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Portage County judge failed to advise defendant of jury trial right

TRACEY BLAIR
Legal News Reporter

Published: January 22, 2020

A Portage County trial court accepted a guilty plea in a bad check case without telling the defendant he had the right to a jury trial, the 11th District Court ruled recently.
John C. Thompson appealed his convictions after pleading guilty to passing bad checks, misuse of credit cards and theft.
Thompson was sentenced to a total of 10 years in prison and ordered to pay more than $512,000 in restitution.
The appellate court reversed and remanded the convictions.
On Feb. 9, 2017, Thompson pled guilty to one count of passing bad checks. In a separate case, he pled guilty to four counts of theft, nine counts of grand theft, one count of theft from a person in a protected class, one count of grand theft and seven counts of theft from a person in a protected class.
The trial court adopted the parties’ joint-sentencing recommendation. A one-year term for passing bad checks, a 36-month term for felony-three grand theft, and two counts of felony-three theft from a person in a protected class were ordered to be served consecutively to one another and the remaining terms were ordered to be served concurrently.
Thompson argued the trial court erred in failing to fully advise him, during his plea colloquy, that he was waiving his right to a jury trial. As a result, he concludes, his plea of guilty is invalid because the trial court did not ensure it was entered knowingly, intelligently, and voluntarily.
Eleventh District Judge Cynthia Westcott Rice acknowledged that Thompson was advised he was giving up his rights to trial by pleading guilty.
“The trial court, however, neither advised appellant had the right to a jury trial nor expressly alluded that a jury would be the arbiter of his guilt should appellant wish to exercise such a right,” Rice said in her majority opinion. “In State v. Ralston (2018-Ohio-4946) accord State v. Antoine (2019-Ohio- 414), this court concluded such an omission renders a guilty plea invalid.”
Rice added, “The right to a trial ensures fundamental due process in a criminal prosecution. A court could hold a trial without a jury and still comport with due process. In Ohio, however, the trial judge is required to advise a defendant that he or she is waiving not simply one’s due process right to a trial, but also his or her additional right to have the case tried to a jury.”
In Ralston, the 11th District concluded that there must be some actual indication the trial court orally mentioned a jury would be involved were the matter tried under the plain language of Ohio’s criminal rules.
Thompson’s written plea of guilty states: “I understand these rights and it is my intention to waive them: (a) My right to a jury trial.” However, Rice said the trial court cannot rely solely upon the written plea because it is an outside source.
Appellate Judge Mary Jane Trapp concurred.
The state argued the trial court’s omission merely rendered the trial court’s advisement ambiguous, and that the panel was permitted to consult the outside source to resolve the matter. Eleventh District Judge Matt Lynch agreed with the state in his dissent.
Any confusion that Thompson may have had as to whether he was waiving a jury trial or bench trial in his case would have been resolved by the written plea agreements he signed, Lynch wrote.
“The plea colloquy in this case was inadequate, and the association of `jury’ with ‘trial’ does not cure the inadequacy. What it does do, under the authority of (State v.) Barker (2011-Ohio-4130) is allow this court to rely upon the written plea agreements to cure the inadequacy,” Lynch stated. “In all other respects, the trial court in the present case fully complied with all the mandates of Criminal Rule 11. Rather than concede that there has not been a complete failure to advise Thompson of his trial rights, the majority would reverse the pleas for the omission of a single word during the plea colloquy.”
The case is cited State v. Thompson, 2019-Ohio-5407.


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