State v. Gomez , 100 N.E.3d 1038 ( 2017 )

[Cite as State v. Gomez, 2017-Ohio-8832.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 16AP-560
(C.P.C. No. 15CR-3965)
v. :
(REGULAR CALENDAR)
Julio H. Gomez, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 5, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: Yeura R. Venters, Public Defender, and John W.
Keeling, for appellant. Argued: John W. Keeling.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Julio H. Gomez, from a judgment
of conviction and sentence entered by the Franklin County Court of Common Pleas
following his entry of a guilty plea to nine counts of trafficking in heroin and one count of
engaging in a pattern of corrupt activity.
{¶ 2} On August 14, 2015, appellant was indicted on one count of engaging in a
pattern of corrupt activity, in violation of R.C. 2923.32 (a felony of the first degree), seven
counts of trafficking in heroin, in violation of R.C. 2925.03 (all felonies of the first degree),
one count of trafficking in heroin, in violation of R.C. 2925.03 (a felony of the second
degree), and one count of trafficking in heroin, in violation of R.C. 2925.03 (a felony of the
third degree). The indictment also named four co-defendants.
No. 16AP-560 2
{¶ 3} On May 16, 2016, appellant appeared before the trial court and entered a
plea of guilty to all ten counts of the indictment. During the plea proceedings, the
prosecutor gave the following recitation of the facts, beginning with Count 2 of the
indictment. According to the prosecutor, the events giving rise to Count 2 occurred on
June 30, 2015, after detectives with the Columbus Police Department identified "the
group that was indicted in this case involving [appellant] and his co-defendants." On that
date, co-defendant Manuel Montero, characterized by the prosecutor as a "runner"
dispatched by appellant, "sold over 50 grams of heroin to * * * Richard Adams." Adams
was detained by detectives "and found in possession of the heroin." (May 16, 2016 Tr.
at 9.)
{¶ 4} The group remained under surveillance, and the events giving rise to
Count 3 occurred "[t]wenty-one days later," when detectives "observed a similar narcotics
trafficking incident with Joseph Martini," whereby "Martini would call [appellant] and
Montero did the sale [for] over 250 grams of heroin." (May 16, 2016 Tr. at 9, 10.) With
respect to Count 4, the prosecutor related that "Martini became an informant after his
first arrest and made a controlled purchase from the same two individuals for over 50
grams of heroin on July 28, 2015." Count 5 involved "an additional sale to the informant
of greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.)
{¶ 5} The conduct giving rise to Counts 6, 7, 8, 9, and 10 of the indictment
occurred on August 5, 2015, as "[s]earch warrants were executed at about six or seven
locations identified as either the places in which the defendants were sleeping, where they
were obtaining the drugs, cutting up the drugs or storing the drugs and money."
Specifically, Count 6 involved "one of the locations [that] had numerous kilos of heroin
that was used as a storage location by this group." With respect to Count 7, heroin was
discovered in "the co-defendant's car with him" (i.e., specifically, co-defendant Omar
Sanchez). (May 16, 2016 Tr. at 10.)
{¶ 6} The prosecutor represented that Count 8 was for "another of the locations
and that was greater than 50 grams of heroin." (May 16, 2016 Tr. at 10.) Count 9
involved the discovery of heroin at "another storage location, greater than 250 grams."
Finally, Count 10 involved the recovery of "greater than ten grams" of heroin at the home
of co-defendant Sanchez. (May 16, 2016 Tr. at 11.)
No. 16AP-560 3
{¶ 7} Regarding the facts giving rise to Count 1, the prosecutor related that
appellant "would take calls from customers and dispatch Montero to facilitate the
trafficking in heroin for this group on more than two occasions for the RICO offense."
The prosecutor further related that the heroin "was being sold for about 900 to $1,100 an
ounce," and that "each of these transactions was for about $9,000 or so." (May 16, 2016
Tr. at 11.)
{¶ 8} Following the recitation of facts, the trial court engaged in a colloquy with
appellant regarding his plea. The trial court accepted appellant's guilty plea, ordered a
presentence investigation report and scheduled a sentencing hearing date.
{¶ 9} The trial court conducted a sentencing hearing on June 23, 2016. During
the hearing, the trial court noted that, at the time of the May 16, 2016 plea hearing, "the
Court incorrectly advised the defendant regarding the maximum possible sentence in this
case." (June 23, 2016 Tr. at 2.) Specifically, the court noted:
The flaw was related to Count Seven where it was originally
pled as an F-1, requiring - - or having the maximum of 11 years
of mandatory prison time. However, Count Seven is actually
an F-3 and on the previous guilty plea it was listed as both.
And on the previous guilty plea * * * the Court previously
advised Mr. Gomez that his maximum prison sentence that
was possible was 110 years when in actuality, the maximum
prison sentence that's possible for Mr. Gomez is less than 110
years and is actually 99 years.
(June 23, 2016 Tr. at 2-3.)
{¶ 10} The trial court inquired of appellant whether he understood, and appellant
responded affirmatively. Defense counsel represented to the court that he had explained
this development to appellant "outside of the courtroom." Defense counsel further stated
on the record: "We would waive any defect in the plea, proceed on the plea as originally
entered, but with this amendment obviously to his benefit." (June 23, 2016 Tr. at 4.)
{¶ 11} The prosecutor, "out of [an] abundance of caution," noted that the trial
court, at the time of the plea, "indicated there were no promises as to sentencing," and
that defense counsel "had indicated an approximate range" of sentence "pursuant to off-
the-record discussions." (June 23, 2016 Tr. at 5-6.) The prosecutor further noted that,
based on subsequent events, "the Court has become aware more fully of the facts of this
case, as well as the existence of a previously unknown significant record." The prosecutor
No. 16AP-560 4
then represented to the court: "In case the defendant is not sentenced in the range that
was indicated by [defense counsel], we want you to make sure that the defendant has the
opportunity, if he wishes, to withdraw his guilty plea." (June 23, 2016 Tr. at 6.)
{¶ 12} In response, defense counsel stated: "I have told my client today that
because of the facts that came out during the presentence report and specifically this
arrest and deportation that the Court wasn't aware of, that may not be the range."
Defense counsel also represented that he told his client "he would be able to withdraw his
plea, but that * * * plea negotiations would probably stop and this will be set for trial and
go that route." (June 23, 2016 Tr. at 7.) Defense counsel stated that his client wanted to
proceed "with the sentencing today with this amendment." (June 23, 2016 Tr. at 8.) The
trial court then inquired of appellant whether he wished to proceed with sentencing, and
appellant responded affirmatively.
{¶ 13} By decision and entry filed August 23, 2016, the trial court sentenced
appellant to an aggregate term of 22 years imprisonment. The court's entry also indicated
that appellant was subject to a mandatory five-year term of post-release control.
{¶ 14} On appeal, appellant sets forth the following two assignments of error for
this court's review:
[I.] THE STATE ERRED WHEN IT CREATED FIVE
SEPARATE CHARGES OUT OF THE SIMULTANEOUS
POSSESSION OF THE SAME DRUG FOUND AT SEPARATE
LOCATIONS INSTEAD OF AGGREGATING THE AMOUNTS
INTO A SINGLE OFFENSE. THE TRIAL COURT
CONSEQUENTLY ERRED WHEN IT FAILED TO
PROPERLY ADVISE THE DEFENDANT ON THE
MAXIMUM PENATLY OF THE CHARGES, THE NATURE
OF THE CHARGES, AND THE EFFECTS OF THE PLEA, AS
A RESULT OF THE FAILURE TO MERGE THE FIVE
CHARGES INTO A SINGLE OFFENSE.
[II.] THE TRIAL COURT ERRED WHEN IT FAILED TO
COMPLY WITH CRIM.R. 11 BY INFORMING THE
DEFENDANT THAT HE COULD NOT BE COMPELLED TO
TESTIFY AGAINST HIMSELF AT TRIAL.
{¶ 15} Under the first assignment of error, appellant challenges Counts 6 through
10 of the indictment as multiplicitous, arguing that the counts involved the same type of
drug (i.e., heroin), found on the same date at five different locations. Appellant argues
that, based on plaintiff-appellee, the State of Ohio's, recitation of the facts, police officers
No. 16AP-560 5
executed search warrants on August 5, 2015 at seven apartments and one storage locker,
and heroin was found at five of the locations, constituting grounds for Counts 6 through
10 of the indictment. Appellant maintains that the above facts give rise to the legal issue
of whether the state can file separate charges for simultaneous possession of the same
type of drug found at different locations, or whether the state was required to aggregate
the drugs into a single offense.
{¶ 16} At the outset, we note the state raises the issue of whether appellant has
waived his claim that the indictment was multiplicitous by failing to raise an objection to
the indictment and by entering a guilty plea to the offenses at issue. In support, the state
relies on State v. Conn, 12th Dist. No. CA2014-04-059, 2015-Ohio-1766, ¶ 47, in which
the court held the defendant waived any claim that his 50-count indictment was defective
and multiplicitous by failing to raise alleged defects in the indictment prior to entering his
guilty plea. The state also cites this court's decision in State v. Fortner, 10th Dist. No.
