State v. Higgs , 123 Ohio App. 3d 400 ( 1997 )

I respectfully disagree with the majority's analysis of three issues.

First, I disagree that the requirement in Crim.R. 11 (C)(2)(c) that the trial court inform the accused that the state must prove the charge beyond a reasonable doubt is mandatory in the same sense as are the four constitutional rights set forth in State v.Ballard (1981), 66 Ohio St.2d 473, 20 O.O.3d 397, 423 N.E.2d 115, so that the failure to relate this to the accused necessitates reversal.

Most Ohio courts that have dealt with this question have concluded that informing the accused of the state's burden of proof is not essential, because the Ballard court failed to mention it.¹ I find the reasoning sound. The Ballard court has clearly stated that courts are required to recite only those four rights — the privilege against self incrimination, the right to a jury trial, the right to confront his accusers, and the right to compulsory process — and no others. Until the Ohio Supreme Court clearly says otherwise, I choose not to add more requirements to that list.

Additionally, even if the tenor of the Ballard opinion did not impliedly exclude other rights not expressly set forth as mandatory, other reasoning therein militates against finding the Crim.R. 11 directive regarding the state's burden of proof to be mandatory. The Supreme Court in Boykin v. Alabama (1969),395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, mentioned only three rights which an appellate court cannot presume to have been waived from a silent record: (1) the privilege against self-incrimination, (2) the right to a trial by jury, and (3) the right to confront one's accusers. The Ballard court stated that although the Boykin court did not mention the right of a defendant to compulsory process in order to call witnesses to testify on his behalf, this right is expressly guaranteed by the Sixth Amendment to the United States Constitution, and, like those rights mentioned inBoykin, is a trial right which the defendant waives by pleading guilty. 66 Ohio St.2d at 477, 20 O.O.3d at 399,423 N.E.2d at 118, fn. 4. The selection criteria appear to be that only rights that are expressly stated in the federal Constitution must be recited to defendants. Nowhere in the Constitution is the state's burden of proof expressly stated. That standard is only inferred from the Due Process Clause. Thus, it would appear the state's burden of proof does not qualify as a right of such significance that guilty pleas cannot be affirmed without the accused's being informed of it.

Furthermore, adding another right in addition to the four mandatory Ballard rights is unnecessary in light of the overall goal of an appellate court to ascertain whether, under thetotality of the circumstances, a plea was knowingly, intelligently and voluntarily made. The point of Boykin was that the trial court did not say anything to the defendant when he entered his pleas, and the defendant asked no questions of the court. Since it was impossible to determine if the pleas wereknowingly made on a record where the accused was informed of virtually none of the rights he was waiving, the Supreme Court reversed the convictions and vacated the pleas.

The situation is completely different where the record shows that the accused was given a great deal more information than the defendant in Boykin. Where a criminal defendant in Ohio is told of his four Ballard rights, not only is he informed that he has the right to a trial, but he is told that there would be a number of procedural safeguards at that trial to protect him from governmental overreaching. A jury would be seated to determine his guilt, rather than a judge. He would have the right to confront his accusers and to present the testimony of witnesses on his own behalf, by compulsory process, if necessary, and he would not be required to testify against himself.

If, upon being so informed, the defendant knowingly gives up the right to such a trial, the waiver logically and necessarily extends to the procedural safeguards that the court explicitly mentioned, which are incidental to the trial. Likewise, the waiver of the trial and the explicitly stated Ballard rights logically and necessarily extends to numerous other procedural safeguards that are not specifically mentioned but are also incident to the trial. See United States v. Green (C.A.5, 1989),882 F.2d 999, 1007. United States v. Guichard (C.A.5, 1986),779 F.2d 1139, 1142. The state's burden of proof is merely one such procedural safeguard.

Thus, telling the accused about the state's burden of proof inaddition to the four Ballard rights is not absolutely necessary to determine that the defendant subjectively understood that he was waiving all incidental procedural safeguards when he decided to forgo the entire trial. If this piece of information is not critical to appellate review, then we should not lay down a bright-line rule invalidating an otherwise acceptable plea merely because the trial court neglected to mention the burden of proof in addition to the Ballard rights.

Instead, such an omission should be analyzed under the substantial-compliance standard of State v. Stewart (1977),51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163. A plea entered without this information should still be valid if the trial court recited the Ballard rights and the reviewing court can ascertain from the totality of the circumstances that the defendant knew what he was doing when he pled. Of course, the defendant could prove some special prejudice, as in a case where he mistakenly thought the state only had to prove the charge by a preponderance of the evidence, and would have gone to trial if he had known the state's burden of proof was so heavy.

Second, I disagree with the assertion that the trial judge failed to adequately inform Higgs of the maximum penalty involved. Admittedly, the judge misstated the maximum penalty on the robbery charged, coupled with the firearm specification, when he said the total sentence could be "eleven to fifteen years." He meant to say "eighteen years." But earlier in that same breath, the judge stated:

"I can impose three, four, five, six, seven, or eight years minimum to fifteen years on the principal offense and in additionthereto prior and consecutive thereto a term of three years ofactual incarceration * * *." (Emphasis added.)

In the second paragraph of the syllabus of Ballard, supra, it is held that a trial court need only explain the Crim.R. 11 information "in a manner reasonably intelligible to the defendant." In United States v. Musa (C.A.7, 1991),946 F.2d 1297, the defendant claimed that the district court judge did not adequately explain the nature of the penalty involved under Fed.Crim.R. 11 because he misstated the statutory minimum sentence to be "three years, which would be sixty months" rather than five years. Id. at 1306. The court held that the defendant, being a senior in college, could readily do the arithmetic necessary to determine that sixty months equals five years. Id. at 1306.

In this case, the trial judge adequately informed Higgs of the maximum term in a reasonably intelligible manner when he gave the correct formula by which it could be easily calculated. I presume Higgs could add three to fifteen and thereby discover on his own that his maximum sentence was indeed eighteen years.

Third, I do not agree that it is necessary to address the second assignment of error. Error was shown in the first assignment because the trial court violated its duty under State v. Swift (1993), 86 Ohio App.3d 407, 621 N.E.2d 513, to clear up the confusion regarding the elements of robbery when Higgs stated that he did not understand what the court had said. For this reason, the conviction on the underlying robbery charge must be reversed. Id. Since a firearm specification is a sentencing enhancer and not an independent crime, State v. Loines (1984),20 Ohio App.3d 69, 72-73, 20 OBR 88, 91-93, 484 N.E.2d 727, 731-732, a valid conviction on the underlying charge is a necessary prerequisite to the imposition of a term of actual incarceration under former R.C. 2929.71, State v. Tyson (1984), 19 Ohio App.3d 90,93, 19 OBR 175, 177-178, 482 N.E.2d 1327, 1329-1330. Reversal of the underlying conviction necessarily invalidates the conviction on the specification. See id. Also, Higgs entered only one plea, whereas former R.C. 2929.71 (A) requires a separate plea to the firearm specification. The second assignment of error is moot because our disposition of the first assignment of error also invalidates the sentence imposed on the specification; therefore, we should not consider it. App.R. 12 (A)(1)(c); 1992 Staff Note to App.R. 12 (A).

These differences excepted, I concur in the rest of the opinion and in the judgment to reverse and remand this case for further proceedings.

¹ State v. Scott (1996), 113 Ohio App.3d 401, 680 N.E.2d 1297;State v. Binion (Apr. 18, 1996), Cuyahoga App. No. 69336, unreported, 1996 WL 191757; State v. Hines (May 23, 1995), Franklin App. No. 94APA10-1428, unreported, 1995 WL 318742; State v. McGhee (Apr. 21, 1994), Cuyahoga App. Nos. 65214, 65215, and 65216, unreported, 1994 WL 144496; State v. McDowell (Sept. 30, 1993), Erie App. No. E-92-78, unreported, 1993 WL 381576; State v. Agresti (May 27, 1993), Cuyahoga App. No. 64174, unreported, 1993 WL 180222; State v. Teter (Sept. 5, 1990), Wayne App. No. 2543, unreported, 1990 WL 129246. Ignoring the weight of this authority, the majority relies on the dissenting opinions in Teter and Scott.