COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59062 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION SHELVIE E. HINZMAN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-234625 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public JAMES VALENTINE Defender Assistant Prosecuting Attorney ROBERT M. INGERSOLL, ESQ. The Justice Center Assistant Public Defender 1200 Ontario Street The Marion Building Cleveland, Ohio 44113 Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 1 - HARPER, J.: Defendant-appellant, Shelvie Hinzman, was indicted for felonious assault, a violation of R.C. 2903.11, on February 10, 1989. The one count indictment contained peace officer and violence specifications. Appellant withdrew his previously entered not guilty plea and entered a plea of guilty to felonious assault on July 7, 1989. Appellant responded "No, sir" to the trial court's question, "Are you under the influence of any alcohol or indictment, deleting the peace officer specification contained in the original indictment. The trial court accepted the guilty plea and sentenced appellant to a term of five (5) years to fifteen (15) years. Appellant now appeals from the judgment and sentence rendered against him on August 16, 1989. For our review, appellant asserts the following assignment of error: "SHELVIE HINZMAN HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION FOR FELONIOUS ASSAULT, WHICH WAS THE RESULT OF AN UNINFORMED GUILTY PLEA AND NOT THE PRODUCT OF A KNOWING WAIVER OF HIS CONSTITUTIONAL RIGHTS." Specifically, appellant contends that the trial court violated Crim. R. 11(C) by 1) failing to inform appellant that a plea would waive his constitutional rights, and 2) misinforming him of the penalty resulting from the guilty plea. - 2 - Crim. R. 11(C) was adopted in order to safeguard a defendant's constitutional rights provided for in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. A defendant must be personally advised by the trial court of his constitutional rights and must waive these rights voluntarily and intelligently prior to the court's acceptance of a guilty plea. Boykin v. Alabama (1969), 395 U.S. 238; McCarthy v. United States (1969), 394 U.S. 459; State v. Caudill (1976), 48 Ohio St. 2d 342, 470. Compliance with Crim. R. 11(C) provisions also provides an adequate record for review when it must be determined if a defendant voluntarily and intelligently waived his constitutional rights. State v. Stone (1975), 43 Ohio St. 2d 163, 167. In Boykin v. Alabama, supra, the United States Supreme Court held that the record must show that a defendant voluntarily and intelligently waived the privilege against self-incrimination, the right to trial by jury, and the right to confront one's accusers. Id. at 243. A trial court, in addition to the constitutional duty to inform, is required to inform the defendant of certain other matters before accepting the guilty plea pursuant to Crim. R. 11(C). State v. Johnson (1988), 40 Ohio St. 3d 130, 132-133, certiorari denied (1989), 489 U.S. 1098. Specifically, Crim. R. 11(C)(2) requires: "'(2) 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: - 3 - "'(a) Determining that he is making the plea voluntarily, with 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. "'(c) Informing him and determining that he understands 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.'" A reviewing court must find that the trial court did not substantially comply with Crim. R. 11 prior to vacating a defendant's guilty plea. State v. Nero (1990), 56 Ohio St. 3d 106, 108, citing State v. Stewart (1977), 51 Ohio St. 2d 86. A trial court substantially complies with Crim. R. 11 where, under the totality of the circumstances, the defendant subjectively understands the rights he is waiving and the consequences of the plea. State v. Stewart, supra. A defendant must also demonstrate a prejudicial effect when arguing that he did not knowingly, intelligently and voluntarily enter a guilty plea. Id. at 93. In the case sub judice, the trial court directly addressed the appellant at his plea hearing. A portion of their colloquy follows: "THE COURT: You should understand further that you are under no obligation to plead guilty. If you wished, you can maintain your not guilty plea. You may have a trial on the charges contained in the - 4 - indictment, a trial before the judge or before a jury; do you understand this right? "THE DEFENDANT: Yes. "THE COURT: You have trial rights. I'll explain them to you. "The prosecutor at a trial is obliged to prove your guilt beyond a reasonable doubt. In his efforts to do this, he would produce witnesses whom you have a right to confront and through your counsel cross- examine. You may have witnesses subpoenaed in your own favor. You personally may testify. You may exercise your constitutional privilege and refuse to testify, to which fact the prosecutor may not comment. "Do you understand these rights? "THE DEFENDANT: Yes." Appellant's contention that the trial court did not literally inform him that he would be "waiving" his right to a trial and all those rights accompanying a trial by entering a guilty plea is therefore, true. However, this court has previously held that the word "waiver" need not be used by a trial court as long as the defendant was informed that rather than plead guilty, he could retain these rights. State v. Boysaw (Apr. 16, 1987), Cuyahoga App. No. 52052, unreported, 5. See also, State v. Valentine (May 28, 1987), Cuyahoga App. No. 51929, unreported, 4. Here, the trial court informed appellant that he did not have to plead guilty. Appellant was told that he had a right to trial by jury, or before a judge, a right to confront and cross- examine witnesses, a right to subpoena witnesses, and a right to testify or to be silent. Appellant was also told that the state had the burden of proving guilt beyond a reasonable doubt. - 5 - Appellant conceded his understanding of all of these rights. Although the trial court did not expressly state that appellant would "waive" these rights, appellant was informed of his right to retain them rather than plead guilty. Appellant's next contention is that he did not have a full understanding of the consequences of his guilty plea. Appellant was first told that he was charged with causing physical harm to a police officer, felonious assault. Appellant asserts that he was then misled into believing that he would be sentenced to a minimum term of three (3) years as a result of the guilty plea. This misunderstanding stems from the trial court's statement regarding appellant's possible sentence. "THE COURT: This offense is probationable. Also carries three to fifteen years in jail. Do you understand that range of penalty? "THE DEFENDANT: Yes." The "range of penalty" was a compilation of the prosecutor's explanation of possible penalties, said explanation taking place in appellant's presence. "THE PROSECUTOR: *** As amended, this is a straight felonious assault, an aggravated felony of the second degree, carrying a possible term of incarceration of two, three, four, five, six, seven, eight years on the minimum end and up to a maximum of fifteen years and/or a fine of up to $2,500. It is a probationable offense." Initially, it is noted that Crim. R. 11(C)(2)(a) requires the defendant to learn of maximum penalties. See State v. Gibson (1986), 34 Ohio St. 3d 146. Appellant additionally acknowledged at the plea hearing that he was not promised anything in regards - 6 - to penalty. The record does not reveal any evidence of "misleading the appellant". It does reveal that the appellant was fully apprised of the possible sentence and thus the consequences of his guilty plea. Based on the totality of the circumstances, this court finds that the trial court substantially complied with Crim. R. 11(C). The appellant was made aware of the rights available to him if he chose to plead not guilty and of the appropriate sentence if he proceeded to plead guilty. Accordingly, appellant's assignment of error is overruled. Judgment affirmed. - 7 - 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. PATTON, P.J., and BLACKMON, J., CONCUR. SARA J. HARPER 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .