COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58978 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : RICHARD GRULY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 10, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-242333 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES JOHN J. RICOTTA Cuyahoga County Pros. 2217 East Ninth Street Justice Center, 8th Floor Suite 100 1200 Ontario Street Cleveland, Ohio 4411 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: The appellant Richard Gruly timely appeals his conviction for grand theft. The appellant assigns two errors that challenges the trial judge's acceptance of his guilty plea without first adhering to the provision of Crim. R. 11. For the reasons set forth below, we affirm and find the trial court's acceptance of the appellant's guilty plea in substantial compliance with Crim. R. 11. The appellant was indicted on October 4, 1989 for theft in violation of R.C. 2913.02 with a violence specification. The indictment alleged that on July 30, 1989 the appellant committed a theft of property valued less than $300.00. Additionally, the indictment contained seven specifications for prior theft offenses that included the violence specification. On October 24, 1989, the appellant and his attorney appeared before the trial judge and entered a plea to the indictment. The appellant's attorney represented to the judge that no threats or promises had been made to the appellant to induce the plea. Thereafter, the prosecutor informed the court that the appellant was charged with theft of a pair of scissors and a garage door opener, the property of Sears department store, and valued less than $300.00. Additionally, the prosecutor informed the court of five of the seven prior theft offenses and the violence specification. The two prior specifications for theft offenses were part of the indictment, therefore there was no plea to those specifications. The remaining specifications as set -3- forth in the furthermore clause of the indictment stated: the appellant was convicted for a prior offense of burglary and grand theft in 1986, for tampering with machine in 1982, for forgery and uttering in 1978, for petty theft in 1980, for forgery and uttering in 1980, and for burglary, a violence specification, in 1986. The trial court placed the appellant under oath and proceeded to inquire of the appellant's understanding of the consequences of his plea. The appellant stated that he was satisfied with his attorney's representation and he was not under the influence of any drug, alcohol or medication that would prevent him from understanding what he was doing. The trial court further explained that it was the appellant's duty to convince the court that he was knowingly and voluntarily entering his plea. The trial court instructed the appellant to interrupt, if there was something he did not understand. The appellant responded in the affirmative that he understood that he was waiving the rights: to a jury trial, trial by the court, to cross-examine witnesses of the state, to bring witnesses to testify on his own behalf, and to have the state prove he is guilty of each and every element of the offense by the standard of proof of beyond a reasonable doubt. The appellant further stated in the affirmative that he understood that the state had the burden of proof and that he was clothed with the presumption of innocence. Finally, the court explained that he had a right to an attorney or to an appointed attorney, -4- if he was unable to afford one; that he had the right to take the stand to testify, and if he chose not to, no one could comment on the fact that he did not testify. The appellant responded "yes" to understanding the following consequences of his plea: Any sentence imposed in this case could be imposed consecutively to a parole violation and that means any sentence reimposed in any prior case; no threats or promises were made on behalf of the court in order to have him enter a guilty plea; entering a guilty plea is an admission of guilt to each and every element of the offense charged; by virtue of his prior history, the offense becomes a felony of the third degree, carrying a possible term of incarceration from two, two and a half, three or four up to ten years and a possible fine of up to $5,000. The appellant represented that: he was entering his plea with a full understanding of the charges against him; he was doing it voluntarily; and his plea is guilty. The trial court accepted the plea and referred the matter to the probation department for a pre-sentence investigation and drug abuse assessment. The appellant was sentenced on November 16, 1989 to the minimum term of incarceration of two to ten years with credit for time served. The appellant assigns the following two errors for our review: -5- THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INFORM AND DETERMINE THAT THE DEFENDANT WAS KNOW- INGLY AND INFORMATIVELY WAIVING HIS CONSTITUTIONAL RIGHT