[Cite as State v. Bell,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24356

vs. : T.C. CASE NO. 10CR513

SHAQUANA BELL : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of September, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros. Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee

William T. Daly, Atty. Reg. No. 0069300, 1250 W. Dorothy Lane, Suite 105, Kettering, OH 45409 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} Defendant, Shaquana Bell, appeals from her conviction

and sentence for aggravated burglary and intimidation of a crime

victim.

{¶ 2} Defendant was indicted on one count of aggravated 2

burglary-deadly weapon, R.C. 2911.11(A)(2), with a three year

firearm specification, R.C. 2941.145, one count of felonious

assault-deadly weapon, R.C. 2903.11(A)(2), with a three year

firearm specification, R.C. 2941.145, and one count of intimidation

of a crime victim by force or threat, R.C. 2921.04(B). Defendant

entered pleas of guilty to the aggravated burglary and intimidation

of a crime victim charges. In exchange, the State dismissed the

firearm specification attached to the aggravated burglary charge

as well as the felonious assault charge and its firearm

specification. The trial court sentenced Defendant to consecutive

prison terms of three years for aggravated burglary and one year

for intimidation of a crime victim, for an aggregate sentence

of four years.

{¶ 3} Defendant timely appealed to this court from her

conviction and sentence.

FIRST ASSIGNMENT OF ERROR

{¶ 4} “THE TRIAL COURT FAILED TO MEET THE REQUIREMENTS OF

CRIMINAL RULE 11(C)(2) AND FAILED TO ADVISE THE DEFENDANT, DURING

THE RULE 11 DIALOGUE, OF HER RIGHT TO WAIVE A JURY TRIAL, PRIOR

TO ACCEPTING DEFENDANT’S GUILTY PLEA.”

SECOND ASSIGNMENT OF ERROR

{¶ 5} “THE TRIAL COURT DID NOT ADVISE THE DEFENDANT THAT HER

PLEA OF GUILTY WAS A COMPLETE ADMISSION OF GUILT.” 3

{¶ 6} In these related assignments of error, Defendant argues

that her guilty pleas were not entered knowingly, intelligently

and voluntarily because, in accepting her pleas, the trial court

failed to comply with the requirements in Crim.R. 11(C)(2) in two

respects: (1) the trial court failed to advise Defendant that she

could waive her right to a jury trial and instead be tried by the

court, and that her guilty pleas likewise waived her right to a

bench trial; (2) the trial court failed to advise Defendant about

the effect of her guilty pleas: that they were a complete admission

of her guilt.

{¶ 7} To be constitutionally valid and comport with due

process, a guilty plea must be entered knowingly, intelligently,

and voluntarily. Boykin v. Alabama (1969),

,

,

. Compliance with Crim.R. 11(C)(2) in

accepting guilty or no contest pleas portrays those qualities.

State v. Fisher, Montgomery App. No. 23992,

, at ¶6.

{¶ 8} Crim. R. 11(C)(2) provides:

{¶ 9} “In felony cases the court may refuse to accept a plea

of guilty or a plea of no contest, and shall not accept a plea

of guilty or no contest without first addressing the defendant

personally and doing all of the following:

{¶ 10} “(a) Determining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and 4

of the maximum penalty involved, and if applicable, that the

defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.

{¶ 11} “(b) Informing the defendant of and determining that

the defendant understands the effect of the plea of guilty or no

contest, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.

{¶ 12} “(c) Informing the defendant and 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.”

{¶ 13} In State v. Russell, Clark App. No. 10CA54,

, we stated:

{¶ 14} “¶7. The Supreme Court of Ohio has urged trial courts

to literally comply with Crim.R. 11. Clark at ¶ 29. The trial court

must strictly comply with Crim.R. 11(C)(2)(c), as it pertains to

the waiver of constitutional rights. Clark at ¶ 31. The failure

to adequately inform a defendant of his constitutional rights would

invalidate a guilty plea under a presumption that it was entered

involuntarily and unknowingly. State v. Griggs,

5

85, 2004–Ohio–4415, ¶ 12.

