COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59164 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROBERT W. MINNIEFIELD : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-234764. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert W. Minniefield, pro se Serial No. 212-907 Grafton Correctional Inst. 1800 S. Avon Belden Road Grafton, OH 44044 -2- MATIA, P.J.: Defendant-appellant, Robert Wesley Minniefield, appeals from his plea of guilty to the offenses of involuntary manslaughter and aggravated robbery with a firearm specification. This appeal is not well taken. I. THE FACTS A. THE APPELLANT'S INVOLVEMENT IN AN AGGRAVATED MURDER On December 18, 1988, the appellant while in the company of his brother, Robert A. Minniefield, and William Cousin, attempted to rob William Childs of his money. William Childs resisted the robbery attempt and was shot and killed by Robert A. Minniefield. The appellant and his two cohorts subsequently attempted to rob Kelly Spiegan. B. THE INDICTMENT OF THE APPELLANT On December 29, 1988, the appellant was indicted by the Grand Jury of Cuyahoga County for one count of aggravated murder in violation of R.C. 2903.01 with a felony murder specification and a firearm specification, three counts of aggravated robbery in violation of R.C. 2911.01 with firearm specifications, one count of possessing criminal tools in violation of R.C. 2923.24 with a violence specification and a firearm specification, one count of possession of cocaine in violation of R.C. 2925.11 and one count of felonious assault in violation of R.C. 2903.11 with a firearm specification. -3- C. THE ARRAIGNMENT OF THE APPELLANT On January 12, 1989, the appellant was arraigned whereupon a plea of not guilty was entered to all seven counts of the indictment. D. THE APPELLANT'S CHANGE OF PLEA On June 7, 1989, the appellant retracted his plea of not guilty and entered a plea of guilty, pursuant to Crim. R. 11(C), to one count of aggravated robbery with a firearm specification and one count of involuntary manslaughter. The remaining counts of the indictment were nolled by the court. E. THE SENTENCE OF THE TRIAL COURT On June 27, 1989, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio, for a term of ten years to twenty-five years with regard to the offense of aggravated robbery and a term of ten years to twenty-five years with regard to the offense of involuntary manslaughter. In addition, the trial court imposed a three year term of actual incarceration with regard to the firearm specification. The terms of incarceration were ordered to be served concurrent with each other. F. THE APPELLANT'S DELAYED APPEAL Thereafter, the appellant brought a delayed appeal from his plea of guilty to the offenses of aggravated robbery with a firearm specification and involuntary manslaughter. -4- G. THE EXTRAPOLATED ASSIGNMENTS OF ERROR The appellant, in his appellate brief, has failed to articulate any specific assignments of error as mandated by App. R. 12(A) and App. R. 16(A). Close scrutiny of the appellant's brief, however, reveals that argument has been set forth by the appellant with regard to the issues of a defective plea of guilty and ineffective assistance of counsel. Therefore, this court shall review the instant appeal on the basis of the following two assignments of error as garnered from the appellant's brief: 1) "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS A RESULT OF THE TRIAL COURT'S ACCEPTANCE OF A PLEA OF GUILTY WHICH WAS NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY MADE BY THE APPELLANT." 2) "THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD TO THE PLEA OF GUILTY." II. THE FIRST EXTRAPOLATED ASSIGNMENT OF ERROR The appellant's initial assignment of error, as extrapolated from the appellant's brief, is that: "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS A RESULT OF THE TRIAL COURT'S ACCEPTANCE OF A PLEA OF GUILTY WHICH WAS NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY MADE BY THE APPELLANT." A. ISSUE RAISED: PLEA OF GUILTY WAS DEFECTIVE The appellant, through his initial assignment of error as extrapolated from the appellant's brief, argues that his plea of guilty failed to comply with the mandates of Crim. R. 11(C). Specifically, the appellant argues that his plea of guilty was -5- not a voluntary, knowing and intelligent waiver of his constitutional rights. The appellant's initial extrapolated assignment of error is not well taken. B. CRIM. R. 11(C) AND PLEA OF GUILTY Crim. R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense, provides that: "(1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. "(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: "(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." -6- C. PLEA OF GUILTY REQUIRES AN ORAL DIALOGUE BETWEEN THE DEFENDANT AND THE TRIAL COURT The Supreme Court of Ohio has established that Crim. R. 11(C) requires that an oral dialogue occur between the trial court and the defendant in order to properly determine whether the appellant fully comprehends the consequences of his plea of guilty. "Adherence to the provisions of Crim. R. 11(C)(2) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest." State v. Caudill (1976), 48 Ohio St. 2d 343, paragraph two of the syllabus. D. APPELLANT'S PLEA OF GUILTY AND WAIVER OF CONSTITUTIONAL GUARANTEES A review of the guilty plea entered by the appellant on June 7, 1989, reveals the following: 1) the appellant was advised by the trial court of the terms of incarceration which could be imposed with regard to the offenses of involuntary manslaughter and aggravated robbery with a firearm specification; 2) the appellant acknowledged a complete understanding of the effect of the plea of guilty and further acknowledged his confidence in his appointed defense counsel; 3) the appellant acknowledged that no threats or promises had been made with regard to the plea of guilty; -7- 4) the appellant acknowledged waiver of his right of proof beyond a reasonable doubt, the right to confront all witnesses, the right to subpoena witnesses and the right to refuse to testify; and 5) the appellant was informed of the nature of the pending offenses of involuntary manslaughter and aggravated robbery with a firearm specification. E. APPELLANT'S PLEA WAS VOLUNTARY, KNOWING AND INTELLIGENT In the case sub judice, a review of the record demonstrates that the appellant made a voluntary, knowing and intelligent waiver of his constitutional rights. Clearly, the trial court did comply with the mandates of Crim. R. 11(C) in accepting the appellant's plea of guilty. Therefore, the appellant's first extrapolated assignment of error is not well taken. III. THE SECOND EXTRAPOLATED ASSIGNMENT OF ERROR The appellant's second assignment of error, as extrapolated from the appellant's brief, is that: "THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WITH REGARD TO THE PLEA OF GUILTY." A. ISSUE RAISED: DEFENSE COUNSEL WAS INEFFECTIVE The appellant, in his second extrapolated assignment of error, argues that he was denied effective assistance of counsel as a result of his plea of guilty. Specifically, the appellant argues that counsel "failed to create and provide an adequate defense on his behalf." -8- The appellant's second extrapolated assignment of error is not well taken. B. STANDARD OF REVIEW FOR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St. 3d 98; Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In addition, this court must accord deference to defense counsel's strategic choices as made prior to and during the course of all legal proceedings. C. APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL Herein, a review of the record fails to disclose that the performance of defense counsel was seriously flawed and deficient. To the contrary, the removal of the appellant from exposure to the penalty of death clearly benefited the appellant and does not reflect flawed and deficient conduct. In addition, the appellant himself acknowledged that his plea of guilty was a voluntary, knowing and intelligent decision. -9- Thus, the appellant was not denied effective assistance of counsel and the appellant's second extrapolated assignment of error is not well taken. Judgment affirmed. Judgment affirmed. 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. JAMES D. SWEENEY, J., and PETER C. ECONOMUS, J. CONCUR. (Judge Peter C. Economus of the Mahoning County Common Pleas Court, sitting by assignment.) DAVID T. MATIA PRESIDING 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. .