[Cite as State v. Harris , 2022

- Ohio

- 1021.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Plaintiff

- Appell ee ,

VS

.

DARRELL HARRIS , Defendant

- Appellant

. :

:

:

:

:

: APPEAL NO. C

- 210391 TRIAL NO. B

- 2005938

O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Reversed , Plea Vacated, and Cause Remanded Date of Judgment Entry on Appeal: March 30, 2022

Joseph T. Deters , Hamil ton County Prosecuting Att orney , and Alex Scott Havlin , Assistant Prosecuting Attorney, for Plaintiff

- Appellee , Michael J. Trapp , for Defendant

- Appellant.OHIO FIRST DISTRICT COURT OF APPEALS

2 C ROUSE , Judge. 

### {¶1} Defendant

- appellant Darrell Harris appeals his felony conviction for

domestic violen ce
. In two assignments of error, Harris contends that his guilty plea was not knowing and voluntary because the trial court faile d to strictly comply with

Crim. R. 11 and advise him of his right to c onfrontation

. For the reasons set forth below, we sustain Harris’s first assignm ent of error, reverse the judgment of the trial

court , and remand the cause for further proceedings. Our disposition of Har ris’s first assignment of error renders moot his second assignment of error and we decline to

address it. See App.R. 12(A)(1)(c).

F acts and Procedure 

### {¶2} On June 14, 2021 , Harris pleaded guilty to one count of third

- degree felony domestic violence in violation of R.C. 2919.25(A) and (D)(4). Before accepting
the guilty plea, the court engaged Harris in the following colloquy:

THE COURT: All right. Do you understand you do have the right to have a trial by jury?
THE DEFENDANT: Yes, sir. THE COURT: And that by signing this document you are giving up your right to that trial by jury?
THE DEFENDANT: Yes, sir. THE COURT: Do you understand that you do have the right to require the prosecutor to bring in witnesses to prove your guilt beyond a
reasonable doubt?
THE DEFENDANT: Yes, sir.OHIO FIRST DISTRICT COURT OF APPEALS

3 THE COURT: And do you understand you do have the right to bring in your own witnesses to testify on your behalf?

THE DEFENDANT: Yes. THE COURT: Do you understand that neither myself nor the prosecutor can require you to testify against yourself?
THE DEFENDANT: Yes, sir.

* * * THE COURT: Do you have any questions before I accept your plea?
THE DEFENDANT: No, sir.

THE COURT: I will accept the plea of guilty. I’ve heard the facts. The finding is guilty. 

### {¶3} T he court sentenced Harris to 36 months in prison , with credit for time
served. 

### {¶4} Harris timely appealed, raising two assignments of error for our review

. First, Harris contends that the trial court failed to advise him of his right to

confrontation before accepting his plea . Second, Harris contends that the trial court failed to inform him that he was waiving his constitutional trial rights by entering a plea. As a res ult, Harris argues that his guilty plea was not entered knowingly and voluntarily. Harris asks us to vacate his guilty plea and sentence, and to remand the

cause to the trial court. Analysis 

### {¶5} In his first assignment of error, Harris argues that the trial c ourt “fail[ed] to advise him at the time of his guilty plea that he was waving his constitutional right to confront the witnesses against him.” The state argues that theOHIO FIRST DISTRICT COURT OF APPEALS

4 court sufficiently advised Harris of this right when it asked him , “Do you understand that you do have the right to require the prosecutor to bring in witnesses to prove your guilt beyond a reasonable doubt?” The state contends that any ambiguity in that language can be “clarified by reference to * * * the plea form,” which included the r ight

to confrontation

. 

### {¶6} “Before accepting a guilty or no

- contest plea, the court must make the determinations and give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c). ” State v.
Veney , 120 Ohio St.3d 176, 2008

- Ohio

- 5200, 897 N.E.2d 621, ¶ 13. S pecifically, Crim.R. 11(C)(2)(c) provides that the court shall, prior to accepting a guilty plea:
(c) Inform[ ] the defendant and determin[e] that the defendant

understands t hat 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

t he state to prove the defendant’ s guilt beyond a reaso nable doubt at a
trial at which the defendant cannot be compelled to testify against

himself or herself.
(Emphasis added.) Crim.R. 11(C)(2) (c). 