{¶ 15} “¶8. However, because Crim.R. 11(C)(2)(a) and (b)

involve non-constitutional rights, the trial court need only

substantially comply with those requirements. State v. Nero (1990),

; Greene at ¶ 9. Substantial compliance means

that, under the totality of the circumstances, the defendant

subjectively understands the implications of his plea and the

rights he is waiving. State v. Miller, Clark App. No. 08 CA 90,

2010–Ohio–4760, ¶ 8, citing State v. Veney,

,

2008–Ohio–5200, ¶ 15. A defendant who challenges his guilty plea

on the ground that the trial court did not substantially comply

with Crim.R. 11(C)(2)(a) and (b) must show a prejudicial effect,

which requires the defendant to show that the plea would otherwise

not have been entered.

.”

{¶ 16} The record of the plea colloquy in this case demonstrates

that the trial court strictly complied with Crim.R. 11(C)(2)(c)

in advising Defendant of the various constitutional rights she

would be giving up by entering pleas of guilty, including the right

to a jury trial. Furthermore, Defendant signed a written waiver

acknowledging that she understood that by pleading guilty she was

giving up her right to a jury trial. Defendant complains, however,

that the trial court did not inform her that she had the right

to both waive a jury trial and instead be tried before the court 6

pursuant to R.C. 2945.05, and that Defendant’s guilty pleas waived

that right to a bench trial.

{¶ 17} The right to trial by jury is guaranteed by the Sixth

Amendment to the Constitution of the United States. Prior to

accepting a guilty plea, the court must inform the defendant of

that right. State v. Ballard (1981),

. The right

to instead be tried by the court that R.C. 2945.05 confers is a

non-constitutional right. Crim.R. 11(C)(2) does not require the

trial court to advise a defendant that she has the right to be

tried by the court when she waives a jury trial. Neither is the

court then required to advise the defendant that her pleas of guilty

waive her right to a bench trial. Crim.R. 11(C)(2) only requires

that Defendant be advised, and the court to determine that she

understands, that her plea of guilty waives her right to a jury

trial, which the trial court did in this case.

{¶ 18} Defendant additionally complains that the trial court

failed to advise her of the effect of her guilty pleas, as required

by Crim.R. 11(C)(2)(b). During the plea, the trial court did not

advise Defendant or ask if she understood that her guilty plea

was a complete admission of her guilt. Crim.R.11(B)(1),

(C)(2)(b). Nevertheless, such an omission is not presumed to be

prejudicial under the facts in this case.

{¶ 19} In State v.

, this court stated: 7

{¶ 20} “[A] defendant who has entered a guilty plea without

asserting actual innocence is presumed to understand that, by

pleading guilty, he has completely admitted his guilt. Griggs,

supra. In such circumstances, the trial court's failure to inform

the defendant of the effect of his guilty plea, as required by

Crim.R. 11(C), is presumed not to be prejudicial. Id.; State v.

Thomas, Cuyahoga App. No. 94788, 2011–Ohio–214, ¶ 32.

{¶ 21} “{¶ 11} Russell has not claimed that he was innocent

of the charges. Moreover, Russell signed a plea form, in which

he stated that he understood that he was waiving his constitutional

rights and that ‘by pleading guilty I admit committing the offense

and will tell the Court the facts and circumstances of my guilt.

I know the judge may either sentence me today or refer my case

for a presentence report. * * *.’ Russell stated at the plea hearing

that he had reviewed, understood, and signed the plea form. The

court did not proceed directly with sentencing; instead, it

referred the matter for a presentence investigation. Under these

circumstances, Russell's plea was not rendered invalid by the

court's failure to orally inform him of the effect of his guilty

plea or that the court may proceed with judgment and sentencing.”

{¶ 22} The same is true in this case. Defendant never asserted

at the plea hearing that she was innocent of the charges. To the

contrary, the trial court asked Defendant: “Do you admit that you 8

caused or threatened to cause physical harm to the person in the

commission of this offense?” Defendant responded: “Yes.” It is

presumed that Defendant understood that by then pleading guilty

she has completely admitted her guilt. State v. Griggs,

,

. The substantial compliance standard

is satisfied. Defendant’s guilty pleas are not rendered invalid

by the trial court’s failure to also orally inform her of the effect

of her guilty pleas, which is presumed not to be prejudicial.

{¶ 23} Defendant’s first and second assignments of error are

overruled. The judgment of the trial court will be affirmed.

DONOVAN, J. And WAITE, J., concur.

(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)

Copies mailed to:

Johnna M. Shia, Esq. William T. Daly, Esq. Hon. Barbara P. Gorman