08AP-191, 2008-Ohio-5067, ¶ 10 (holding that "[b]ecause appellant pled guilty to six
counts of aggravated robbery as charged in his indictment, he has waived his right to
challenge alleged defects in the indictment"). The state, however, acknowledges that
appellant has also raised a merger argument (which, when not raised in the trial court,
operates as a forfeiture, not waiver, of all but plain error). See State v. Rogers, 143 Ohio
St.3d 385, 2015-Ohio-2459, ¶ 19-21.
{¶ 17} Accepting, for purposes of argument, that appellant has not waived the
issue of multiplicity, we disagree with his contention that the state was precluded from
charging him with multiple counts of trafficking based on conduct occurring on the same
date. In general, "[a]n indictment is multiplicitous where it charges a single offense in
multiple counts." State v. Hendrix, 11th Dist. No. 2011-L-043, 2012-Ohio-2832, ¶ 51. In
this respect, the " 'vice of a multiplicitous indictment lies in the possibility of multiple
punishments for a single offense in violation of the cumulative punishment branch of the
Double Jeopardy Clause of the Fifth Amendment.' " Id., quoting State v. Childs, 88 Ohio
St.3d 558, 561 (2000).
{¶ 18} Even if counts are multiplicitous, "merging them for purposes of sentencing,
pursuant to R.C. 2941.25, will cure any threat of double jeopardy." Id. Thus, under Ohio
law, "the state may charge a defendant with multiple counts for multiple offenses, based
upon the criminal conduct of the defendant." Conn at ¶ 48. Specifically, R.C. 2941.25,
No. 16AP-560 6
which "codifies the protections of the Double Jeopardy Clause of the United States and
Ohio Constitutions, clearly provides that 'where the same conduct by defendant can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be
convicted of only one." (Emphasis sic.) Id., quoting R.C. 2941.25.
{¶ 19} R.C. 2925.03 sets forth the offense of trafficking in drugs, and states in part:
(A) No person shall knowingly do any of the following:
***
(2) Prepare for shipment, ship, transport, deliver, prepare for
distribution, or distribute a controlled substance or a
controlled substance analog, when the offender knows or has
reasonable cause to believe that the controlled substance or a
controlled substance analog is intended for sale or resale by
the offender or another person.
{¶ 20} As noted, appellant contends Counts 6 through 10 of the indictment are
multiplicitous as involving the simultaneous possession of the same contraband. In
support, appellant relies on federal cases holding that possession of drug stashes
recovered on the same day constitute a single offense under the federal statute for
possession with intent to distribute (21 U.S.C. 841(a)(1)). See, e.g., United States v.
Stephens, 118 F.3d 479 (6th Cir.1997); Thompson v. United States, N.D.N.Y. No. 3:04-
CV-1321 (May 2, 2005); United States v. Clay, 355 F.3d 1281 (11th Cir.2004); United
States v. Woods, 568 F.2d 509 (6th Cir.1978).1
{¶ 21} As observed by the state, however, under Ohio law, the primary legislative
statement on multiplicity is set forth in R.C. 2941.25, which addresses allied offenses of
similar import. See, e.g., State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5977, ¶ 8
1 We note, however, a number of federal courts have held that convictions for multiple counts of possession
on the same date involving distinct stashes of drugs do not raise multiplicity or double jeopardy issues. See,
e.g., State v. Maldonado, 849 F.2d 522, 524 (11th Cir.1988) (two-count indictment for possession with
intent to distribute on same date not multiplicitous where two separate stashes, each with a different
quantity of cocaine, were found in separate locations); Davis v. Berghuis, E.D.Mich. No. 2:07-CV-10129
(Apr. 30, 2008) (convictions for possession with intent to deliver 225-650 grams of cocaine and possession
with intent to deliver less than 50 grams of cocaine, where one stash found on defendant and another found
in bedroom on same date, did not violate double jeopardy); United States v. Williams, 339 Fed.Appx. 654,
658 (7th Cir.2009) (although defendant was convicted of "two counts charging him with possessing a
controlled substance on the same day, his convictions raise no issue of multiplicity" where prosecution
proved defendant possessed 100 grams of crack cocaine found in aerosol can found in car and he also
possessed 240 grams of cocaine in apartment).
No. 16AP-560 7
("In Ohio, R.C. 2941.25 codifies federal and state constitutional protections."); State v.
Painter, 12th Dist. No. CA2014-03-022, 2014-Ohio-5011, ¶ 17 ("the remedy for a
multiplicitous indictment is to analyze the charges according to the allied offenses statute,
R.C. 2941.25").
{¶ 22} Further, as earlier noted, "[a]n accused's failure to raise the issue of allied
offenses of similar import in the trial court forfeits all but plain error." Rogers at ¶ 3.
Forfeited error "is not reversible error unless it affected the outcome of the proceeding
and reversal is necessary to correct a manifest miscarriage of injustice." Id. In considering
whether plain error has occurred, "an accused has the burden to demonstrate a
reasonable probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus." Id. In the absence of
such a showing, "the accused cannot demonstrate that the trial court's failure to inquire
whether the convictions merge for purposes of sentencing was plain error." Id.
{¶ 23} In the instant case, the state argues that appellant cannot demonstrate plain
error where the facts indicate Counts 6 through 10 involve varying amounts of heroin
discovered at multiple different locations. We agree.
{¶ 24} Under Ohio law, the fact that drugs may have been recovered on the same
date is not dispositive of the allied offense issue. See State v. Lewis, 12th Dist. No.
CA2008-10-045, 2012-Ohio-885, ¶ 21 (two trafficking offenses occurring on same date
not allied offenses of similar import where defendant sold less than 5 grams of cocaine to
an undercover officer and then, after leaving scene, was stopped by law enforcement
officers who found cocaine that defendant had discarded at the time he was stopped). See
also State v. Williams, 5th Dist. No. 11-CA-115, 2012-Ohio-3211, ¶ 20 (rejecting argument
that sale of drugs (psilocybin/psilocin mushrooms) and possession of same type of drugs
on same date constitute same conduct or animus; act of "selling or offering was separated
in time and space from the possession of different mushrooms in a different bag in a
different location"); State v. Ward, 3d Dist. No. 13-10-11, 2011-Ohio-254, ¶ 29
(convictions for trafficking in marijuana not allied offenses; although the three sales of
marijuana all took place on same date, they were separate sales and thus "stemmed from
three separate transactions").
{¶ 25} Here, the limited record on appeal indicates that law enforcement officials
recovered differing quantities of heroin in different locations on the date at issue.
No. 16AP-560 8
Specifically, according to the state's sentencing hearing memorandum and the recitation
of facts provided during the plea hearing, the following amounts of heroin were recovered
at the following locations: (1) 8,083 grams of heroin located on Chestnut Ridge Loop,
(2) 1,041 grams of heroin at an apartment located on Freedom Crossing, (3) 9.6 grams of
heroin at an apartment located on Glenmore Way, (4) 950.6 grams of heroin located on
Taliesin Place, and (5) 154.3 grams of heroin located on Pendergrast Place. On review, we
agree with the state that, where the facts presented indicate the recovery of stashes found
at separate locations, involving different quantities of drugs, appellant has not shown a
reasonable probability that the convictions at issue are allied offenses of similar import
committed with the same conduct and without a separate animus. Rogers at ¶ 3. Thus,
appellant cannot demonstrate the trial court's failure to inquire whether the convictions
merged for purposes of sentencing constituted plain error. Id.
{¶ 26} Appellant also contends the failure to properly merge the offenses into a
single offense also adversely affected the voluntary and knowing nature of the plea
proceedings on grounds he was erroneously advised the maximum penalty he was facing
was 99 years (instead of, according to appellant, 66 years had the offenses merged).
Having found, however, that appellant has failed to demonstrate plain error as to the
merger issue, we find no merit with his claim that the trial court's failure to merge the
offenses affected the plea proceedings.
{¶ 27} Based on the foregoing, appellant's first assignment of error is without merit
and is overruled.
{¶ 28} Under the second assignment of error, appellant argues the trial court erred
in failing to strictly comply with Crim.R. 11 by not properly advising him of his right
against self-incrimination. Specifically, appellant contends the trial court failed to inform
him that he could not be compelled to testify against himself.
{¶ 29} Crim.R. 11(C)(2) states 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:
(a) Determining 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
No. 16AP-560 9
the defendant is not eligible for probation or for the
imposition of community control sanctions at the sentencing
hearing.
(b) Informing the defendant of and determining that the
defendant 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.
(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.
