Wednesday, Dec. 11, 2019
LRC Realty, Inc. v. B.E.B. Properties New Par, d.b.a. Verizon Wireless, et al., v. Bruce Bird, et al., Case no. 2018-1262
Eleventh District Court of Appeals (Geauga County)
In the Matter of: K.M., Case no. 2018-1331
Fifth District Court of Appeals (Richland County)
In re: D.T., In re: M.T., In re: R.T., In re: J.T., In re: S.K., In re: T.K., Case no. 2018-1375, 2018-1376, 2018-1377, 2018-1379, 2018-1380 and 2018-1381
Fifth District Court of Appeals (Richland County)
State of Ohio v. Shawn M. Miller, Case no. 2018-0948
Eighth District Court of Appeals (Cuyahoga County)
Did Original Landowner Reserve Right to Receive Rent from Cell Tower Lease?
LRC Realty Inc. v. B.E.B. Properties, New Par, d.b.a. Verizon Wireless et al. v. Bruce Bird et al. Case No. 2018-1262
Eleventh District Court of Appeals (Geauga County)
ISSUES:
- Without a reservation of rent by a landowner prior to the sale of the land, does an agreement to pay rent run with the land, and is the right to receive rent acquired by the seller?
- When a warranty deed states that a sale of land is “subject to” a recorded lease agreement and easement, but neither of those documents state the seller is reserving the right to collect rent, does the buyer acquire the right to receive rent from the use of structures on the land?
BACKGROUND:
In 1980, Bruce Bird formed a general partnership called B.E.B. Properties with partners David Eardley and Robert Bosler. In 1994, B.E.B. purchased a commercial/industrial building located at 112 Parker Court in Chardon. In March 1994, B.E.B. entered into a lease option followed by a lease agreement with Northern Ohio Cellular Telephone Co. to allow for the erection and use of a cellular tower on land behind the building. The lease had a 35-year term with payments due each April 1 through 2029. The rent started at $12,000 for the first three years and would reach $41,748 annually in the final years.
One year later, B.E.B. agreed to sell the property to Keith Baker and Joseph Cyvas. While B.E.B. offered to sell the men the right to receive rent from the cellphone tower lease for $100,000, they declined and purchased the property. The deed to the property qualified the sale by stating the premises were “subject to” four items filed with the Geauga County Recorder’s Office, including the 1994 lease to the telephone company, the 1994 easement to the telephone company, and a “memorandum of lease” filed in March 1995, which discussed the lease agreement between B.E.B. and Northern Ohio Cellular.
After the sale of the property, B.E.B. dissolved with Eardley and Bosler selling their shares of the partnership to Bird and his wife, Sheila. A “memorandum of assignment” was then filed with the county recorder, stating that the Birds purchased the right from B.E.B. to receive the cell tower lease payments and directed the telephone company to send the payments to the Birds. Later in 1995, Northern Ohio Cellular sold its lease rights to New Par, which was instructed to send payments to the Birds.
In 1999, Baker and Cyvas transferred the property to their company, Magnum Machine, and in 2003, Magnum Machine sold the property to 112 Parker Court LLC an entity owned by Randall Bennett. In 2013, 112 Parker Court LLC sold the property to LRC Realty. During the period between 1999 and 2013, New Par sent all rent payments to the Birds.
In 2014, LRC’s owner noted from a recent survey of the property that the company owned the land on which the cell tower was constructed. The company contacted New Par and instructed it to pay LRC the lease payments, which New Par did.
Lawsuits Filed
In late August 2014, LRC sued B.E.B. and New Par seeking a declaratory judgment that it purchased the entire property and was entitled to receive the lease rental payments, including the one for 2013 that New Par sent to the Birds. A week later, the Birds sued LRC and New Par, claiming they still had the right to payment under the lease and that the money New Par sent to LRC in 2014 needed to be sent to the Birds. The lawsuits also named 112 Parker Court LLC, which argued that if LRC owned the land, it must have acquired the cell tower, too, when it purchased the property. The company asks the trial court to direct the Birds to send it the 10 years’ worth of payments the Birds collected while 112 Parker Court LLC owned the land.
The trial court consolidated the cases. LRC and 112 Parker Court asked for summary judgment in their favor, and the Birds asked for summary judgment in their favor. The trial court sided with the two companies and directed the Birds to pay 112 Parker Court $120,000 and LRC $23,688. The court gave LRC the right to receive the rent payments going forward, which the Birds estimated to be about $500,000.
