COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72716 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION NIDIO MEJIA : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 3, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-345,888 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor ROBERT T. GLICKMAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROBERT DeMARCO Attorney at Law 1750 Standard Building Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: -2- Appellant appeals the trial court's acceptance of his guilty plea on the grounds that it failed to ascertain that his plea was knowingly and intelligently made and that it failed to comply with the requirements for the use of an interpreter. The record reveals that appellant's assignments of error have no merit. The trial court's decision is therefore affirmed. I. Appellant was indicted on a three-count indictment as follows: count one, trafficking in cocaine in violation of R.C. 2925.03; count two, possession of drugs in violation of R.C. 2925.11; and count three, possessing criminal tools in violation of R.C. 2923.24. A hearing was conducted on January 13, 1997. Appellant re- quired the services of an interpreter and thus appeared before the trial judge with both his counsel and an interpreter. Appellant pled guilty to an amended count one; counts two and three were dismissed. Appellant was sentenced to the Lorain Correctional Institution for a term of three years. II. Appellant was subsequently granted leave and filed a delayed appeal with this court, alleging three assignments of error. Since appellant's first and third assignments of error are related, they will be considered together: -3- I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW SINCE THE TRIAL COURT FAILED TO ASCERTAIN THAT DEFENDANT'S PLEAS (SIC) WAS KNOWINGLY AND INTELLIGENTLY MADE. III. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW SINCE THE TRIAL COURT FAILED TO EX- PLAIN TO HIM HIS CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS FOR OBTAINING WIT- NESSES. It is appellant's position that the trial court failed to comply with the requirements of Crim.R. 11(C). Crim.R. 11(C) provides, in pertinent part: (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no con- test, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maxi- mum 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 by his plea that he is waiv- ing 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. When an appellate court is reviewing a plea submitted by a defendant, the focus should be on whether the dictates of Crim.R. 11 have been followed. State v. Kelly (1991), 57 Ohio St.3d 127, 128. It is the duty of the appellate court to ascertain whether -4- the defendant voluntarily and knowingly waived his constitutional rights. Id. at 129. According to the United States Supreme Court in Boykin v. Alabama (1969), 395 U.S. 238, 243, these constitutional rights include: (1) the Fifth Amendment privilege against compulsory self- incrimination; (2) the right to trial by jury; and (3) the right to confront one's accusers. Id. Furthermore, the Ohio Supreme Court noted that since the right to have compulsory process of witnesses is guaranteed by the Sixth Amendment to the United States Constitu- tion, a defendant must also be informed of this right. State v. Ballard (1981), 66 Ohio St.2d 473, at footnote 4. Appellant contends that the trial court failed to inform him of his right to compulsory process of witnesses. Although sub- stantial compliance with Crim.R. 11 is sufficient when addressing non-constitutional rights, Ohio courts have indicated that strict compliance is required when the question is raised regarding constitutional rights. See State v. Colbert (1991), 71 Ohio App.3d 734, 737 citing State v. Grundy (Jan. 25, 1991), Trumbull App. No. 89-T-4251, unreported, at 7, 1991 WL 6017; State v. Higgs (Sep. 30, 1997), Trumbull App. No. 96-T-5450, unreported, 1997 WL 664403; State v. Mulhollen (May 16, 1997), Portage App. No. 95-P-0133, un- reported, 1997 WL 286215; State v. Esqueda (Sep. 30, 1996), Franklin App. No. 96APA01-118, unreported, 1996 WL 550277; State v. Morris (Oct. 5, 1995), Franklin App. No. 95APA04-478, unreported, 1995 WL 584398. However, the trial court is not required to quote the rule verbatim. Ballard, supra, at 480. -5- At the hearing, both Juan Diaz, appellant's interpreter, and an interpreter for appellant's co-defendant were sworn in. The trial judge then informed Mr. Diaz that the court will review with Mr. Mejia his rights, his constitutional and trial rights, and will need you to interpret those rights as they are given to him, and make a verbal response on the record. The trial judge proceeded to inform those present that she would read the rights as required by Crim.R. 11(C) to both inter- preters simultaneously and then indicated each interpreter separately for the responses of their respective clients. The following colloquy occurred, with appellant answering through his interpreter: THE COURT: If during the course of these plea discussions you become confused, don't understand or simply disagree with what's being said, then you have a right to stop these proceedings by making your indications known to the court. * * * THE COURT: And whoever is speaking will address any issue you have until you are completely satis- fied; do you understand that? * * * MR. MEJIA: Yes, he agrees. After ascertaining appellant's age and that he was not under the influence of drugs or alcohol, the judge continued: THE COURT: Do you understand that upon entering your plea of guilt you are waiving or giving up cer- tain constitutional and trial -6- rights that you might otherwise have had we proceeded to trial? * * * MR. MEJIA: Yes, your honor. THE COURT: I'm going to explain each right to you. Let me know you under- stand each right by saying yes out loud: Do you understand you have a right to a trial by a jury or by a judge? MR. MEJIA: Yes, your honor. * * * THE COURT: To subpoena witnesses to appear and testify on your own behalf? * * * MR. MEJIA: Yes, your honor. THE COURT: To have your lawyer cross- examine each and every witness that will be called by the state of Ohio? MR. MEJIA: Yes, your honor. * * * THE COURT: To have the State of Ohio prove your guilt by evidence beyond a reasonable doubt? * * * MR. MEJIA: Yes, your honor. THE COURT: To remain silent and not tes- tify and no one could comment on the fact that you did not testify at trial? MR. MEJIA: Yes, your honor. * * * -7- MR. YOUNG: Might I just add, since we're dealing with people that aren't familiar with the language, that that includes the court it- self, nor (sic) the pros- ecutor in terms of being able to comment on their failure to testify. MR. MEJIA: Yes, your honor. * * * THE COURT: Do you understand the crime to which you are pleading guilty, that being a felony of the third degree? * * * MR. MEJIA: Yes, your honor. THE COURT: Is punishable by one, two, three, four, or five years with a maximum discretionary fine of $10,000? * * * MR. MEJIA: Yes, your honor. * * * THE COURT: Has anyone made any promises or threats in order to induce you to change your plea other than what's been indicated on the record with reference to the agreed upon sentence? MR. MEJIA: No. * * * THE COURT: Do you understand that the court will proceed to sentenc- ing after your plea today? MR. MEJIA: Yes. -8- As the above-quoted portion illustrates, the trial court fully complied with the mandates of Crim.R. 11(C). The judge outlined each right, and appellant, through his interpreter, replied that he understood each right. Specifically, the judge inquired whether appellant understood his right to subpoena witnesses to appear and testify on [his] own behalf. Appellant replied that he did. Appellant also contends that since appellant's responses were made through his interpreter, the trial court failed to determine that appellant knowingly and intelligently entered his plea. In support of his position, appellant relies on the case of State v. Pina(1975), 49 Ohio App.2d 394. Appellant maintains that, accord- ing to Pina, responses by the interpreter such as, He under- stands, or, He agrees, are impermissible. Appellant's characterization of Pina is misleading. In Pina, there were three defendants, none of whom spoke English, and the court's questions were presented off the record to all three defendants at once with a single interpreter. Thus, the court found it insufficient when the interpreter reported to the court his conclusion that, They understand, or, They agree. The court concluded that under those conditions, there was a total lack of evidence in the record upon which the court [might] reach a factual conclusion. Pina, supra at 399. The Pinacourt established the correct manner of utilizing an interpreter as follows: While the manner of eliciting the testimony of the witness through an interpreter is within the discretion of the trial court, the proper method is not to address the question to the -9- interpreter but to the witness. The question is then repeated by the interpreter without any remarks of his own, and the answers must be repeated literally by the interpreter in the first person. The interpreter should give the answer, and the whole answer of the wit- ness, adding nothing to it. 58 American Jurisprudence 309, Witnesses, Section 556. The interpreter as well as the witness is subject to cross-examination of the terms and expressions used. 58 American Jurisprudence 365, Witnesses, Section 662. To the same effect is 98 Corpus Juris Secundum 27, Wit- nesses, Section 326. While considerable lati- tude exists as to the method of translation and the refusal of the court to obtain a full translation of the answers of the witness may not necessarily constitute a fatal error, when a plea of guilty is accepted in a criminal case it is our opinion that it is prejudicial error not to require a translation and record of what the defendant says or to accept the conclusion of the interpreter that the message of the court has been conveyed, the defendant understands, and pleads guilty. Under the latter perfunctory method, there is no way by which the court can personally address the defendant and no possibility that the court can find or be factually assured that the defendant understands and knowingly waives and pleads guilty. Id. at 398-399. The record indicates that the trial court in the matter sub judice fully complied with Pina when conversing with appellant through his interpreter. Appellant answered Yes, your Honor when asked whether he understood each of his rights. Considered in context, the single instance that the interpreter translated appellant's response as Yes, he agrees, does not indicate that the interpreter was stating his own conclusion rather than translating what appellant had said. The record illustrates that the trial court complied with both Crim.R. 11(C) and Pina. The judge specifically addressed the -10- requirements of Crim.R. 11(C). Additionally, the court directly addressed appellant, and appellant's interpreter responded with appellant's answers. There was no indication that the interpreter was reciting his own conclusions. Appellant's first and third assignments of error are overruled. Appellant's second assignment of error contends: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW SINCE THE TRIAL COURT FAILED TO COMPLY WITH ORC SEC. 2311.14 AND EVID.R. 604. R.C. 2311.14 provides: (A) Whenever because of a hearing, speech, or other impairment a party to or witness in a legal proceeding cannot readily understand or communicate, the court shall appoint a quali- fied interpreter to assist such person. (B) Before entering upon his duties, the interpreter shall take an oath that he will make a true interpretation of the proceedings to the party or witness, and that he will truly repeat the statements made by such party or witness to the court, to the best of his ability. Evid.R. 604 provides that [a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation. Appellant maintains that the record reveals only that the interpreter was duly sworn but fails to indicate the nature of the oath that was administered. In State v. Rosa (1988), 47 Ohio App.3d 172 at paragraph one of the syllabus, this court held: The requirements of R.C. 2311.14(B) and Evid.R. 604 mandating administration of an oath to an interpreter are waived when there -11- is a failure to object in the trial court to a failure to so administer the oath. Appellant failed to object to the trial court's alleged failure to administer an oath to the interpreter. Therefore, appellant is precluded from now claiming error in this regard. Moreover, the record does indicate that the interpreter was duly sworn. Although the language used in the oath was not included in the record before us, this court will presume regular- ity in the trial court's proceedings. See, e.g., State v. Summers (1981), 3 Ohio App.3d 234, 236, (quoting In re Sublett (1959), 169 Ohio St. 19, 20, `All reasonable presumptions consistent with the record will be indulged in favor of the validity of the judgment or decision under review and of the regularity and legality of the proceeding below.' ). Appellant's second assignment of error is without merit. The decision of the trial court is affirmed. -12- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .