Update: On April 14, 2020 the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“Where is it in the record that we can glean that the trial court determined that he (Miller) understood those rights?”
Judge Sadler, to the Assistant Prosecuting Attorney
“Don’t you think really in this case this defendant probably had a better understanding than someone who has a judge who just recites that colloquy? This judge seemed to make it understandable.”
Justice DeWine, to Defendant’s Counsel
On December 10, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Shawn M. Miller, 2018-0948. At issue in this case is whether an appellate court must use a substantial compliance standard or a strict compliance standard when reviewing whether a defendant understood that a guilty plea waives certain constitutional rights. Tenth District Court of Appeals Judge Lisa L. Sadler sat for Justice Stewart, who participated in the appellate decision in the case before she was elected to the high court.
Case Background
Shawn M. Miller was initially charged with four counts of attempted murder, five counts of aggravated arson, one count of arson, five counts of felonious assault, and one count of breaking and entering. Miller accepted a plea bargain where he pleaded guilty to one count of aggravated arson, one count of arson, and one count of felonious assault, and the state dropped the remaining charges.
At Miller’s plea hearing, the trial court informed Miller of his constitutional trial rights, but never expressly told him that by pleading guilty he was waiving those rights. The judge found that Miller’s plea was entered knowingly, voluntarily and intelligently, accepted the guilty plea, and sentenced Miller to eight years in prison. Miller appealed his convictions.
The Appeal
In a split decision written by Judge Eileen T. Gallagher, joined by Judge Kathleen Ann Keough, the Eighth District Court of Appeals held that the trial court committed reversible error by accepting Miller’s guilty plea without asking Miller whether he understood that his guilty plea waived the constitutional rights enumerated in Crim.R. 11(C)(2)(c).
The majority found that strict compliance with Crim.R. 11(C)(2)(c) is required to ensure that a defendant knowingly, intelligently, and voluntarily waived the constitutional rights enumerated in the rule. While the trial court adequately ensured that Miller understood what his constitutional rights were, the court failed to ensure that Miller understood that his guilty plea waived those rights. Because the trial court did not strictly comply with Crim.R. 11(C)(2)(c), the majority invalidated Miller’s plea and remanded the case.
Then-Judge Melody J. Stewart dissented. She would hold that the trial court adequately complied with Crim.R. 11(C)(2)(c) because a trial court is not required to use magic words to inform defendants that they are waiving their rights. In Miller’s case, the trial judge used language that she thought Miller would understand, which adequately complied with Crim.R. 11(C)(2)(c).
Read the oral argument preview of the case here.
Key Precedent
Crim.R. 11(C)(2)(c) (In felony cases, the court . . . shall not accept a plea of guilty . . . without first . . . 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.”)
State v. Ballard, 66 Ohio St.2d 473 (1981) (“[T]he best method of informing a defendant of his constitutional rights is to use the language contained in Crim. R. 11(C), stopping after each right and asking the defendant whether he understands the right and knows that he is waiving it by pleading guilty.”)
State v. Engle, 74 Ohio St.3d 525 (1996) (“When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.”)
State v. Veney, 120 Ohio St.3d 176 (2008) (“A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives (1) the right to a jury trial, (2) the right to confront one’s accusers, (3) the right to compulsory process to obtain witnesses, (4) the right to require the state to prove guilt beyond a reasonable doubt, and (5) the privilege against compulsory self-incrimination. When a trial court fails to strictly comply with this duty, the defendant’s plea is invalid. (Crim.R. 11(C)(2)(c), applied.”)(Syllabus)
State v. Strebler, 2009-Ohio-1200 (7th Dist.) (“A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally advise a defendant before accepting a felony plea that the plea waives certain constitutional rights.”)
State v. Ellis, 2015-Ohio-3438 (10th Dist.) (While strict compliance is required for the notification of constitutional rights, substantial compliance is permissible when determining whether a defendant understood that a guilty plea waived certain constitutional rights.)
State’s Proposition of Law Accepted for Review
A reviewing court applies a substantial compliance standard in determining whether criminal defendants understand they are waiving their constitutional trial rights when entering a plea in a felony case.
At Oral Argument
Arguing Counsel
Gregory Ochocki, Assistant Cuyahoga County Prosecutor, for Appellant State of Ohio
Patrick J. Milligan, Patrick J. Milligan Co., LPA, Lakewood, for Appellee Shawn M. Miller
State’s Argument
Since the adoption of the criminal rules in Ohio, this court has moved away from strict, literal compliance with Crim.R. 11(C) toward a determination of whether a defendant’s rights were explained to the defendant in a reasonably intelligible manner. Today, the state asks this court to continue in that direction and to hold that a reviewing court should apply a substantial compliance standard to determine whether criminal defendants understand that they are waiving their constitutional rights when they enter a guilty plea.
In this matter, Mr. Miller pleaded guilty to aggravated arson, arson, and felonious assault. Before accepting his plea, the trial court advised Mr. Miller of the rights he would be waiving. The court did not phrase the colloquy as a waiver. The court explained to Mr. Miller what would happen if he rejected the plea and decided to go to trial. The court did not use the word waiver. Based on that colloquy, where the trial court explained what rights Mr. Miller would have had he gone to trial, the trial court was satisfied that Mr. Miller understood those rights and that he was waiving them. But the appellate court found that while Mr. Miller was informed of his constitutional and non-constitutional rights, the trial court never expressly stated to him that by pleading guilty he waived those rights.
The state concedes it did not raise the issue of substantial compliance in the trial court. The state argued strict compliance in the trial court and argued that under the totality of the circumstances the plea did follow the dictates of Criminal Rule 11C. The appeals court addressed this sua sponte and recognized it its opinion that there is a conflict on this issue between the 7th and 10th districts. It is the state’s position that the Ellis decision from the 10th district is more consistent with this court’s holding in Veney. In Ellis, the 10th district said that in reviewing the totality of the circumstances, the court must determine whether the defendant understood the consequences of the waiver. And even the appellate court in this case acknowledged that common sense dictates that if you are entering into a plea agreement you are waiving your rights.
The trial court explained the rights Mr. Miller would have if he decided to reject the plea and go to trial. So, he was aware of those rights. He was aware that by entering the plea, he was waiving those rights. This is not a situation where the trial court missed one of the constitutional rights. That is why the state is asking for the substantial compliance test. The trial court has a duty under Crim. R.11(C)(2)(c) to inform the defendant of those rights and then to determine whether the defendant understands that he is waiving those rights. That’s what the trial court did in this case.
Miller’s Argument
The correct standard to apply in this case in the context of compliance with a felony plea is strict compliance. This standard was established in Veney, in which this court ruled that before accepting a guilty plea in a felony case, the trial court must inform the defendant of his constitutional rights and that the guilty plea waives his constitutional rights. When a trial court fails strictly to comply with this duty, the defendant’s plea is invalid.
The only approximation of informing Mr. Miller that he was giving up his rights was “as good as the plea bargains might sound to people, nobody is under an obligation to accept them. You’re welcome to stay with not guilty and go to trial instead, right Mr. Miler?” That statement is made in a hypothetical sense and it does not directly explain to the defendant exactly what he is giving up. Concededly, the trial court did go through each one of the constitutional rights, but did not follow this court’s recommendation set forth in Ballard, which was to stop after each right and ask, do you understand you are giving up that right? There is nothing in the record that shows the defendant understood he was giving up the rights. He wasn’t asked directly. What the state wants this court to do is to make an assumption. While there are no magic words here, and courts don’t have to use the word waiver, some approximation of waiver should be used. Giving up, foregoing, forfeiting, abandoning, are among many synonyms that could have been used but were not. It is too important to our system of justice to make inferences about constitutional rights.
From this record it is unclear what Mr. Miller understood. He understood that some pleas, no matter how good, do not have to be accepted. A standard of strict compliance should be applied so there is no guessing about what he understood. This court should not make an assumption about what Mr. Miller understood that he was waiving.
What Was On Their Minds
Forfeiture of Issue on Appeal
Did the state raise the substantial compliance issue below, asked Justice French? (the prosecutor conceded it had not) At no time did the state suggest to the trial court that it should be substantial compliance? If the court finds that issue has been forfeited, why would we address that issue if it wasn’t raised below?
Rote Recitation of Rule
Does the court have to use the word “waive” or some word like “forfeit” asked Justice Fischer? If those words don’t need to be said, what words should be used?
In reading the exchange, I think the trial court did a great job in putting it in layman’s terms to this defendant, commented Chief Justice O’Connor.
Substantial or Strict Compliance
Wasn’t the only argument by the state at the trial court level one of strict compliance, asked Justice French?
The Text of Criminal Rule 11C
Is the substantial/strict compliance requirement anywhere in the text of the rule, asked Justice DeWine? Isn’t that just judge-made law? Shouldn’t we just look at the text of the rules? Isn’t that the question, and not anything else, whether or not that rule was complied with?
The Plea Colloquy
At the plea colloquy, did the trial court inquire if both sides were satisfied that the court had complied with Criminal Rule 11, asked Justice Donnelly? What was the context of this plea colloquy—was it the morning of trial, or was it a plea hearing? (answer: change of plea). So can’t we infer from that, standing there with his lawyer, he’s been advised, presumably, he’s about to change his plea? All the constitutional rights were read? Had the judge said, do you understand you are waiving this right, would that have complied? Some members of our society might not understand the word “waiver,” For example, I used to say “do you understand you are giving up those rights,” he added.
Where is it in the record that we can glean that the trial court determined that Mr. Miller understood those rights, asked Judge Sadler? The judge did not ask, do you understand these rights and in accepting the plea the judge did not say I find that the defendant understands these rights. Is the court just to glean this from the colloquy itself? The court asked the defendant if he had any questions, so we do know that he wasn’t confused and that he had no questions about what he had been told, correct?
Didn’t the court go through all the constitutional rights, asked Justice Fischer? Has this court ever held it was required to stop after each right and ask, do you understand you are giving up that right?
“You’re welcome to stay with not guilty and go to trial instead.” That seems pretty clear, commented Justice DeWine. Didn’t the trial court determine that the defendant understood what he was giving up by the plea? He understood that he could go ahead and go to trial. He understood that by pleading he wasn’t going to trial. Did the defendant still think even after all this he was going to get a trial? Don’t we have to use common sense in what an ordinary person would understand in the situation? Was the defendant surprised when after the plea the judge didn’t go out and empanel a jury?
The defendant knew he was not getting a trial, noted Chief Justice O’Connor. He knew what his rights were, because after each one of them he said yes, I understand. They were put in lay terms. And yet we are to conclude he didn’t know what he was waiving? The judge didn’t miss any rights, did she?
Then-Judge Stewart’s Dissent in Appellate Decision
Is the state accepting of then-Judge Stewart’s dissent that there was strict compliance here, asked Justice Fischer? Would the state accept that as a ruling in this case? (yes indeed, said a seemingly relieved prosecutor). In that case we wouldn’t have to decide if it was strict or substantial compliance, Fischer noted.
How it Looks from the Bleachers
To Professor Emerita Bettman
The justices clearly want to find for the state here but are faced with an initial problem with the state’s proposition of law. The state conceded it never argued substantial compliance below, which is what it is proposing in its proposition of law, and the court just reminded everyone on December 17, 2019, in State v. Wintermeyer, Slip Opinion No. 2019-Ohio-5156, albeit in the context of a suppression hearing, that an argument not raised below by the state was forfeited on appeal.
One way around this is to find strict compliance in this colloquy, using a totality of the circumstances approach. Another way is somehow to explain away the forfeiture problem and accept the state’s proposition of law and find that test was met here.
The justices, particularly the Chief and Justices DeWine and Donnelly seemed strongly to feel that the trial court did an excellent job explaining Miller’s rights to him in language he could understand, and common sense dictated that he understood what he was waiving. Justice Fischer would clearly adopt then-Judge Stewart’s approach in her dissent in this case, that “perhaps it would have been better in this case for the trial judge to speak in terms of the rights that Miller would waive by pleading guilty rather than the rights that Miller would have if he elected to go trial. But these are two sides of the same coin.” This view could also carry the day and might finesse the strict/substantial compliance issue. Justice DeWine undoubtedly prefers the textual approach, noting that there is nothing in the text of Criminal Rule 11 itself which mandates that strict compliance applies to subsection (c) and that applying common sense showed that Miller understood what he was giving up by going to trial.
I felt bad for Mr. Milligan, who visibly grew increasingly dispirited as he kept insisting on strict compliance for the waiver of one’s constitutional rights and kept getting pummeled by the justices, nevertheless.
To Student Contributor Maria Ruwe
I think this is a certain win for the State. Miller’s lawyer invoked the policy argument that a court should not leave anything to assumption when laypersons are waiving their constitutional rights. However, the State’s argument of common sense carried the day. Essentially, the State argued that defendants who enter a guilty plea know that they will not receive a trial. And, one cannot exercise his or her constitutional trial rights if there is no trial. The court seemed unable to accept the possibility that Miller actually thought he was going to receive a trial. Heavily relying on the trial record, the court noted that the trial court had informed Miller about each constitutional right that he was entitled to exercise. By pleading not guilty, Miller understood that he would not be exercising those trial rights. The clincher was Judge Sadler’s point that Miller was not confused about anything because the trial court had explicitly asked Miller if he had any questions. Therefore, I think the court will decide that a substantial compliance standard is the correct standard of review.