The Birds appealed to the Eleventh District Court of Appeals. In a 2-1 decision, the Eleventh District reversed the trial court, and ruled the Birds are entitled to keep receiving the payments, and that LRC owes the Birds for the payment it took from New Par.
LRC and 112 Parker Court appealed the decision to the Supreme Court, which agreed to hear the case.
Right to Receive Rent Included in Deed, Landowners Argue
LRC and 112 Parker Court presented similar arguments in their briefs. The companies note that Ohio’s long-standing general rule is that an agreement to pay rent runs with the land, and unless the seller expresses a reservation of the right to receive rent, the right to receive rent transfers to the new landowner. The reservation to receive the rent must be in the deed so the right can be seen in “the chain of title” as property passes from one owner to the other, they maintain. Having the reservation in a deed, which is recorded with the county recorder’s office, puts the buyer and any future buyer on notice that the prior owner retained the right to receive rent from anyone renting property or structures on the land, the companies explain.
The companies note that none of the documents transferring the deeds from B.E.B. to the future owners ever indicated that B.E.B. retained a right to receive rent, and nothing in the deeds notifies the owners that B.E.B. transferred that right to the Birds. The companies cite the Ohio Supreme Court’s 2018 Koprivec v. Rails-to-Trails of Wayne Cty. decision, which reaffirmed the principle that when the “parties’ intentions are clear from the four corners of the deed, we will give effect to that intention.” Because the deed to the property was transferred from B.E.B. to Baker and Cyvas in 1995 with no reservation of rental payments stated within “the four corners of the deed,” then there was no intention that B.E.B. or the Birds would be able to collect rent from the cell tower after selling the land, the companies assert.
The companies also note that B.E.B. sold its right to collect the cell tower payments two months after it sold the land to the two business owners. Since B.E.B. lost it rights to receive rent on the day it sold the land, it had no rights that it could sell to the Birds, the companies argue.
The companies also take issue with the Eleventh District’s position that the clauses in the deed stated the deed was “subject to” the other documents signed by the prior owners and filed with the county recorder. The companies note the dissenting Eleventh District judge agreed with their position that the deed provisions following the “subject to” notice never expressly stated that B.E.B. was entitled to lease payments or limited the new owner’s right to receive payments once it purchased the property. The companies argue the “subject to” notices only informed them there was a company leasing and paying for the right to use a cell tower on the property, and that under the traditional rules of real estate, the cell phone companies had a right to continue to lease the land and pay rent to the owner. Since the companies acquired the property, they are entitled to the lease payments for the years they owned it, they conclude.
Buyers Aware of Lease, Not Entitled to Rent, Couple Asserts
The Birds don’t dispute the companies’ general position that the rent runs with the land unless expressly reserved in the deed, and in this case that didn’t happen. However, they note an equally long-standing rule is that if the purchaser has “actual knowledge” of a reservation when the land is bought, the reservation continues. The Birds state that every owner was aware of the lease, evidenced by the lack of the prior landowners’ attempts to collect payments from the phone companies for 18 years. The couple maintains that not only did the owner of LRC Realty know when he purchased the property from 112 Parker Court that rent payments were not part of the deal, but the company also had “constructive knowledge” of the arrangement because of the deed’s notations that the deed was subjected to the lease agreement.
The Birds also note that they are the only party in the transaction that paid for the right to collect the rent payments when they paid the two partners of B.E.B. $66,000 for the right to collet their share of the rent from the phone companies. The Birds argue that Baker and Cyvas declined to purchase the right to collect rent payments from the tower and didn’t attempt to collect while they owned the property from 1995 to 2003. The Birds argue that 112 Parker Court was informed by Baker and Cyvas about the arrangement and made no effort to seek rent payments. No deal between any landowners, including 112 Parker Court’s sale to LRC, reflected the property’s value with a right to receive rent, the Birds assert. LRC is seeking a “windfall” from the property that it didn’t pay for, the couple argues.
The Birds also point to the Eleventh District’s majority opinion, which found the deed referenced the leases and the lease documents on file with the recorder had expressly stated that B.E.B. was to receive the rent. While the traditional rule might be “the right runs with the land,” the lease agreement stated the arrangement was a contract between the phone company and B.E.B., which was the property owner at the time the lease was signed, and that B.E.B. retained the right, the Birds note. Just because other companies acquired the right to the property doesn’t mean they acquired the right to replace B.E.B. as the “landlord” of the tower, the couple maintains. Because B.E.B. retained the right to receive the rent in the lease agreement, which was on file with the county, B.E.B. had the right to sell the Birds the right to receive rent, the couple concludes.
