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Guilty pleas on the assembly line

There were two cases on guilty pleas out of the 8th this past week.  While one resulted in the vacating of the plea, a highly unusual result, I confess it was pretty much of a headscratcher.

The one which stayed true to form was State v. Bassett, which presented the question of just how far a judge has to go in advising a pleading defendant of his 5th Amendment rights.  The trial court had told Bassett,

At trial you can present a defense, call witnesses, compel their appearance at trial by subpoena, testify yourself and tell your own side of the story; or you can choose not to testify and the prosecutor could not comment upon that fact in violation of your 5th Amendment right. Do you understand that?

See a problem?  Neither do I, but Bassett did, claiming that the above recitation didn't "strictly comply" with CrimR 11(C)(2)(c), because it didn't tell her that the state couldn't compel her to testify.  This argument isn't as hypertechnical as it might first appear.  A year back, in State v. Day, the court held that the trial judge's telling a defendant that he had the right to present witnesses didn't cut it; he also had to inform the defendant that he had the right to subpoena them.  In this case, though, the court decides that "the court's wording that appellant could choose not to testify is the equivalent of saying that the state could not compel her to testify," so that's the end of that.

The puzzler is State v. ColeCole and his buddy were charged with felonious assault, with one- and three-year gun specs.  The pleas for both were done together.  The deal was that both would plead to the felonious assault; the three-year gun spec on Cole would be deleted, and both of the gun specs on the co-defendant would be dismissed as well.  The trial judge went through that, properly advised Cole of his rights, and accepted his guilty plea.

The 8th vacates the plea, finding that "the totality of the circumstances do not demonstrate that the appellant understood the nature of the crime to which he was pleading guilty."

The indictment was never read to him, nor were the underlying facts ever described on the record.  There is no evidence that the elements of the offense were ever described or explained to appellant at any time, by his attorney, by the prosecutor, or by the court. Indeed, the fact that he was pleading guilty to felonious assault was not even made clear on the record until the conclusion of the proceedings, and then did not include any explanation of what conduct that crime entailed.

Understand, this is a "totality of the circumstances" test, so you can't read it as meaning that the trial judge always has to read the indictment, or that the facts always have to be described in the record.

Still, I've had any number of pleas which were largely indistinguishable from what happened here.  I can't remember the last time a judge explained the elements of the crime, or when the "underlying facts" were set forth, except when a factual basis has to be established for a no contest plea.  My guess is that had the judge simply read the count of the indictment the defendant was pleading to, that would've been sufficient.

There's also the possibility that the decision may simply have been a caution to trial judges being too mechanistic in their pleas.  I happen to know this judge, and he's not one of them, but other judges can be.  I remember, years ago, being out in Ashtabula County for a plea hearing.  The judge spent nearly fifteen minutes explaining the defendant's rights, in so much detail the guy probably could've passed a bar exam question on constitutional law.  That's great when you're doing three pleas a week, but when you're doing five or six a day, you can tend to rush things.  Several times, I've seen judges do "cattle call" pleas:  the defendants from four or five different cases are brought before the judges and the pleas are handled en masse.

So maybe the message of Cole is just to slow down and spend a little more time.

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