This case comes here on permissive appeal seeking relief from the consequences of a plea of guilty in 1964 in a first degree murder case. The "defendant" will *Page 254 be referred to hereafter as the "appellant" or the "defendant."
We affirm.
The assignment treated in the "Brief" travels on the theory that the appellant had ineffective counsel [cf. Powell v.Alabama, 287 U.S. 45, 53, 77 L. Ed. 158, 162 (1932)], on the trial of the issue of degree of offense. Mainly this argument rests on the notion that his two lawyers were not *Page 255 up to standard because they stipulated admission of a statement by him taken without the warnings Escobedo requires. It is argued that the focus of investigation was on the defendant at the time.3 It is also argued that the statement thus put into evidence contained admissions by the defendant practically foreclosing any chance for less than a first degree conviction on the issue of degree of culpability.
What is unique about the first claim of error is that it is assigned by one of the lawyers who engineered the stipulation — the same stipulation that is held up to this court as the example proving counsel's miscreance. It is not often that an ineffective counsel argument is advanced by a lawyer on the basis of a mea culpa.4
We are not impressed by the first assignment. It appears to us that the very considerable evidence available on the degree of culpability (cf. Tr. 90-91; 99-105; 113-120, 131) probably lead lawyers of the skill and experience involved here to put the statement of their client into evidence to get him whatever advantage could be acquired from candor. At best it was a ploy, at worst something akin to invited error. Either, in our view, shrives the action of counsel from any constitutional infirmity of advantage to their client. See Henry v. Mississippi (1965),379 U.S. 443, 451, 13 L. Ed. 2d 408, 415:
"* * * If either reason [strategy to discredit witness or to invite error] motivated the action of petitioner's counsel, and their plans backfired, counsel's deliberate choice of strategy would amount to a waiver binding on *Page 256 petitioner and would preclude him from a decision on the merits of his federal claim either in the state courts or here * * *." (Bracketed material supplied.)
R. C. 2945.06:
"* * * If the accused pleads guilty of murder in the first degree, a court composed of three judges shall examine the witnesses, determine the degree of crime, and pronounce sentence accordingly. In rendering judgment of conviction of an offense punishable by death upon plea of guilty, or after trial by the court without the intervention of a jury, the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury * * *."
R. C. 2945.74:
"* * * If the offense charged is murder and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime, and pronounce sentence accordingly."
However, as noted in footnote 2, it is only R. C. 2945.06 which is involved here.
In essence, the argument rests on the assertion that Ohio's statutory scheme for degree of culpability hearings on pleas of guilty to murder one affects the present defendant's constitutional protections in a manner which deprives him of rights which are at the very heart of due process.
It is argued that the plea of guilty followed by a hearing on degree of guilt is confusing, and so confused the lawyers and the judges in this case, that a fortiori, the defendant could not understand what he was doing. Such was the degree of the defendant's confusion, it is argued, *Page 257 that he could not have made a knowing, intelligent plea, Boykin v. Alabama (1969), 395 U.S. 238, 23 L. Ed. 2d 274. Indeed, it is asserted that this is a more compelling case for reversal than Boykin because in Boykin the court would not sustain a plea where intelligent knowledge in the defendant had to be supported on a silent record, while in the present case the record, far from silent, clearly exemplifies the defendant's lack of comprehension.5
Furthermore, appellant argues, all the consequences which flow from the plea were not understood by the appellant because "uncertain and undefined, if not unknown" (Supp. Brief, p. 7), and because there is no affirmative demonstration in the record that the defendant was in any way apprised of the possible import of the plea under the statute. Such consequences are said to include:
1. Waiver of the presumption of innocence;
2. Excusing the prosecution from the burden of proving its case beyond a reasonable doubt and substituting a lower standard of proof than is normal for a criminal case;
3. Consideration of the guilty plea by the three-judge court as evidence of guilt; and
4. Barring the defendant from challenging the sufficiency of the evidence in post trial proceedings.6
In fine, the contention is that the listed insufficiencies with respect to a knowledgeable plea have deprived the defendant of due process of law contrary to the Fourteenth Amendment to the United States Constitution.