Cell Phone Company Loses Right to Argue
Early in the case New Par asked the trial court to place its annual rental payments into a court account and allow the money to remain there until the dispute is settled. New Par didn’t file a merit brief in the case and isn’t allowed to participate in oral arguments.
Friend-of-the-Court Brief Filed
An amicus curiae brief supporting LRC and 112 Parker Court’s position has been submitted by the Ohio Association of Independent Title Agents.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing LRC Realty: Timothy Fitzgerald, 216.539.9370
Representing 112 Parker Court LLC: Robert Dove, 614.462.5443
Representing Bruce and Sheila Bird et al.: James Rosenthal, 216.815.9500
Did Juvenile Court Violate State Law by Taking More than 90 Days to Resolve Cases?
In re K.M. and In re K.M., Case No. 2018-1331
Fifth District Court of Appeals (Richland County)
ISSUE: Does Ohio law mandate that a juvenile court dismiss a neglect, abuse, or dependency case at the request of any party if the court doesn’t complete “disposition” of the case within 90 days of the date of complaint’s filing?
BACKGROUND:
Based on concerns about two children, both identified as K.M, Richland County Children Services filed complaints involving physical abuse, lack of medical care, and school tardiness with the Richland County Juvenile Court on April 19, 2017.
On June 30, 2017, a juvenile court magistrate held an adjudicatory hearing with both parents to determine whether the children were abused, neglected, or dependent. The magistrate found the children were “dependent” under R.C. 2151.04 and asked the parents and the children services agency whether they wanted to schedule a separate dispositional hearing for determining the next steps. The parties declined. However, the magistrate said he wanted more information before ruling, so he said he would schedule a separate dispositional hearing. A few weeks later, the decisions from the adjudicatory hearing were journalized and the next hearing was scheduled for Aug. 4, 2017. The children remained with R.H., their mother.
At a dispositional hearing, the juvenile court decides what action to take regarding a child. Before the Aug. 4 hearing began, the mother verbally asked the court to dismiss the cases, contending the court didn’t conduct the dispositional hearing within 90 days of when the complaints were filed, as provided in R.C. 2151.35(B)(1).
The magistrate denied the motion and ruled on Aug. 17 to place the children in the temporary custody of one of their grandmothers under the supervision of the child services agency. Over the mother’s objections, the juvenile court adopted the magistrate’s decisions.
Mother Appeals Decisions about Her Children
R.H. appealed to the Fifth District Court of Appeals, which in August 2018 upheld the juvenile court’s decisions and concluded in part that the mother waived her right to a hearing within 90 days after the complaints were filed.
She appealed to the Ohio Supreme Court, which accepted this issue for review.
Mother Argues Courts Must Meet 90-Day Deadline
R.H. views the language in R.C. 2151.35(B)(1) as mandatory. The Ohio Supreme Court has determined that, as a general rule, a statute providing a timeframe for the performance of an official duty is directory, rather than mandatory, as far as that timeframe, R.H. notes.
However, R.H. maintains, the Court explained in In re Davis (1999) that a provision that otherwise would be directory becomes mandatory if “the nature of the act to be performed or the phraseology of the statute … is such that the designation of time must be considered a limitation upon the power of the officer.” The statute limits the juvenile court’s power by mandating dismissal when the dispositional hearing isn’t held within 90 days, the mother contends.
“[The statute’s] use of ‘shall,’ its proscription of continuances beyond the time limit prescribed, and its explicit provision for dismissal outside of the time limit demonstrate the exceeding importance the legislature placed on compliance,” her brief to the Court states.
The Fifth District ruled that R.H. waived her right to a 90-day timeframe because she contributed to delays in the proceedings by not cooperating with the children services investigation. She responds that the Ohio Supreme Court hasn’t found that a party can waive the right to a 90-day disposition of an abuse, neglect, or dependency case. She also maintains that her behavior, even if uncooperative, can’t serve as a waiver.
Noting that this law affects the fundamental right of parenting, R.H. argues that dismissal of a case without prejudice after 90 days between the complaint filing and the dispositional hearing balances a parent’s rights with the child’s interests. In her case, she states, the Aug. 4 dispositional hearing was 107 days after the children services agency filed the complaints on April 19, and the juvenile court must dismiss the case.
