¶1 dissenting.
¶2 I am compelled to respectfully dissent from the majority in this case. Although I do agree that the “substantial compliance” standard of State v. Stewart (1977), 51 Ohio St.2d 86, 5 O.O.3d 52, 364 N.E.2d 1163, is the correct standard for the court to apply to determine whether the defendant understood the charges against him or the penalty to be imposed upon the court’s acceptance of the plea as required by Crim.R. 11(C)(2)(a) and (b), I believe that Stewart is not the correct standard to be used in the case sub judice. The majority here is relying on a standard which was merely put forth in a footnote in State v. Sturm (1981), 66 Ohio St.2d 483, 20 O.O.3d 403, 422 N.E.2d 853. The Sturm court, without analysis of the importance of the defendant’s right to have the state prove guilt beyond a reasonable doubt, simply noted that this right, because it is not required by Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, should be tested by the Supreme Court’s cases interpreting Crim.R. 11(C). The Sturm court did not address the fact that the Stewart standard was not applied to the rights of the defendant enumerated in Crim.R. 11(C)(2)(c).
¶3 I believe that, where the court has failed to apprise the defendant of his right to have the state find him guilty beyond a reasonable doubt, the appropriate test to be used by our court when determining whether the trial court complied with Crim.R. 11(C)(2)(c) when accepting a guilty plea should be the same test as required by the court in Boykin.
¶4*408 Crim.R. 11(C)(2)(c) contains two enumerated rights which the Boykin court did not address: first, the right to have compulsory process for obtaining witnesses in his favor (which is an enumerated constitutional right in the Sixth Amendment) and, second, the right to have the state prove guilt “beyond a reasonable doubt.” In response to the omission in the Boykin opinion of the right to have “compulsory process,” our Supreme Court stated, in State v. Ballard (1981), 66 Ohio St.2d 473, 477, 20 O.O.3d 397, 399-400, 423 N.E.2d 115, 118, fn. 4:
“[I]t may be noted that Boykin did not mention the right of the defendant to have compulsory process of witnesses to testify on his behalf. However, as the right is guaranteed by the Sixth Amendment to the United States Constitution, and like those mentioned in Boykin is a trial right, we hold that the defendant must also be informed of his right to compulsory process.”
¶5 The second right found in Crim.R. 11(C)(2)(c) which the court in Boykin did not address is the one at issue here — the trial right that requires the state to prove the defendant’s guilt beyond a reasonable doubt.
¶6 The “reasonable doubt standard” is an essential trial right which reaches constitutional stature. As the Supreme Court held in In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375, “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In trial, this important right is always explained to the jury by a verbatim reading of the statutory definitions.
¶7 As Judge Mahoney stated in his dissent in State v. Teter (Sept. 5,1990), Wayne App. No. 2543, unreported, 1990 WL 129246:
“I personally fail to see how our Supreme Court can require that a defendant be informed in an intelligent manner as to four of the constitutional rights set forth in Rule 11 but only a ‘substantial compliance’ standard as to the fifth constitutional right set forth in Rule 11. This is an anomaly. Additionally, the latter standard requires a showing of prejudice by the omission to inform whereas the former does not. It is incongruous. In this case, there was a complete omission to reasonably inform the defendant of the state’s burden of proof beyond a reasonable doubt. This requires reversal per se in my opinion.”
¶8 In order to knowingly, intelligently and voluntarily give up a right, a defendant must know that he has that right and what it is. The right at issue here, to have the state prove guilt beyond a reasonable doubt, while not a constitutional right as those enumerated in Boykin or Ballard, is a statutory right which reaches constitutional stature and is embedded within the constitutional trial rights in *409 Crim.R. 11(C)(2)(c). This right is the only right included in the statute which is not a constitutional right.
¶9 I believe that for a guilty plea to be determined to have been voluntarily and intelligently entered, a defendant must be informed that he is waiving important trial rights. The rule mandates that the court inform the defendant of his trial rights and determine that he understands these rights and that he is waiving these rights. Where the court fails to address each of the trial rights enumerated, it cannot be said that the court has explained the rights in a manner reasonably intelligible to the defendant. Therefore, where, as here, the court entirely omits an important trial right when addressing the defendant upon the acceptance of a plea, I believe that the court has failed to comply with the mandate of Crim.R. 11(C)(2)(c), which demands that the court “shall not accept such a plea without first addressing the defendant personally and … informing him of and determining that he understands that by his plea he is waiving his right … to require the state to prove his guilt beyond a reasonable doubt at … trial … (Emphasis added.)
¶10 For the reasons stated above, I believe that the issue in this case raises a substantial constitutional question and concerns a question of public and great general interest which should be called to the attention of our Ohio Supreme Court.
¶11 Accordingly, I would vacate the plea and remand this case to the court below.