Thursday, September 06, 2012

Ohio CrimR 11/EvidR 410 per "no contest" pleas

The Ohio Supreme Court held Tuesday that provisions of the state's Rules of Criminal Procedure and Rules of Evidence that generally bar reference to a defendant's plea of "no contest" to a criminal charge in any subsequent civil or criminal court proceeding do not apply to proceedings in which the defendant collaterally attacks the criminal conviction that resulted from his no-contest plea. ( See Hollingsworth v. Timmerman-Cooper, 2012 Ohio 3907 )

Petitioner filed a habeas corpus action in district court asserting that he had received ineffective assistance of counsel at his criminal trial. Respondent warden of the London Correctional Institution countered that petitioner's plea of "no contest" in the underlying criminal case constituted a waiver of his right to the effective assistance of counsel, to which petitioner objected, arguing that under Ohio law the state could not use his no-contest plea and resulting conviction against him, including using the plea as evidence that he waived his right to effective assistance.

At issue here was whether "Ohio R. Crim. P. 11(B)(2) and Ohio R. Evid.410(A)(2), which prohibit the use of a defendant's no contest plea against the defendant 'in any subsequent civil *** proceeding' apply to prohibit the use of such a plea in a subsequent civil proceeding which is a collateral attack on the criminal judgment which results from the no contest plea, such as a petition for post-conviction relief under Ohio Revised Code § 2953.21, or a federal habeas corpus action under 28 U.S.C. § 2254"

The case was a certified question from the Southern Ohio District Court upon finding no controlling precedent on the admissibility of a no-contest plea in a habeas proceeding.

The Court's summary relates that Justice Paul Pfeifer cited the Supreme Court's 2010 holding in Elevators Mutual Ins. Co. v. J. Patrick O’Flaherty’s Inc. that the purpose behind Crim R.11(B)(2) and Evid.R. 410(A)(2) was to encourage criminal defendants to enter into plea bargains with the state, but that "The purposes served by these two rules are of limited applicability in the present case, the present case involving a habeas action, not a civil suit by a victim. In post-conviction proceedings, there is no risk of subsequent civil liability or even of enhanced criminal liability."

In answering the issued question in the negative and referring to its decision in State v. Mapes, 19 O St. 3d 108 (1985) Justice Pfeifer further wrote, "At its core, a habeas action is a collateral attack on the underlying conviction. Wall v. Kholi, ___ U.S. ___, ___, 131 S.Ct. 1278, 1284, 179 L.Ed.2d 252 (2012). In the instant case, the conviction was the result of a no-contest plea. To prohibit the state from using the no-contest plea to defend the validity of the conviction that resulted from the plea would render the state mute. The state has no defense if the no-contest plea is not in play. As noted earlier, the clear purposes of Crim.R. 11(B)(2) and Evid.R. 410(A)(2) are to encourage the use of plea bargaining by removing the civil consequences of the plea and to avoid an admission of guilt. Prohibiting the state from introducing evidence of a no contest plea in a habeas action to show that the petitioner has waived his claim of ineffective counsel does nothing to advance those purposes, and permitting use of the plea does not frustrate them. The plea is not being used to impose liability on the petitioner or to prove his guilt. There is no risk of subsequent civil liability or even of enhanced criminal liability. The worst-case scenario for a defendant in a post-conviction proceeding such as habeas corpus is the status quo. As we stated in Mapes, the purposes of the two rules 'are not disserved' here. 19 Ohio St.3d at 111, 484 N.E.2d 140."

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