Children Services Counters that Mandatory Deadline Is at Odds with Statute’s Purpose
Richland County Children Services contends that the correct approach for disputing the timing of the dispositional hearing was to file a writ of procedendo in July 2017 when the magistrate set the date for the dispositional hearing, not to wait until the Aug. 4 hearing to address the issue. Because R.H. didn’t pursue this remedy, she waived any legal challenges about the delay, the agency maintains.
The agency also argues that R.C. 2151.35(B)(1) is directory, not mandatory. When a court doesn’t comply with the time periods in the law, that doesn’t affect the court’s authority and doesn’t require dismissal, the agency asserts. Its brief states that the 90-day time limit is designed to expedite the resolution of cases involving children and their parents’ rights, but parents are permitted to waive the timeframe, by, for example, asking for a continuance. Those requests don’t mean the juvenile court loses jurisdiction over the case, the agency maintains.
The Ohio Supreme Court’s decision in State ex rel. Jones v. Farrar (1946) states, “As a general rule, a statute which provides a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure.”
A mandatory 90-day time limit “would defeat the very purposes the time limit was designed to protect,” the agency’s brief argues. “If there were jurisdictional consequences, a missed deadline would require either that the child be returned to a potentially risky home situation, or that a new complaint be filed, and the process begun anew, delaying the final resolution of the issue even further. Such consequences would not serve the interests of children, who are too often relegated to temporary custody for too long.”
Juvenile courts must have the discretion to balance the due process rights of parents with the best interests of the children, and interpreting the 90-day timeframe as directory allows juvenile courts to do that, the agency concludes.
Briefs Not Filed by Father or Children
Because the father and lawyers for the two children didn’t submit merit briefs in this case, they cannot participate in oral argument before the Supreme Court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the mother, R.H.: Darin Avery, 419.953.4773
Representing Richland County Children Services: Edith Gilliland, 419.774.4100
Did Juvenile Court Violate State Law by Taking More than 90 Days to Resolve Cases?
In re D.T., In re M.T., In re R.T., In re J.T., In re S.K., and In re T.K., Case Nos. 2018-1375, 2018-1376, 2018-1377, 2018-1379, 2018-1380, and 2018-1381
Fifth District Court of Appeals (Richland County)
ISSUE: Does Ohio law mandate that a juvenile court dismiss a neglect, abuse, or dependency case at the request of any party if the court doesn’t complete “disposition” of the case within 90 days of the date of complaint’s filing?
BACKGROUND:
Richland County Children Services filed complaints on May 4, 2017, with the Richland County Juvenile Court involving siblings identified as D.T., M.T., R.T., J.T., S.K., and T.K. The agency had concerns about physical abuse earlier that year by the live-in boyfriend of the children’s mother, B.S. The boyfriend was arrested for domestic violence.
Their mother agreed to a safety plan placing the children with two relatives and a friend. However, about a week later, B.S. collected the kids and moved to Kentucky with them. The juvenile court issued an order placing the children in the agency’s temporary custody. Agency representatives traveled to Kentucky, where B.S. voluntarily surrendered the children to the agency. The children were returned to Richland County.
The juvenile court held adjudicatory hearings on July 21, 2017, to determine whether the children were abused, neglected, or dependent. Hearings also were held on Aug. 31 and Oct. 12. At the August hearing – 116 days after the complaints were filed, and at the October hearing, the mother made motions to dismiss the cases, asserting that the court didn’t adhere to the 90-day time limit in R.C. 2151.35(B). The juvenile court rejected the request, found all six children were “dependent” under R.C. 2151.04, and found two of the children were abused.
Dispositional hearings – where a juvenile court decides what action to take regarding children – were held in November 2017, January 2018, and March 2018. The court completed the cases in April 2018, 339 days after the complaints were filed, and the children remained in the custody of a grandmother.
Mother Files Appeals of Juvenile Court’s Decisions
B.S. appealed all six cases to the Fifth District Court of Appeals, which affirmed the juvenile court rulings in August 2018. She appealed to the Ohio Supreme Court, which accepted this issue for review.
Mother Argues Courts Must Meet 90-Day Deadline
The attorney for the mother in the two In re K.M. cases being heard by the Supreme Court on the same day (see previous preview) also is representing B.S. in these cases. The legal issue before the Court is the same, and each mother’s arguments are similar but applied to the distinct facts of the cases.
B.S. views the language in R.C. 2151.35(B)(1) as mandatory. The Ohio Supreme Court has determined that, as a general rule, a statute providing a timeframe for the performance of an official duty is directory, rather than mandatory, as far as that timeframe, B.S. notes.
However, B.S. maintains, the Court explained in In re Davis (1999) that a provision that otherwise would be directory becomes mandatory if “the nature of the act to be performed or the phraseology of the statute … is such that the designation of time must be considered a limitation upon the power of the officer.” The statute limits the juvenile court’s power by mandating dismissal when the dispositional hearing isn’t held within 90 days, the mother contends.
“[The statute’s] double use of the mandatory ‘shall,’ its proscription of continuances beyond the time limit prescribed, and its explicit provision for dismissal outside of the time limit demonstrate the exceeding importance the legislature placed on compliance,” her brief to the Court states.
In B.S.’s view, the Fifth District failed to consider that she had remedied the problems. Dismissing the cases in accordance with the statutes when she requested it would have resolved the cases, and the situation of her children, much sooner, she argues.
Noting that this law affects the fundamental right of parenting, B.S. states that dismissal of a case without prejudice after 90 days from the complaint filing to the dispositional hearing balances a parent’s rights with the child’s interests. Because the dispositional hearings were well beyond 90 days after the children services agency filed the complaints in May 2017, the juvenile court had to dismiss the cases, she asserts.
Children Services Counters that Mandatory Deadline Is at Odds with Statute’s Purpose
Richland County Children Services is the appellee in the In re K.M. cases as well in as these cases. The agency makes similar arguments about R.C. 2151.35(B) here, but applies them to different facts.
The agency contends that the correct approach for disputing the timing of the dispositional hearings was to file a writ of procedendo 90 days after the May 2017 filing of the complaints. Because B.S. left the jurisdiction with her children, adding to the delay in the resolution of these cases, and didn’t pursue this remedy, she waived any legal challenges about the delay, the agency maintains.
The agency also argues that R.C. 2151.35(B)(1) is directory, not mandatory. When a court doesn’t comply with the time periods in the law, that doesn’t affect the court’s authority and doesn’t require dismissal, the agency asserts. Its brief states that the 90-day time limit is designed to expedite the resolution of cases involving children and their parents’ rights, but parents are permitted to waive the timeframe, by, for example, asking for a continuance. Those requests don’t mean the juvenile court loses jurisdiction over the case, the agency maintains.
The Ohio Supreme Court’s decision in State ex rel. Jones v. Farrar (1946) states, “As a general rule, a statute which provides a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure.”
A mandatory 90-day time limit “would defeat the very purposes the time limit was designed to protect,” the agency’s brief argues. “If there were jurisdictional consequences, a missed deadline would require either that the child be returned to a potentially risky home situation, or that a new complaint be filed, and the process begun anew, delaying the final resolution of the issue even further. Such consequences would not serve the interests of children, who are too often relegated to temporary custody for too long.”
Juvenile courts must have the discretion to balance the due process rights of parents with the best interests of the children, and interpreting the 90-day timeframe as directory allows juvenile courts to do that, the agency concludes.
Father and Children Don’t File Briefs
Because the father and lawyers for the children didn’t submit merit briefs in this case, they aren’t permitted to participate in oral argument before the Supreme Court.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2018-1375, 2018-1376, 2018-1377, 2018-1379, 2018-1380, and 2018-1381).
Contacts
Representing the mother, B.S.: Darin Avery, 419.953.4773
Representing Richland County Children Services: Edith Gilliland, 419.774.4100
Must Trial Court Strictly Comply with Rule Explaining Consequences of Plea Bargain?
State of Ohio v. Shawn Miller, Case No. 2018-0948
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Does a reviewing court apply a substantial compliance standard when determining if a trial court ensured a criminal defendant understood he or she was waiving constitutional rights when entering a plea in a felony case?
BACKGROUND:
In 2016, Shawn Miller and two others arranged to sell Xanax to Keith Frank at Frank’s home in Parma. When they met, Frank stole the Xanax and ran away. Enraged that he couldn’t track down Frank, Miller purchased road flares and gasoline. He attempted to set a van sitting in Frank’s driveway on fire and smashed one of its windows. Miller and the others then attempted to set Frank’s home on fire.
Police recovered text messages from Miller’s phone in which Miller bragged about his exploits, including one that read: “I was busy all night burning a dude’s house down. I think it made the news.” Miller and the other two were charged with multiple counts of attempted murder, arson, and other felonies. Miller entered into a plea agreement with county prosecutors and agreed to plead guilty to one count of aggravated arson, one count of arson, and one count of felonious assault.
The trial judge then conducted a Criminal Rule 11-required colloquy with Miller and the two others, that included the requirements of Crim.R. 11(C)(2)(c). The judge asked if the defendants understood they had no obligation to plead guilty and could go to trial. The judge also asked if they understood they could have lawyers and, if they couldn’t afford a lawyer, the court would appoint one. The judge informed them that the burden was on the prosecution to prove the charges against them and they would be acquitted of any charge not proven beyond a reasonable doubt. The judge stated they could have a witness take the stand and could take the stand themselves or chose to remain silent. The judge explained that the defendants and their lawyers could cross-examine the prosecution’s witnesses, and that they could subpoena their own witnesses to testify in their support.
Miller told the judge he understood each question and, when asked if he had any questions, he stated that he didn’t. After being informed of the maximum penalties, Miller pleaded guilty, and he was sentenced to an eight-year prison term.
Miller appealed his conviction and sentence, arguing that under Crim.R. 11(C)(2)(c), the trial court was required to explain to him that he was waiving his constitutional rights by pleading guilty and had to specifically ask him if he understood his rights. He asserted the court didn’t follow the rule. In a 2-1 decision, the Eighth District Court of Appeals ruled the trial court failed to strictly comply with the rule, and vacated Miller’s guilty pleas.
The Cuyahoga County Prosecutor’s Office appealed the Eighth District’s decision to the Supreme Court, which agreed to hear the case.
Strict Reading of the Rule Not Required, Prosecutor Argues
The portion of Crim.R. 11(C)(2)(c) at issue states: “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… [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 defendants’ favor, and to require the state to prove the defendant’s guilt beyond reasonable doubt at trial at which the defendant cannot be compelled to testify against himself or herself.”
The prosecutor argues that while prior Ohio Supreme Court cases state that strict compliance with the Crim.R. 11(C)(2)(c) is required, an exact recitation of the rule isn’t required. Citing the Court’s 1981 State v. Ballard decision, the prosecutor maintains that the reviewing court should determine if the trial court explained or referred to the right in “a manner reasonably intelligible to the defendant.”
The prosecutor maintains the trial court was attempting to explain to Miller and the others their rights in terms the judge thought the defendants would understand. Although the judge never used the words “waive or waiver” during the colloquy, Miller understood by the nature of the exchange that he was giving up his constitutional rights to a trial, the requirement that the prosecution prove he was guilty beyond a reasonable doubt, and all the other rights required to be explained under the rule, the prosecutor asserts.
In Ballard, the Court ruled that by examining the totality of the circumstances, substantial compliance when discussing the rule with the defendant is sufficient. The totality of the circumstances indicates Miller understood that by pleading guilty he was waiving his constitutional rights, the prosecutor maintains. The prosecutor urges the Court to rule that a reviewing court can use a substantial compliance standard when it considers the totality of the circumstances when determining if defendants have waived their constitutional rights by pleading guilty.
Explanation of Waiver Required, Offender Argues
Miller argues the prosecutors never asserted at the lower court level that substantial compliance was sufficient to satisfy Crim.R. 11(C)(2)(c). Instead, they argued that strict compliance was required, and that the judge’s colloquy met the strict compliance standard even if the exact words of the rule weren’t stated in court. Because they didn’t raise the issue in the lower courts, Miller maintains they can’t raise it for the first time in the Supreme Court.
As to the rule itself, Miller points to the first requirement stated in the rule — that the court must be “informing the defendant and determining that the defendant understands that by the plea, the defendant is waiving the rights to jury trial….” He argues the point of the exchange isn’t just to ensure a defendant understands the rights, but understands the consequences of waiving the rights. Because the judge only asked if Miller understood what rights he was giving up, it doesn’t mean a layperson, such as Miller, understands the consequences of giving up the rights, he asserts.
The trial court didn’t come close to explaining a waiver of constitutional rights even in the simplest terms, and even if the court wasn’t required to use the words “waive” or “waiver,” it didn’t use similar terms like “give up” or “forego” or “surrender” to ensure he understood the consequences of pleading guilty, he concludes.
“The trial court’s colloquy with Mr. Miller leaves too much in question as to one of the essential aspects of any guilty plea, that is, whether the defendant understands he is waiving his constitutional rights,” Miller’s brief states.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Gregory Ochocki, 216.443.7800
Representing Shawn Miller: Patrick Milligan, 216.299.8415
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.