Summary
In State v. Strawther, 56 Ohio St.2d 298, 301, 383 N.E.2d 900, the Supreme Court of Ohio noted that "the right to compulsory process is not declared by Boykin to be a constitutional right requiring waiver to appear upon the record."
Summary of this case from State v. ColemanOpinion
No. 78-394
Decided December 7, 1978.
Criminal law — Plea of guilty — Failure to advise defendant of right to compulsory process — Not prejudicial, when.
Where a trial court accepts written pleas of guilty to attempt to commit murder and aggravated robbery, which include a "waiver" of "compulsory process," and dismisses the remaining counts of the indictments without orally advising the defendant that he has a right to compulsory process to obtain witnesses in his behalf, in the absence of prejudicial effect such omission does not constitute prejudicial error and there is substantial compliance with the provisions of Crim. R. 11. ( State v. Stewart, 51 Ohio St.2d 86, approved and followed.)
APPEAL from the Court of Appeals for Hamilton County.
William Elvin Strawther, appellee, was indicted on January 25, 1977, for aggravated burglary, aggravated robbery and attempt to commit murder under case No. B-763916 and, on February 1, 1977, for aggravated robbery under case No. B-770072. After pleading not guilty to all charges at separate arraignments, appellee went on trial. On the second day of trial, appellee plead guilty to attempt to commit murder under case No. B-763916 and aggravated robbery under case No. B-770072. The charges of aggravated burglary and aggravated robbery under case B-763916 were dismissed.
Prior to accepting the guilty pleas, the trial court conducted an oral dialogue, pursuant to Crim. R. 11, with the appellee as to the various rights he was waiving by his pleas with the exception of his right to the compulsory process of the court for obtaining witnesses in his behalf. Appellee signed a written plea of guilty as to the two charges in which he waived his right to said compulsory process. At the time of entering his pleas, in answer to questions put to him by the court, he answered he had read his written pleas and understood them.
Appellee appealed his guilty pleas to the Court of Appeals which reversed the judgment of the trial court because the trial court did not comply with Crim. R. 11(C).
The cause is now before this court upon the allowance of the state's motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Christian J. Schaefer and Mr. William P. Whalen, Jr., for appellant.
Mr. H. Fred Hoefle, for appellee.
The appellant has filed three propositions of law which contend the trial court substantially complied with Crim. R. 11 despite his failure to orally advise the appellee that in pleading guilty to attempt to commit murder and aggravated robbery (R.C. 2903.02 and 2911.01), he would be waiving his right to the use of the compulsory process of the court to obtain witnesses in his behalf.
As to Crim. R. 11, this court in State v. Caudill (1976), 48 Ohio St.2d 342, held:
"1. In accepting a written plea of no contest to a felony charge, the trial court must adhere scrupulously to the provisions of Crim. R. 11(C)(2).
"2. Adherence to the provisions of Crim. R. 11(C)(2) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest.
"3. The requirements of Crim. R. 11(C)(2) are not satisfied by a written statement by the defendant or by representations of his counsel."
However, paragraph one of the syllabus in Caudill was modified by this court in State v. Stewart (1977), 51 Ohio St.2d 86, where it held:
"Where an individual is indicted on a charge of aggravated murder, with specifications thereto, and the trial court accepts a plea of guilty to the lesser included offense of murder (R.C. 2903.02) without personally advising the defendant that he is ineligible for probation, such omission does not constitute prejudicial error, and there is substantial compliance with the provisions of Crim. R. 11. (Paragraph one of the syllabus in State v. Caudill, 48 Ohio St.2d 342, modified.)" (Emphasis added.)
In Stewart, after reviewing numerous federal cases, the majority opinion stated, at page 93:
"Finally, although it can validly be argued that the trial court should adhere scrupulously to the provisions of Crim. R. 11(C)(2) ( State v. Caudill, 48 Ohio St.2d 342), there must be some showing of prejudicial effect before a guilty plea may be vacated. See Crim. R. 52(A)."
The rule adopted by this court in State v. Stewart, supra, requires prejudice to be shown before a plea can be vacated pursuant to Crim. R. 11.
A review of the record in the instant appeal fails to demonstrate any prejudicial effect of the trial court's failure to orally advise appellee that by entering guilty pleas to attempt to commit murder and aggravated robbery he was waiving a right to the use of the compulsory process of the court to obtain witnesses in his behalf.
The record does indicate a waiver of the constitutional rights contained in Rule 11 of privilege against compulsory self-incrimination, right to trial by jury and the right to confront one's accusers as required by Boykin v. Alabama (1969), 395 U.S. 238. However, the right to compulsory process is not declared by Boykin to be a constitutional right requiring a waiver to appear upon the record.
In addition, the record indicates a jury had been impanelled and trial was about to begin when the pleas were entered. Subpoenas for witnesses should have already been issued. Also, the appellee, at the time of his written pleas of guilty waived his rights including his right "to have compulsory process for obtaining witnesses in my favor."
The record does not demonstrate any prejudicial effect as a result of the trial court's oversight and we therefore conclude the trial court substantially complied with Crim. R. 11.
Where a trial court accepts written pleas of guilty to attempt to commit murder and aggravated robbery, which include a "waiver" of "compulsory process," and dismisses the remaining counts of the indictments without orally advising the defendant that he has a right to compulsory process to obtain witnesses in his behalf, in the absence of prejudicial effect such omission does not constitute prejudicial error and there is substantial compliance with the provisions of Crim. R. 11.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
LEACH, C.J., CELEBREZZE, W. BROWN, SWEENEY and LOCHER, JJ., concur.
P. BROWN, J., concurs in the judgment and in the concurring opinion of LEACH, C.J.
COOK, J., of the Eleventh Appellate District, sitting for HERBERT, J.
On the basis that the underlying purpose of Crim. R. 11 is to enable the trial court on the record, "to determine fully the defendant's understanding of the consequences of his plea of guilty," (see paragraph two of the syllabus of State v. Caudill, 48 Ohio St.2d 342), I would modify the rule of law announced in paragraph three of the syllabus of Caudill to read:
"The requirements of Crim. R. 11(2)(C) are not satisfied merely by a written statement of the defendant or by representations of his counsel."
Here that basic purpose and the reason for the rule has been fully complied with in the oral dialogue between the court and the defendant himself.
P. BROWN, J., concurs in the foregoing concurring opinion of LEACH, C.J.