or no-contest] plea was entered

knowingly, intelligently, and voluntarily, we conduct a de novo review of the record to

ensure that the trial court complied with the constitutional and procedural safeguards.

State v. Moore, 4th Dist. Adams No. 13CA965, 2014–Ohio–3024, ¶ 13; see also State

v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, ¶ 27-31.

               2. Constitutional Rights Enumerated in Crim. R. 11(C)(2)(c)

       {¶8}    Adams contends that the trial court erred by failing to inform him of any of

the constitutional rights set forth in Crim.R. 11(C)(2)(c). Adams claims that the trial

court's reference to the constitutional rights set forth in the written plea agreement fails

to comply with the rule as interpreted in Veney, supra. The written guilty plea contains

the following recitation of the constitutional rights enumerated in Crim.R. 11(C)(2)(c):

       I understand by pleading guilty I give up my right to a jury trial or court trial,
       where I could see and have my attorney question witnesses against me, and
       where I could use the subpoena power of the Court to call witnesses to testify for
       me. I know at trial I would not have to take the witness stand and could not be
       force to testify against myself and that no one could comment if I chose not to
       testify. I understand I waive my right to have the prosecutor prove my guilt
       beyond a reasonable doubt on every element of each charge.

       {¶9}    At the sentencing hearing, the trial court engaged in the following

dialogue:

        COURT: Now, Attorney Fowler, did you go over this written plea of guilty with Mr.
        Adams?
        MR. FOWLER: I did, your honor.
        COURT: Okay. Did you advise him of all of his rights, state and federal?
        MR. FOWLER: I did, your honor.
                       *     *     *
        COURT: Now, Mr. Adams, is it your intention to have the Court enter this written
guilty plea into the record today?
Washington App. No. 15CA44                                                                 5


        DEFENDANT: Yes.
        COURT: Can you read and write?
        DEFENDANT: Yes.
        COURT: Did you read the written plea of guilty before you signed it?
        DEFENDANT: Yes.
        COURT: And is it correct you had an opportunity to review this written plea of
guilty with Attorney Fowler?
        DEFENDANT: Yes.
        COURT: And do you affirm that Attorney Fowler answered all your questions and
addressed your concerns?
        DEFENDANT: Yes.
        COURT: Are you satisfied with the services and the advice of Attorney Fowler?
        DEFENDANT: Yes.
        COURT Is there anything about this written plea or today’s proceedings, that you
do not understand?
        DEFENDANT: No.
        COURT: Do you understand that when you signed this plea, . . . you waived all of
the Constitutional rights that are explained in the written plea of guilty, and when I
accept this guilty plea, you will be found guilty of these charges? Do you understand
that?
        DEFENDANT: Yes.
        COURT: Are you doing this voluntarily?
        DEFENDANT: Yes.


       {¶10} “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 [the specified

constitutional rights, including] the privilege against self-incrimination.” Veney, 120 Ohio

St.3d 176, 2008–Ohio–5200, 897 N.E.2d 621, at syllabus. Under Crim.R. 11(C)(2)(c),

the trial court must orally inform the defendant that by pleading no contest or guilty, 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.”

       {¶11} But, “[f]ailure to use the exact language contained in Crim.R. 11(C), in

informing a criminal defendant of his constitutional rights related to such trial, including
Washington App. No. 15CA44                                                                  6


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.” State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph two

of the syllabus. Therefore, “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. In other words, strict compliance does not mean literal

compliance. State v. Kerns, 4th Dist. Highland No. 15CA6, 2016-Ohio-63, ¶ 30-33.

       {¶12} “Although 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.” Veney at ¶ 29. The trial court does not satisfy the requirement of

Crim.R. 11(C) by simply extracting comments or answers by defense counsel about the

defendant's knowledge of his rights. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-

4130, 953 N.E.2d 826, ¶ 14-15.

       {¶13} Here the trial court did not explain the constitutional rights set forth in

Crim.R. 11(C)(2)(c). Instead, the court referenced “Constitutional rights that are

explained in the written plea of guilty” – which are the same constitutional rights

identified in Crim.R. 11(C)(2)(c) – and determined that Adams’s counsel explained them

to him and Adams read them and understood them. Thus, the court failed to engage in

the proper colloquy on Adams’s constitutional rights, and instead relied entirely upon

defense counsel to explain those rights, set forth in the written guilty plea.

       {¶14} The Supreme Court of Ohio explained the extent to which a written plea

agreement could be used to satisfy the requirements of Crim.R. 11(C)(2)(c) in State v.
Washington App. No. 15CA44                                                                 7

Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826. There the Court found

that the court of appeals incorrectly interpreted Veney in finding that the written plea

agreement could not be used, in part, to determine whether a trial court had adequately

explained the right to compulsory process:

               In addition to invalidating Barker's plea based on the alleged
       insufficiency of the language employed to describe the right to compulsory
       process, the court of appeals cited Veney, which states that “ ‘the court
       cannot simply rely on other sources to convey these rights' ” to the
       defendant. Barker, 2010-Ohio-3067, 2010 WL 2638515, ¶ 15, quoting
       Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 29. The
       court held that the plea agreement was another source and therefore
       could not be employed to satisfy the constitutional mandate in Crim.R.
       11(C)(2)(c). We disagree.

               In Veney, this court held, “Although 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 those rights to the defendant.” Id. at ¶ 29.
       However, Veney can be distinguished on its facts. The court noted that in
       Veney's case, “it [was] undisputed that the trial court plainly failed to orally
       inform Veney of his constitutional right to require the state to prove his
       guilt beyond a reasonable doubt.” Id. at ¶ 30. Therefore, because the trial
       court had completely “failed to orally inform” the defendant of the right in
       question, under the facts of Veney, the court could not “simply rely on
       other sources to convey these rights.” Id. at ¶ 29.5

               In Ballard, as here, the trial court did not “simply” rely on the written
       plea. Rather, the trial court engaged in a full plea colloquy with the
       defendant and addressed the right of compulsory process of witnesses.
       Thus, 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. We further note
       that this interpretation comports with federal law, which does not require
       automatic vacation of a plea when a judge fails to inform a defendant of a
       Boykin right. Boykin, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. See
       United States v. Vonn (2002), 535 U.S. 55, 59, 122 S.Ct. 1043, 152
       L.Ed.2d 90.


Barker at ¶ 22-24.
Washington App. No. 15CA44                                                                   8

       {¶15} Under Barker, Veney and Ballard, the trial court’s sole and exclusive use

of the language in the written guilty plea, and reliance upon Adams’s defense counsel to

explain what the court referred to as “the Constitutional rights” to him, are insufficient to

satisfy the requirements of Crim.R. 11(C)(2)(c).

       {¶16} The state argues that the trial court referred to “the Constitutional rights”

Adams was waiving and therefore the written plea agreement could be used to clarify

this ambiguous reference. The state cites State v. Ross, 2013-Ohio-3220, 996 N.E.2d

1033 (9th Dist.); State v. Bennett, 9th Dist. Summit No. 26241, 2012-Ohio-3664; and

State v. Coleman, 9th Dist. Summit No. 26008, 2012-Ohio-1712. These cases are

factually distinguishable. The trial courts in each of those three cases orally explained

the constitutional rights to the defendant using language other than the verbatim

language of Crim. R. 11(C)(2)(c). See Ross at ¶ 7 (“At Ross's plea hearing, the trial

court advised him that by pleading guilty he was ‘giving up [his] right to a jury trial on

both these cases; giving up [his] right [to] make the prosecutor prove the charge against

[him] beyond a reasonable doubt; [he was] giving up [his] right to have [his attorney]

subpoena and cross-examine witnesses for [him]; [and he was] giving up [his] right to

testify or not testify in [his] own defense[.]’ ”); see Bennett at ¶ 7 (“The trial court advised

Mr. Bennett that, by changing his pleas to guilty, he would ‘give up [his] right to a jury

trial, give up [his] right to making the prosecutor prove all the charges against [him]

beyond a reasonable doubt, give up the right to have [his lawyer] subpoena and cross-

examine witnesses for [him], give up the right to testify or not testify in [his] own

defense, and ... give up the right to then appeal that [he] would have had if we'd gone to

trial....’ ”); see Coleman at ¶ 7 (“At Mr. Coleman's plea hearing, the trial court spoke to
Washington App. No. 15CA44                                                                9


Mr. Coleman, stating: ‘[B]y changing your plea you will give up your right to a jury trial;

give up your right to make the prosecutor prove all the charges against you beyond a

reasonable doubt; give up the right to have [your counsel] subpoena and cross-examine

witnesses for you; give up the right to testify or not testify in your own defense, and you

will give up your appellate rights[.] Do you understand all of that?’ ”).

       {¶17} In all three cases, the Ninth District Court of Appeals found “that any

ambiguity inherent in the language used at the hearing was resolved by the written plea

form.” Ross at ¶ 9. Here, the trial court simply did not make any attempt to orally

explain Adams’s constitutional rights to him, but relied exclusively on defense counsel to

explain them through the written plea agreement.

       {¶18} Accordingly, we reject the state’s argument and hold the trial court did not

strictly comply with Crim.R. 11(C)(2)(c). Therefore, his guilty plea was not voluntary,

knowing, and intelligent, and we sustain his first assignment of error.

       {¶19} Because we reverse Adams’s conviction based upon the trial court’s

failure to comply with Crim.R. 11(C)(2)(c), his second assignment of error concerning

restitution is moot and we need not address it. See App .R. 12(A)(1)(c).

                                     III. CONCLUSION

       {¶20} The trial court’s failure to inform Adams of his constitutional rights as

required by Crim.R. 11(C)(2)(c) rendered his guilty plea invalid on the grounds that it

was not made knowingly, intelligently and voluntarily. Having sustained his first

assignment of error, we reverse the judgment of the trial court and remand the cause.


                                                                  JUDGMENT REVERSED,
                                                                     CAUSE REMANDED.
Washington App. No. 15CA44                                                             10


                                  JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.



                                  For the Court




                                  BY: ________________________________
                                      William H. Harsha, Judge


                                NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