AGAINST COMPULSORY SELF-INCRIMINATION, HIS RIGHT TO COMPULSORY PROCESS OF WITNESSES, AND WHAT THE MAXIMUM PENALTIES FOR THE CHARGES AGAINST THE DEFENDANT WERE. (sic.) THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ACCEPTING THE DEFENDANT'S GUILTY PLEA ON CHARGES THAT RAISED THE DEFENDANT'S ALLEGED CRIME FROM A FOURTH FELONY TO A THIRD DEGREE FELONY WITHOUT THE DEFENDANT ADMITTING THE UNDERLYING OFFENSES. Both assignments of error one and two raise questions regarding the trial judge's compliance with Crim R. 11 and for that reason they will be discussed jointly. The appellant argues in his first assignment of error that the trial judge failed to comply with Crim R. 11(C) when the trial court did not inform the appellant of his right to subpoena or compel witnesses on his behalf and that he could not be compelled to testify; he also argued that the explanation of the maximum penalties should have included an explanation of the difference between consecutive and concurrent sentences as it relates to his being on parole. We disagree. Crim. R. 11(C) provides: 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; (a) Determining that he is making the plea voluntarily, with the 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. -6- (c) Informing him and determining that he under- stands 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. The Ohio Supreme Court, in State v. Carter (1979), 60 Ohio St. 2d 34 and State v. Stewart (1977), 51 Ohio St. 2d 86, has expressed some very clear rules on when Ohio Criminal Rule 11(C)(2) has been compiled with, as well as when a criminal defendant has adequately been informed of the nature of the charges against him. In Stewart, the Ohio Supreme Court established that an evaluation of the circumstances of the case is necessary to determine if there has been substantial compliance with Criminal Rule 11. Citing United States v. Brogan (C.A. 6, 1975), 519 F.2d 28, the Ohio Supreme Court advocates the rule that substantial compliance with Ohio Criminal Rule 11(C) is sufficient. The Court also cites the comment in Brogan that rote recitation of the rule was not necessary, because of the belief that we have not yet reached the state where courts will require the parroting of any rule. The conversation need only be "reasonably intelligible" to meet the standard. State v. Ballard (1981), 66 Ohio St. 2d 473. In his first assignment of error the appellant argues that the trial court did not inform the appellant of his right to subpoena or compel witnesses on his behalf and that he could not be compelled to testify; he also argued that the explanation of -7- the maximum penalties should have included an explanation of the difference between consecutive and concurrent sentences as it relates to his being on parole. We disagree. A careful review of the record reveals that the trial court, in a reasonably intelligible manner, informed the appellant of his right to subpoena witnesses on his own behalf and that he could not be compelled if he chose not to testify. See, Ballard, supra. Additionally, the trial court explained to the appellant that his sentence in the present case would be "after any sentence reimposed in any prior case." These explanations are sufficient and satisfies the substantial compliance test. Furthermore, when the court informs the appellant of his constitutional rights and the consequences of his plea, a subsequent waiver of those rights and a plea is deemed voluntary unless prejudice is shown. State v. Stewart, supra. The appellant in this case failed to show any prejudice. Therefore, the appellant's first assignment of error is not well taken. In his second assignment of error the appellant argues that the trial court is required to obtain an admission to the underlying clause that raises the offense from a felony of the fourth degree to a felony of the third degree. We disagree. Substantial compliance does not require an explanation of each and every element or portion of the indictment. State v. Rainey (1982), 3 Ohio App. 3d 441. Substantial compliance allows -8- the trial court to infer from the "totality of the circumstances" that the defendant understood the charges against him. Id. at the syllabus, paragraph one. In the instant case, most of the indictment was read aloud during the hearing, including the violence specification, and the appellant acknowledged that he understood what had been read. He was informed of the maximum penalty for a felony of third degree and did not contest the validity of any of the furthermore clauses or the violence specification. Applying the totality of the circumstances test to this case, we conclude that the appellant understood the charges. Therefore, the appellant's second assignment of error is not well taken. -9- 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 Common Pleas Court 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. KRUPANSKY, C.J., and ANN MCMANAMON, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .