COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59237, 59238 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : MUTAWALLY SALEEM : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 31, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case Nos. 238524 and 235785 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Kenneth L. Mitchell Cuyahoga County Prosecutor 25301 Euclid Avenue By: Robert F. Coury Suite 110 Assistant Prosecuting Attorney Euclid, Ohio 44117-2609 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: Mutawally Saleem was indicted for breaking and entering (R.C. 2911.13), vandalism (R.C. 2909.05) and possession of criminal tools (R.C. 2923.24) in common pleas case no. 235785. He subsequently was indicted for aggravated burglary (R.C. 2911.11) and theft (R.C. 2913.02) in common pleas case no. 238524. Plea discussions on both indictments ensued, and Saleem entered guilty pleas to breaking and entering, burglary and theft. In exchange for the pleas, the state agreed to enter a nolle prosequi on the remaining counts and amend the aggravated burglary count to burglary. In consolidated and delayed appeals Saleem raises four assignments of error/1\. We affirm. In his first assignment, claims a denial of due process because only one of his two trial attorneys was present at sentencing. Saleem had separate counsel in each of his cases. The record demonstrates both attorneys were present when Saleem entered his guilty pleas, but only one of these lawyers represented the defendant at the sentencing hearing. Saleem contends that, pursuant to Crim. R. 32, he was entitled to the presence of both attorneys. Crim. R. 32 provides, in pertinent part: "(1) Imposition of sentence. *** Before imposing sentence the court shall afford counsel an opportunity /1\ See Appendix. - 2 - to speak on behalf of the defendant, and shall also address the defendant personally and ask him if he wishes to make a statement in his own behalf or present any information in mitigation of punishment." This rule requires that the court afford counsel and the defendant an opportunity to speak before sentencing. See State v. Davis (1983), 13 Ohio App. 3d 265, 268-269. The rule does not mandate that, in every instance where a defendant is represented by different attorneys in cases joined for sentencing, each attorney be present. Saleem's reliance on Gideon v. Wainwright (1963), 372 U.S. 333 is misplaced. Unlike Saleem, the defendant in Gideon was denied any legal representative. In the instant case, the court announced it would proceed to sentence in both cases. Defense counsel asked the court to consider placing Saleem on probation and indicated the defendant did not have a history of violence. The attorney also stated Saleem held a license as a boilermaker. We note the defendant voiced no complaint that his other defense attorney was not present. Saleem fails to demonstrate any prejudice from the absence of his second lawyer. He argues the court's mistaken reference to the theft count in case no. 238524 as a breaking and entering charge prejudiced him and that, if counsel for that case had been present, the attorney would have corrected the court. The trial judge did not confuse the counts during the taking of the guilty pleas and, despite the misstatement at sentencing, the court informed Saleem of the proper sentence. - 3 - Accordingly, we overrule this assignment of error. In his second assignment of error Saleem asserts a denial of his right to effective assistance of counsel during the taking of his guilty pleas. Specifically, Saleem argues his counsel failed to ensure the pleas were entered knowingly and voluntarily. The defendant's third assignment also challenges the voluntariness of the plea. We will address these arguments concurrently. The federal test for determining if a defendant was denied effective assistance of counsel is whether the attorney's "conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland v. Washington (1984), 466 U.S. 688. In Ohio, the test is whether the defendant, under all circumstances, had a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St. 2d 71, paragraph four of the syllabus. To prove a claim of ineffective assistance of counsel, the defendant must demonstrate his attorney's performance was deficient and "that there exists a reasonable probability that, were it not for counsel's error, the result of the trial would have been different." State v. Bradley (1989), 42 Ohio St. 3d 136. Crim. R. 11(C)(2)(a) prohibits a court, in felony cases, from accepting a guilty plea without personally addressing the - 4 - defendant and determining whether the plea is voluntarily made with an understanding of the nature of the charges, the maximum penalty involved and, if applicable, the defendant's ineligibility for probation. Substantial compliance with the rule is sufficient for a guilty plea to be valid. State v. Stewart (1977), 51 Ohio St. 2d 86. Saleem argues the court failed to explain adequately his eligibility for probation on the burglary count. Crim. R. 11(C)(2)(a) only requires the court to inform the defendant if he is ineligible for probation. Burglary is an aggravated felony of the second degree. R.C. 2911.12(B). As long as a defendant previously has not been convicted of an aggravated felony of the first, second or third degree, a court is not required to sentence the defendant to an actual sentence. R.C. 2929.11(B)(2)(a). Saleem's indictment did not contain a specification that he previously had been convicted of an aggravated felony and, thus, the court was not required to impose a mandatory sentence under R.C. 2929.11(B)(2)(a). Thus, Crim. R. 11 did not mandate the court inform Saleem he was ineligible for probation. We note, however, the court told the defendant he intended to sentence him to a mandatory term of incarceration and the defendant acknowledged that he understood the meaning of "mandatory." Saleem also argues the court's comments at the guilty plea hearing resulted in a coerced plea. In assessing the voluntariness of a plea, we are required to scrutinize carefully - 5 - any participation by the trial court in the plea bargaining process. State v. Byrd (1980), 63 Ohio St. 2d 288, syllabus. If the court's active participation "could lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the judge would be biased against him at trial, the plea should be held involuntary." Id. at 293-294. Saleem cites the following comments by the court: "There's a number of things that the Court takes into consideration in terms of what sentence to impose. It takes into consideration your prior record, the gravity of the offense, the nature of the offenses. The Court takes into consideration your attitude, whether or not you're the kind of person who is interested in rehabilitating himself, making the best of your situation, taking your poison or your medicine, and trying to turn your life around. One who wants to turn their life around is the kind of person that the system is interested in treating with more leniency. One who doesn't want to turn their life around, who insists and persists in criminal behavior, is less likely to get leniency from the system. "*** "Now, you have a duty to yourself to cut your losses. There is a time to hold them. There is a time to fold them. And you have to make an intelligent decision as to whether or not you should hold them or fold them. "Do you understand what I mean, sir?" (Tr. 11-13). The defendant also complains because the court referred to the prosecutor's summary of the facts underlying the charges as "evidence." The challenged comments, when read in context, demonstrate the court was explaining the factors he considers in imposing - 6 - sentence, advising the defendant to evaluate his options rationally and to make a decision based upon his best interests. The court did not comment upon the strength of the state's case or in anyway imply trial would be futile. Further, the court recessed for approximately twenty minutes to allow the defendant to confer with both his attorneys before entering the plea. Thus, we reject the defendant's arguments. The second and third assignments of error are overruled. In his fourth assignment of error Saleem claims that inaccuracies in the trial record have compromised his right to appeal. To support his position, the defendant attached an affidavit to his appellate brief outlining the alleged inaccuracies. It is well established that exhibits attached to a brief are not properly a part of the appellate record. See Mancino v. Lakewood (1987), 36 Ohio App. 3d 219; Hickman v. Ford Motor Co. (1977), 52 Ohio App. 2d 327. Further, an appellate court will not consider matters not included in the trial court proceedings. See State v. Ishmail (1978), 54 Ohio St. 2d 402, syllabus paragraph one. Thus, we are precluded from addressing Saleem's arguments. This assignment is overruled and the judgment of the trial court is affirmed. 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. NAHRA, PRESIDING JUDGE and BLACKMON, J., CONCUR JUDGE ANN McMANAMON 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. - 8 - APPENDIX Appellant's assignments of error are: I "The trial court erred in sentencing appellant for the wrong crime and appellant was thereby denied due process of law; Criminal Rule 32(A) was not complied with and appellant was not represented at sentencing by both of his attorneys although appellant was sentenced in two separate cases involving three crimes to which appellant plead [sic] guilty." II "Counsel for appellant was ineffective and insufficient in that said appellant did not knowingly, intelligently and voluntarily make and enter guilty pleas." III "The trial court prejudicially erred in pretrial proceedings and denied appellant due process of law." IV "The record (transcript) of this case is incorrect as evidenced by the affidavit of appellant's trial court defense attorney Kalam Muttalib and, as such, the appellant has been denied due process of law. The amended brief of appellant is necessitated due to this assignment of error." .