### {¶7} “When explaining the constitutional rights that are being waived, the trial court must strictly comply with Cri m.R. 11

. ” State v. Stumph, 1st Dist. Hamilton

No. C

- 190318, 2021

- Ohio

- 723, ¶ 7 , citing State v. Morris, 1st Dist. Hamilton No . C

180520, 2019

- Ohio

- 3011, ¶ 16 , and Veney at syllab us ; a ccord State v. Miller, 159 Ohio St.3d 447, 2020

- Ohio

- 1420, 151 N.E.3d 61 7 , ¶ 1 (“We reaffirm that a trial court must strictly comply with Crim.R. 11(C)(2)(c)”)

. Strict compliance means that a “trial courtOHIO FIRST DISTRICT COURT OF APPEALS

5 must orally advise the defendant, in a manner reasonably intelligible to the defendant, that the plea waives the rights en umerated in the rule.” Miller at ¶ 1 ; see State v.
Ballard , 66 Ohio St.2d 473, 480, 423 N.E.2d 115 (1981). While “the trial court may vary slightly from the literal wording of the rule in the colloquy, the court cannot simply rely on other sources to conv ey these rights to the defendant.” Miller at ¶ 14, quoting Veney at ¶ 29

. For instance, a signed plea agreement that includes the ri ght does not satisfy the strict

- compliance standard when a right is omitted from an oral colloquy. See State v. Green, 1st Dist. Hamilton No. C

- 170477, 2019

- Ohio

- 1428.
However, in cases where a trial court’s colloquy is merely ambiguous as to a right , rather than missing a right entirely , courts may reference other portions of the record

to determine whether Crim.R. 11 has be en satisfied

. See State v. Barker , 129 Ohio St.3d

472, 2011

- Ohio

- 4130, 953 N.E.2d 826, ¶ 25. 

### {¶8} When a trial court fails to advise a defendant of a Crim.R. 11(C)(2)(c) right, “ the defendant’s plea is constitutionally infirm, making it presumptively

invalid

. ” See Veney at ¶ 29, citing Ballard at 478 , and State v. Griggs, 103 Ohio St.3d
85, 2004

- Ohio

- 4415, 814 N.E.2d 51 ; see also Mi ller at ¶ 13 (explaining that “ a trial court’s failure to notify a defendant of his constitutional rights listed in Crim.R.
11(C)( 2)(c) amounts to plain error” ). 

### {¶9} Harris argues that the trial court failed to a dvise him of his right to

confrontation

— a constitutional right

— in its Cr im.R. 11(C)(2) colloquy

. We agree. While the trial court appropriately advised Harris of many of the ri ghts enumerated in
Crim.R. 11(C)(2)(c) , it did not mention, or even allude to, Harris’s right to confront the

witnesses against him. Contrary to the state’s argument, the court did not advise

Harris of his right to confrontation when it advised him of his “ right to require theOHIO FIRST DISTRICT COURT OF APPEALS

6 prosecutor to bring in witnesses to prove your guilt beyond a reasonable doubt

. ” While

the trial court was not required to recite Crim.R. 11(C)(2)(c) verbatim , this language

does not c onnote a defendant’s right to confront the witne sses against him. In fact, a defendant’s right to require the prosecutor to prove his or her guilt beyond a
reasonable doubt at a trial is a wholly separate right en umerated in Crim.R.
11(C)(2)(c)

. Simply adding the words “bring in witnesses” does not co mmunicate a defendant’s right to confrontation. Moreover, w hile the right to confrontation was
included in the signed plea form, a written waiver does not satisfy strict compliance.

Green , 1st Dist. Hamilton No. C

- 170477, 2019

- Ohio

- 1428. The first assignme nt of

error is sustained.

Conclusion 

### {¶10} In light of the foregoing analysis, we sustain Harr is’s first assignment of

error , reverse the judgment of the trial court, vacate the plea, and remand the cause for further proceedings

. Because our decision to sustai n the first assignment of error is dispositive, the second assignment of error is moot and we decline to address it. Judgment reversed , plea vacated, and cause remanded

.
M YERS , P. J., and Z AYAS , J., concur.

Please note: The court has recorded its entry on the date of the release of this opinion

.