This case is concerned with the vexing problems faced by trial courts as to the correct procedure to be followed in accepting guilty pleas in criminal cases where a defendant has withdrawn his plea of not guilty and enters a plea of guilty.
This apparently simple procedure becomes somewhat complicated when trial courts and defense counsel do not scrupulously adhere to the mandates of the United States Constitution and Criminal Rule 11 regarding the rights of the defendant and the procedure to be followed at the time the plea is taken.
Prior to the adoption of the new Criminal Rules on July 1, 1973, the leading Ohio case involving the acceptance of guilty pleas was State v. Piacella, decided July 7, 1971, and reported in 27 Ohio St. 2d 92.
The Supreme Court of Ohio held that "where the record affirmatively discloses that: (1) defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and, (5) defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntary made."
On the appellate level, and also prior to the adoption of *Page 95 the new Criminal Rules, this Court decided State v. Griffey (March 30, 1972), 29 Ohio App. 2d 246.
In that case, after the defendant entered a plea of guilty and was sentenced, he filed an appeal in which he contended that fundamental due process was denied him at the time his plea of guilty was accepted in that the trial court failed to make a full determination in regard to his understanding of the nature of the charge against him and the consequences of such a plea.
The prosecution contended that the plea was knowingly, voluntarily and intentionally made, that the plea was not the result of coercion, deception or intimidation, that defense counsel was present at the time of the plea and that he advised the defendant of the circumstances surrounding the indictment, that the defendant understood the nature of the charge against him and that he was motivated either by a desire to seek a lesser penalty or the fear of the consequences of a jury trial.
We reversed the judgment of the trial court in Griffey and concluded that the defendant's plea of guilty was not knowingly, intentionally and voluntarily made and that the defendant did not understand the nature of the charge against him and the full consequences of his entering a plea of guilty.
In that case we also discussed the general nature of a plea of guilty in a criminal case and stated that "acceptance of a plea of guilty by the trial court should be based on the substance and not form. Many times guilty pleas are accepted by the trial judge merely going through motions and not making a determination that the defendant's plea was voluntarily made. Acceptance of a plea should be based on reality and not be a mere ritual. Kennedy v. United States (6th Cir. 1968),397 F.2d 16. Because of the serious nature of a plea of guilty it is incumbent upon the court to take the necessary time to inform a defendant of his rights and determine whether the defendant has a complete understanding of the action he is taking. * * * A guilty plea is more than a confession which admits that the accused did various acts. It is itself a conviction and nothing remains but to give judgment and determine punishment. *Page 96 Boykin v. Alabama (1969), 395 U.S. 238; Machibroda v. UnitedStates (1962), 368 U.S. 487."
A defendant in a criminal case is guaranteed certain constitutional rights which he may invoke or choose to waive and which are contained in the Fifth and Sixth Amendments of the United States Constitution. These rights include the privilege against self-incrimination, the right to trial by jury, the right to assistance of counsel, the right to confront witnesses against him, the right to be informed of the nature and cause of the accusation, and the right to compulsory process for obtaining witnesses in his favor.
An accused's constitutional rights apply whether he is tried or enters a plea of guilty. When a defendant withdraws a plea of not guilty and/or enters a plea of guilty he waives the foregoing constitutional rights.
For a waiver of constitutional rights to be valid under the due process clause there must be an intentional relinquishment or abandonment of a known right or privilege. The waiver must be voluntarily, intelligently and knowingly made and the defendant must understand the nature of the charges against him and the consequences of his plea of guilty. Otherwise, it is in violation of due process and is therefore void. The court has a duty to advise the defendant of his constitutional rights and must make sure that he waives his constitutional rights before it accepts the plea of guilty.
In Griffey we also made some suggestions concerning the questions the trial court should ask the defendant before accepting a guilty plea. These suggested questions substantially conform to Criminal Rule 11, which at that time had not yet been adopted.
Subsequently, the Ohio Rules of Criminal Procedure were adopted effective July 1, 1973, and these Rules contain Criminal Rule 11.1 *Page 97
The state filed a motion for leave to appeal from the Court of Appeals in Griffey, and the appeal was allowed, and the Supreme Court reversed our decision in State v. Griffey, decided on July 3, 1973, and reported in 35 Ohio St. 2d 101.
In reversing Griffey the Supreme Court reaffirmed its decision in State v. Piacella, supra, and stated that the trial judge in accepting the plea of guilty did not violate the defendant's constitutional rights.
However, Justice Corrigan stated on page 111 that *Page 98 "the Court of Appeals must be reversed, but, in so doing, we are of the mind that a salutary purpose will be served by charging the trial judges of Ohio that, in connection with the acceptance of a plea of guilty to a felony, Rule 11 of the Ohio Rules of Criminal Procedure, effective July 1, 1973, must be scrupulously adhered to, and, in addition, the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (Approved Draft, 1968) should serve as a guide."
This interpretation of Criminal Rule 11 of the Ohio Rules of Criminal Procedure is consistent with McCarthy v. United States (1969), 394 U.S. 459, where the United States Supreme Court interpreted Rule 11 of the Federal Rules of Criminal Procedure and concluded that prejudice inheres in a failure to comply with Rule 11, for noncompliance deprives the defendant of the Rule's procedural safeguards that are designed to facilitate a more accurate determination of the voluntariness of his plea. The Supreme Court said much the same thing that was said by Justice Corrigan in Griffey when it commented that if the District Court had scrupulously complied with Rule 11 there would have been no need to speculate concerning the defendant's understanding of the nature of the charges and the consequences of his plea and whether he made it voluntarily or not.
We will now turn our attention to the issues in the present case.
Defendant William A. Buchanan was indicted by the Cuyahoga County Grand Jury at its January Term, 1973, for two counts of armed robbery in violation of R. C. 2901.13. At his arraignment the defendant plead not guilty. He was tried and a jury found him not guilty as charged in the first count of the indictment. The jury was not able to reach a verdict as to the second count. Subsequently, the defendant changed his plea of not guilty as to the second count of the amended indictment and expressed his desire to enter a plea of guilty to the lesser and included offense of felonious assault. On recommendation of the prosecutor the guilty plea was accepted. *Page 99
The defendant has filed an appeal in this matter and for his assignment of error he alleges that he was not fully questioned concerning his plea of guilty to felonious assault, R. C.2903.11(A) as required by Rule 11, Ohio Rules of Criminal Procedure.
We have carefully reviewed the transcript of proceedings taken at the time the defendant entered his guilty plea, and it is noted that the trial court complied with all of the provisions of Criminal Rule 11, except Criminal Rule 11(C) (2)(c), when it did not inform the defendant and determine that he understood before entering his plea that the state must prove him guilty beyond a reasonable doubt at a trial at which he could not be compelled to testify against himself. Thus both constitutional and Criminal Rule 11(C)(2) (c) requirements were not satisfied.2
We are mindful of Justice Corrigan's admonition that before a guilty plea is accepted by the trial court the provisions of Criminal Rule 11, of the Ohio Rules of Criminal Procedure, must be scrupulously adhered to. See State v. Griffey, supra, at page 111; See also, State v. Scott (1974), 40 Ohio App. 2d 139.
Inasmuch as the provisions of Criminal Rule 11 were not scrupulously adhered to, the trial court did not enter a valid plea of guilty. The defendant appellant's assignment of error is well taken. The plea of guilty is vacated and the judgment of the trial court is reversed and this case is remanded for further proceedings according to law.
DAY, J., concurs.
SILBERT, C. J., dissents.
1 "Rule 11. Pleas, Rights Upon Plea
(A) Pleas. A defendant may plead not guilty, not guilty by reason of insanity, guilty or, with the consent of the court, no contest. * * *
(B) Effect of guilty or no contest pleas. With reference to the offense or offenses to which the plea is entered:
(1) The plea of guilty is a complete admission of the defendant's guilt. * * *
(3) When a plea of guilty or no contest is accepted pursuant to this rule, the court shall, except as provided in subsections (C)(3) and (4), proceed with sentencing under Rule 32.
(C) Pleas of guilty and no contest in felony cases.
(1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right.
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and:
(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation.
(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence.
(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witness in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. * * *
(F) Negotiated plea in felony cases. When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court. * * *"
2 See In re Winship (1970), 397 U.S. 358, which held that the requirement that the state must prove a defendant guilty beyond a reasonable doubt is a requirement of the due process clause of the United States Constitution.