State v. Mikulic

Per Curiam. In this delayed appeal, defendant Andrew Mikulic challenges his convictions on two counts of robbery. For the reasons set forth below, we reverse and remand for further proceedings consistent with this opinion. On December 9, 1993, defendant was indicted for two counts of robbery with violence specifications and one count of felonious assault with two violence specifications. Defendant pleaded not guilty, and counsel was assigned to represent him. The record next indicates that the state and defense counsel entered into plea negotiations, and on December 17, 1993, the court held the following proceedings of record: “[BY DEFENSE COUNSEL]: Your honor, I have discussed that with Mr. Mikulic. And he talked about entering a plea of [not guilty] by reason of insanity. After talking to him about that, he felt that because he was under the influence of drugs, that he was partially insane at the time. My professional opinion is that the voluntary ingestion of a controlled substance, even though it makes a lot of people temporarily insane, is an unavailable [defense] under the State of Ohio. But he did bring that up. “THE COURT: Well, Mr. Mikulic, did you take the drugs voluntarily? *789 “DEFENDANT: Yes. “THE COURT: Before committing these two crimes? “DEFENDANT: Yes. “THE COURT: Nobody forced you to take these drugs? Nobody forced the drugs into you did they? “DEFENDANT: No. “THE COURT: I see. And except for drug using, do you feel that you are competent and sane? “DEFENDANT: Not when I’m on drugs.” Defendant then entered guilty pleas to counts one and two, and the state nolled the felonious assault charge. At the subsequent sentencing proceeding, defense counsel outlined defendant’s extensive psychiatric history. Records were produced for the court, and the court indicated that it had read them. These documents, which are now appended to defendant’s appellate brief and were presumably part of the presentence investigation which the trial court ordered, detail defendant’s extensive history of psychiatric problems. One of the documents indicates that defendant has “substance-induced psychosis,” and another indicates that he has “acute psychosis which was partially drug-induced.” In addition, the documents reveal that days before the offenses which are the subject of the indictment, defendant was hospitalized in the Psychiatric Intensive Care Unit at Lakewood Hospital, and upon his discharge was given a prescription for Haldol, with instructions that he attend a partial-hospitalization program at St. Vincent Charity Hospital. The court subsequently sentenced defendant to a term of five to fifteen years’ incarceration on each count. Defendant now appeals and assigns two errors for our review. Defendant’s first assignment of error states: “The appellant’s plea was not a voluntary and knowing plea in violation of the appellant’s due process rights under the Fifth and Fourteenth Amendments of the United States Constitution and under Article I Section 10 of the Ohio Constitution.” Guilty pleas are governed by Crim.R. 11, which provides: “(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: *790 “(a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. “(b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. “(c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself.” Thus, before accepting a guilty plea, the trial court must inform the defendant that by pleading guilty, he is waiving the rights enunciated in Crim.R. 11(C)(2). In determining whether the trial court has met its duties, reviewing courts have distinguished nonconstitutional and constitutional rights. See State v. Sims (May 24, 1995), Summit App. Nos. 16841 and 16936, unreported, 1995 WL 312702; State v. Gibson (1986), 34 Ohio App.3d 146, 147, 517 N.E.2d 990, 991-992. For rights iiot protected by the Constitution, reviewing courts consider whether the trial court substantially complied with the requirements of Crim.R. 11(C)(2) and the defendant subjectively understood the implications of his plea and the nature of the rights he was waiving. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476-477. For a waiver of constitutional rights to be valid under the Due Process Clause, there must be an intentional relinquishment or abandonment of a known right or privilege. State v. Buchanan (1974), 43 Ohio App.2d 93, 96, 72 O.O.2d 307, 308-309, 334 N.E.2d 503, 506-507. In State v. Buchanan, supra, this court explained: “The waiver must be voluntarily, intelligently and knowingly made and the defendant must understand the nature of the charges against • him and the consequences of his plea of guilty. Otherwise it is in violation of due process and is therefore void.” Id. at 96, 72 O.O.2d at 309, 334 N.E.2d at 506. Accord State v. Kelley (1991), 57 Ohio St.3d 127, 129, 566 N.E.2d 658, 660. Where it is manifest that the plea is premised upon incorrect legal advice, the plea is in violation of the defendant’s right to due process and is not voluntary. See, e.g., State v. Fletchinger (1977), 51 Ohio App.2d 73, 77, 5 O.O.3d 186, 188-189, 366 N.E.2d 300, 303. Once a plea is made, the trial court may accept the plea of guilty and enter a finding of guilt and sentence the defendant, or it may reject the plea, enter a plea of not guilty, and set the matter for trial. State v. Richter (1993), 92 Ohio App.3d 395, 399, 635 N.E.2d 1295, 1297-1298. Crim.R. 11(G). However, *791 where a guilty plea is not knowingly, voluntarily, and intelligently made, it may not be accepted by the trial court. Id.; State v. Smith (Mar. 28, 1991), Cuyahoga App. Nos. 58334, 58418 and 58443, unreported, 1991 WL 41730. In this instance, the record compels the conclusion that defendant did not knowingly, voluntarily, and intelligently plead guilty to the robbery charges, since he was not given correct information regarding the defense of insanity. That is, although the defense attorney and the trial court correctly noted that, for an otherwise sane individual, the voluntary ingestion of drugs will not give rise to the defense of insanity, see, e.g., State v. Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d 443, 446-447, there is a general defense of insanity that defendant was not advised upon. That is, pursuant to R.C. 2901.01(N): “A person is not guilty by reason of insanity relative to a charge of an offense only if the person proves, in the manner specified in section 2901.05 of the Revised Code, that at the time of the commission of the offense, the person did not know, as a result of a severe mental disease or defect, the wrongfulness of the person’s acts.” This omission, coupled with defendant’s extensive psychiatric history, including psychiatric hospitalizations within days of the alleged offenses, compel us to conclude that under the facts of this matter, defendant’s guilty pleas were not knowingly, intelligently, and voluntarily made. Moreover, we conclude that defendant’s extensive psychiatric history constitutes a significant showing that his sanity at the time of the offense alleged in the indictment would be a key issue at trial, the court and defense counsel would have been well advised to order an examination and evaluation of the defendant pursuant to R.C. 2945.39. We therefore reverse this matter and remand for further proceedings. The state relies upon State v. Swift (1993), 86 Ohio App.3d 407, 621 N.E.2d 513, in support of its claim that the plea was properly made. In Swift, however, the court concluded that the defendant was mentally competent to enter a guilty plea. Nonetheless, the court stated: “[I]t is clear that a court must ‘clear up’ any confusion on the part of the defendant before it can accept a guilty plea. * * * Here, there was an indication of either confusion or misunderstanding * * *. As a result, the implication is that the issue was not resolved and the appellant did not make a knowing plea. Accordingly, this portion of the assignment constitutes error.” Thus, Swift supports our decision herein. In light of this determination, defendant’s second assignment of error is moot, and we do not address it. App.R. 12(A)(1)(c). Judgment reversed and cause remanded. *792 Dyke, P.J., and Nahra, J., concur. Patton, J., dissents.