{¶ 30} Certain rights enunciated under Crim.R. 11(C)(2) are constitutional rights of
which a defendant must be personally informed, i.e., "(1) the right to a jury trial, (2) the
privilege against self-incrimination, (3) the right to compulsory process, and (4) the right
to confront one's accuser's." State v. McKee, 11th Dist. No. 97-T-0036 (June 19, 1998). A
trial court "must strictly comply with those provisions of Crim.R. 11(C) that relate to the
waiver of constitutional rights." State v. Hussing, 8th Dist. No. 97972, 2012-Ohio-4938,
¶ 19.
{¶ 31} Strict compliance, however, does not require a "rote recitation of Crim.R.
11(C)," and a trial court's "failure to use the exact language of the rule is not fatal to the
plea. Rather, the focus, upon review, is whether the record shows that the trial court
explained or referred to the right in a manner reasonably intelligible to that defendant."
State v. Ballard, 66 Ohio St. 2d 473, 480 (1981). Thus, while the preferred method of
advising a criminal defendant of his or her constitutional rights during the plea colloquy is
to utilize the language contained in Crim.R. 11(C), "a trial court's failure to literally comply
with Crim.R. 11(C) does not invalidate a plea agreement if the record demonstrates that
the trial court explained the constitutional right ' "in a manner reasonably intelligible to
that defendant." ' " (Emphasis added in Veney.) State v. Barker, 129 Ohio St. 3d 472,
2011-Ohio-4130, ¶ 14, quoting State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, ¶ 27,
quoting Ballard at 473.
No. 16AP-560 10
{¶ 32} A review of the plea hearing in the instant case indicates that, as part of
those proceedings, the trial court engaged in the following colloquy with appellant:
THE COURT: Do you understand you have the right to a trial
by a jury of 12 people.
THE INTERPRETER: Yes.
THE COURT: Do you understand you could waive your right
to a jury and have me decide this matter instead?
THE INTERPRETER: Yes.
THE COURT: Do you understand that the decision to go to
trial or plead guilty today rests entirely with you?
THE INTERPRETER: Yes.
THE COURT: Do you understand if you went to trial, the
prosecution would have to prove your guilt beyond a
reasonable doubt?
THE INTERPRETER: Yes.
THE COURT: Do you understand that you would have the
right to face and question witnesses, and to call or compel
witnesses to come in and testify on your behalf?
THE INTERPRETER: Okay. Okay. Yeah.
THE COURT: Do you understand that you could testify on
your own behalf or not have your silence used against you if
you chose not to testify?
THE INTERPRETER: Yes.
THE COURT: Do you understand you would have the
automatic right to appeal a verdict rendered by a jury or by
me?
THE INTERPRETER: Yes.
THE COURT: And that by pleading guilty today you're giving
up that right?
THE INTEPRETER: Yes.
No. 16AP-560 11
THE COURT: Okay. Do you have any questions about any of
the rights we just discussed?
THE INTERPRETER: No.
(May 16, 2016 Tr. at 20-22.)
{¶ 33} In asserting the trial court did not adequately inform him of his privilege
against self-incrimination, appellant challenges the following language (cited above) by
the court: "Do you understand that you could testify on your own behalf or not have your
silence used against you if you chose not to testify?" (May 16, 2016 Tr. at 21.)
{¶ 34} Ohio courts, however, have addressed and rejected challenges involving
similar colloquy language. Under the facts in State v. Bassett, 8th Dist. No. 90887, 2008-
Ohio-5597, ¶ 17, the trial court advised the defendant in part: "[Y]ou can choose not to
testify and the prosecutor could not comment upon that fact in violation of your 5th
Amendment right." The defendant in Bassett argued that the plea was invalid because the
trial court did not inform her that "she could not be compelled to testify against herself if
she chose to go to trial." Id. at ¶ 8. The court in Bassett disagreed, holding that "the
court's wording that appellant could choose not to testify is the equivalent of saying that
the state could not compel her to testify and amounts to strict compliance under Crim.R.
11(C)(2)." Id. at ¶ 20.
{¶ 35} In State v. Scanlon, 5th Dist. No. 95-134 (June 29, 1998), the appellant
argued the trial court's advice on the constitutional right not to testify was flawed because
the court failed to inform him the state could not compel him to testify against himself.
