I concur in the judgment of the majority only. In a misdemeanor case a waiver of the rights enumerated in R. C. 2937.02 must affirmatively appear in the record before a waiver of these rights can be presumed. The two prerequisites before a plea of guilty can be justified are (1) that defendant was given information about his rights and (2) that he waived the receipt of such information. As to the second point a waiver can never be presumed from a silent record. See Boykin v. Alabama (1969),395 U.S. 238; Carnley v. Cochran (1962), 369 U.S. 506; andJohnson v. Zerbst (1938), 304 U.S. 458. As to point one a silent record is used as a presumption in Ohio that the information was in fact given, however, as a matter of due process of law one cannot infer essential elements without proof and there can be no determination *Page 92 based upon the complete absence of proof. See Thompson v.Louisville (1960), 362 U.S. 199.
The "due process of law" phrase found in theFourteenth Amendment of the United States Constitution is equivalent in meaning to "due course of law" as found in Section 16, Article I of the Ohio Constitution. In re Appropriation of Easements (1957), 104 Ohio App. 243; In re Pollack (1962), 89 Ohio Law Abs. 112.
By passing R. C. 2937.02, which became effective in 1960, the Ohio Legislature has enumerated what information must be given to a defendant charged with a misdemeanor. It is noteworthy that Ohio gave these rights prior to the time that the Supreme Court of the United States, through selective incorporation, applied the Bill of Rights as a limitation upon the states. The citizens of the state of Ohio believe that the rights contained in R. C.2937.02 are fundamental and essential for the effective administration of criminal justice. Being fundamental, the rights contained in R. C. 2937.02 are not only statutory but constitutional guarantees under Ohio's due course of law. Thus to presume from a silent record that the court advised the defendant of his rights is a denial of due course of law.
As long as the states meet the minimum standards of the federal Bill of Rights which have been incorporated through theFourteenth Amendment and made applicable to the states, the several states of this Union may define their own standards of due process unencumbered by federal standards.
"Our holding, of course, does not affect the state's power to impose higher standards on searches and seizures than required by the federal Constitution if it chooses to do so." Cooper v.California (1967), 386 U.S. 58 at 62.
See also Sibron v. New York (1968), 392 U.S. 40; Ker v.California (1963), 374 U.S. 23. *Page 93