Appellant suggests at page 3 of his Supplemental *Page 258 Brief that recent cases, e. g., Boykin v. Alabama (1969),395 U.S. 238, 23 L. Ed. 2d 274 and Brady v. United States (1970),397 U.S. 742, 25 L. Ed. 2d 747, indicate that the standards of Rule11, Federal Rules of Criminal Procedure, as amended, apply to the states. The essence of Rule 11 is:
"* * * The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea * * *. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea."
The same independent evidence brings down the presumption of innocence as effectively as any waiver could. And the same evidence makes it very difficult to argue persuasively that the proof did not meet the "beyond a reasonable doubt" standard. Moreover, this is the criterion the state would have to satisfy on the degree issue in the hearing under the statute.9
While it has been held that a defendant may not attack the sufficiency of the evidence on appeal after a plea of guilty,State v. Hertz (App. Franklin Cty., 1954), 135 N.E.2d 781, the statute now in issue obviously does not contemplate pleas to murder one except in the face of evidence heavily weighted toward guilt. As a practical matter such cases disposed of on pleas are not apt to excite appeals. More to the point, since the Hertz case did not involve a murder case, nor a degree hearing, it can hardly be authority for blocking an appeal from the decision after proceedings under R. C. 2945.06.
Of course, the plea, as such, would not bar any appropriate post-conviction remedy. However, it may well be that a sufficiency of the evidence claim would be closed off from post-conviction relief for other reasons, see State v. Perry (1967), 10 Ohio St.2d 175, not relevant to a plea.
We find the second assignment of error without merit. The judgment is affirmed.
Judgment affirmed.
SILBERT and KRENZLER, JJ., concur.
1 There was an abundance of record evidence chronicling the facts relevant to the shooting and defendant's condition and participation as well as the events preceding and including the climactic action in the case. See Tr. 90-91 (time spent awaiting the victim); Tr. 92, 93, 105 and cf. 195-196 (defendant's condition as it pertained to intoxication); Tr. 90-91, 99-105, 113-120, 131 (identity of the defendant as the person who did the killing); Tr. 145-148 (ballistic evidence).
2 See R. C. 2945.06; cf. R. C. 2945.74. Both statutes are reproduced in relevant part under IV in the text of the opinion. Actually, it is only Sec. 2945.06 which is germane to this case. R. C. 2945.74 simply shows another aspect of Ohio's statutory safeguards for defendants.
3 See Escobedo v. Illinois, supra. Escobedo was not decided until June 22, 1964. The statement in issue in this case was taken shortly after the arrest on March 16, 1964 (Tr. 52-62).Escobedo is not retroactive and the principle it announces applies only to "cases commenced after those decisions [Escobedo and Miranda v. Arizona, 384 U.S. 436,16 L. Ed. 2d 694 (1966)] were announced." Johnson v. New Jersey,384 U.S. 719, 733, 16 L. Ed. 2d 882, 892 (1966). "Cases" refers to trials, and this trial began on October 26, 1964, after the crucial date. Thus the question of admissibility is significant.
4 Co-counsel is since deceased.
5 Appellant points to his consistent denial of (1) matter germane to premediation and deliberation, elements explicit in first degree murder, and (2) the correctness of his alleged statements with respect to the time he decided to shoot his wife as well as his testimony in explanation of his refusal to sign the statement because of its error. All of this, appellant argues, contradicts the plea, indicating a lack of comprehension (p. 6, Appellant's Supplemental Brief).
6 The list of claimed consequences is a summary from page 7 of the appellant's Supplementary Brief. In oral argument the suggestion was also made that the plea waived the privilege against self-incrimination — another consequence not specifically called to the defendant's attention.
7 For additional consequences see Criminal Practice and Procedure, 15A Ohio Jurisprudence 2d, Section 200, page 406.
8 Such a balance of evidence is, of course, a factor in determining whether a constitutional error has been harmless beyond a reasonable doubt. Cf. Chapman v. California (1967),386 U.S. 18, 23, 17 L. Ed. 2d 705, 710; Harrington v.California (1969), 395 U.S. 250, 23 L. Ed. 2d 284. Some errors, such as lack of counsel, may be so egregious that no balancing of harm will be indulged, Chapman v. California, id.
9 Premeditation and deliberation is an element of the offense of murder one. And see Morehead v. State (1877), 34 Ohio St. 212,217, ". . . the state must prove the material elements of the crime beyond a reasonable doubt. . . ." *Page 262