Under the facts of that case, the trial court advised the appellant that, if he pled no
contest, he was "waiving his right to testify at trial if he wanted to, or refuse to testify if he
did not wish to." On appeal, the court in Scanlon rejected the appellant's argument,
holding that the trial court had complied with Crim.R. 11. See also State v. Finney, 8th
Dist. No. 99646, 2014-Ohio-1054, ¶ 13 (trial court strictly complied with Crim.R. 11 in
informing defendant that "he had the right to choose not to testify and that no one could
use his silence in any way"); State v. Adams, 8th Dist. No. 70045 (May 22, 1997) (trial
court complied with Crim.R. 11(C) by advising defendant he had "the right to testify or to
choose not to testify").
{¶ 36} This court has also addressed and rejected similar challenges. In State v.
Truitt, 10th Dist. No. 10AP-795, 2011-Ohio-2271, ¶ 12, the appellant argued the trial court
No. 16AP-560 12
had failed to advise him of the privilege against compulsory self-incrimination when it
informed him that, by entering a guilty plea, he was waiving the "right to remain silent."
The appellant in Truitt argued on appeal "that the trial court merely explained to
[appellant] that he was giving up the right to remain silent and did not adequately explain
to [appellant] that he could not be compelled by the state to testify on his own behalf."
(Emphasis sic.) Id. at ¶ 15. In rejecting appellant's argument, this court held that "[t]he
plain meaning of the trial court's words suggest that appellant had the right to say
absolutely nothing at trial, if he so desired." Id. at ¶ 21. This court also noted that "the
trial court inquired whether appellant had any questions regarding the colloquy, and
appellant answered 'no, sir.' " Id. Based on the record presented, this court concluded the
trial court "explained waiver of the privilege against self-incrimination in a reasonably
intelligent manner and in strict compliance with Crim.R. 11(C)(2)(c)." Id.
{¶ 37} In State v. Allen, 10th Dist. No. 11AP-640, 2012-Ohio-2986, the appellant
argued the trial court failed to strictly comply with Crim.R. 11(C)(2)(c) in explaining the
constitutional privilege against compulsory self-incrimination. Under the facts of Allen,
the trial court, analogous to the facts in Truitt, had advised the appellant that his rights
included "the right to remain silent." Id. at ¶ 17. In Allen, this court relied on Truitt in
holding the trial court's advisement of appellant's right to remain silent "intuitively means
that, if appellant chose to remain silent, appellant would opt to engage his privilege
against self-incrimination and not testify against himself." Allen at ¶ 18. Thus, this court
concluded that "the trial court explained appellant's privilege against compulsory self-
incrimination in a reasonably intelligible manner." Id.
{¶ 38} We note that federal courts have observed that "[t]he words 'compelled' and
'self-incrimination' need not be ritualistically invoked." United States v. Loutos, 284
F. Supp. 2d 942, 955 (N.D.Ill.2003). In Loutos, the defendant argued that he was "not
advised of 'the right against compelled self-incrimination.' " Id. Under the facts of that
case, the defendant "responded affirmatively to the questions: 'Do you understand that
you would have a right to testify if you wished to do so? However, if you wish to remain
silent, your silence could not be used against you?' " Id. at 954. The court in Loutos
rejected the defendant's Fed.Crim.R. 11 challenge, holding that "[b]eing able to remain
silent and not have it used against the defendant is the right against compelled self-
incrimination." Id. at 955.
No. 16AP-560 13
{¶ 39} In the present case, in addition to the plea colloquy cited above, appellant
also signed a guilty plea form delineating the rights he was waiving. While the written
plea form is not a substitute for the trial court's requirement under Crim.R. 11(C), the
Supreme Court of Ohio has held 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." Barker at ¶ 24. Thus, "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." Id. at ¶ 25.
{¶ 40} In the present case, appellant signed the guilty plea form which, as noted by
the state, included an explanation that, by pleading guilty, he was waiving a number of
constitutional rights, including "the right to have a trial by jury, * * * at which I cannot be
compelled to testify against myself." Appellant acknowledged before the trial court that,
prior to signing the guilty plea form, he had reviewed it with his counsel, and his counsel
explained the contents of the document and answered any questions he had.
{¶ 41} As to the Crim.R. 11 plea colloquy, the record indicates the trial court
engaged in a meaningful dialogue with appellant, and we conclude the court explained his
constitutional rights, including the privilege against self-incrimination, in a reasonably
intelligible manner. Accordingly, we find the trial court complied with the requirements
of Crim.R. 11(C)(2)(c) in accepting the plea.
{¶ 42} Appellant's second assignment of error is not well-taken and is overruled.
{¶ 43} Based on the foregoing, appellant's two assignments are overruled, and the
judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
SADLER and HORTON, JJ., concur.
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