February 22, 2012
Explanation of a Plea

by Justice Paul E. Pfeifer

In January of 2009, a man named Christopher Barker was indicted on five counts of unlawful sexual conduct with a minor, all third-degree felonies. Barker initially entered a plea of not guilty, but later withdrew that and entered a plea of no contest on the first three counts. The other two were subsequently dropped.

At his plea hearing, Barker stated that he was 28 years old and could read, write, and understand English. The court explained the possible prison term and fine he was facing, and that being classified as a Tier II sex offender meant that he would be required to register with local officials and report periodically for years after his release from prison.

In addition, the trial judge made the following statement: “I do have to ask you, do you understand when you’re entering a plea you’re giving up your right to a jury or bench trial, also giving up your right to call witnesses to speak on your behalf or question witnesses that are speaking against you. Do you understand that?” Barker replied, “Yes, Your Honor.”

Barker’s signed no-contest plea stated: “I understand by entering this plea I give up my right to a jury trial or court trial, where I could see and have my attorney question witnesses against me, and where I could use the power of the court to call witnesses to testify for me.”

Barker affirmed that he’d reviewed the plea with his attorney and said he had no further questions. Satisfied that Barker had been apprised of his constitutional rights and had made a knowing, intelligent, and voluntary waiver of his rights, the court accepted the plea and found him guilty.

But the case didn’t end there. Barker filed an appeal, arguing that the entry of his no-contest plea was not voluntary, intelligent, and knowing because the trial judge had failed to fully comply with the requirements of the Criminal Rules – specifically, Criminal Rule 11 – which govern the trial process.

In 1973, Criminal Rule 11 was adopted to give detailed instructions to trial courts on the procedures to follow before accepting pleas of guilty or no contest. That rule requires a trial judge to determine whether the defendant is fully informed of his rights and understands the consequences of his guilty plea.

The rule states that the judge must inform the defendant – and be certain he understands – that by entering the guilty or no contest plea, the “defendant is waiving the rights to jury trial, to confront witnesses against him…, 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…”

The court of appeals agreed with Barker’s argument and concluded that the trial court’s warning to Barker – that by entering a plea he was giving up the “right to call witnesses to speak” on his behalf – was insufficient to satisfy the constitutional mandate to compulsory process.

After the court of appeals reversed the judgment of the trial court, Barker’s case came before us – the Ohio Supreme Court – for a final review.

Our court has held that the preferred method of informing a criminal defendant of his constitutional rights during the plea process is to use the language contained in Criminal Rule 11. But a trial court’s failure to literally recite the rule word-for-word doesn’t invalidate a plea agreement if the record demonstrates that the trial court explained the constitutional right “in a manner reasonably intelligible to that defendant.”

In this case, the trial court described Barker’s constitutional right to compulsory process as the “right to call witnesses to speak on your behalf.” The court of appeals concluded that although a trial court does not necessarily have to use the exact term “compulsory process” during the Criminal Rule 11 instructions, “it must use some equivalent term such as the defendant has the ‘power to force,’ ‘subpoena,’ use the ‘power of the court to force,’ or ‘compel’ a witness to appear and testify on a defendant’s behalf.”

The court of appeals determined that the instructions used by the trial court in Barker’s case – that Barker had the ability “to call witnesses” – simply does not satisfy the constitutional mandate.

We disagreed. According to legal and standard dictionaries, the phrase “to call” commonly means “to summon.” As Justice Evelyn Lundberg Stratton wrote in the majority opinion, “Using ‘call’ to mean ‘to compel someone’s appearance’ is a commonly understood term in everyday parlance.

“For example, citizens may be ‘called’ for jury duty. Members of the military reserves may be ‘called up’ for active duty. Professionals may be ‘on call’ with respect to their jobs. The word ‘call’ in everyday usage clearly conveys the idea that one is required to appear or to perform.”

Indeed, Justice Lundberg Stratton has written on this subject before, stating that she believes the trial court’s words in a similar case “conveyed an even clearer message than does a recitation of the right to ‘have compulsory process for obtaining witnesses.’

“The use of common, everyday words, including ‘call,’ instead of a rote recitation of legal terminology, can assist the defendant in understanding the rights forfeited by entry of a plea. Thus, we hold that the language employed by the trial court in informing” Barker that he had the “right to call witnesses to speak on his behalf” was a reasonably intelligible explanation to Barker of his constitutional right to compulsory process and allowed him to make a voluntary and intelligent decision whether to plea no contest.

Consequently, we concluded that a trial court complies with Criminal Rule 11 when its explanation of the constitutional right to compulsory process of witnesses is described to the defendant during the plea instructions discussion as the “right to call witnesses to speak on your behalf.” We thus reversed the judgment of the court of appeals – by a seven-to-zero vote – and reinstated the judgment of the trial court.

EDITOR'S NOTE: The case referred to is State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130. Case No. 2010-1448. Decided August 24, 2011. Majority opinion written by Justice Evelyn Lundberg Stratton.