COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59423 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : NORMAN FOSTER : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-243173. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Dennis M. McBride, Esq. 20800 Center Ridge Road, #211 Rocky River, Ohio 44116-4386 -2- SWEENEY, JAMES D., J.: Defendant-appellant Norman Foster ("Foster"), aka Ricky Bishop, appeals from his plea of guilty to drug abuse [R.C. 2925.11]. For the reasons adduced below, we affirm. A review of the record reveals that Foster was indicted on October 2, 1989, on two counts: Count One - knowingly obtain, possess, or use a controlled substance, to-wit: Cocaine, a Schedule II drug, being less than the bulk amount [R.C. 2925.11]; and, Count Two - knowingly prepare for shipment, ship, transport, deliver, prepare for distribution or distribute a controlled substance, to-wit: Cocaine, a Schedule II drug knowing or having reasonable cause to believe such drug was intended for sale or resale by the offender or another [R.C. 2925.03]. Foster plead not guilty at his arraignment on October 11, 1989. Three pre- trials and motion practice were then conducted. On December 4, 1989, in open court with counsel present, Foster withdrew his previous plea of not guilty and entered a plea of guilty to Count One of the indictment. Count Two was nolled at the request of the State and a presentence report was ordered. On January 2, 1990, Foster was sentenced to one year imprisonment plus court costs, sentence to be served concurrently with the sentence imposed in Cuyahoga Common Pleas Court Case Number CR-208362-A. On March 5, 1990, Foster, acting pro se, filed a notice of appeal. Counsel has been assigned to represent Foster on appeal -3- and a delayed appeal has been granted sua sponte. The matter has been submitted for review on the briefs of the parties. Foster presents two assignments of error for review, which will be discussed jointly: I DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. II MANIFEST INJUSTICE WOULD OCCUR IF THE DEFENDANT IS NOT GRANTED A NEW TRIAL. Foster alleges that his trial counsel's representation was ineffective because that counsel did not file a motion to suppress the incriminating evidence provided as a result of an informant's tip to the police which allegedly lacked probable cause. This Court stated the following in State v. Valentine (July 7, 1988), Cuyahoga App. No. 54112, unreported, at pages 3-4: Appellant's guilty plea precludes this court from considering the merits of appellant's arguments. Once a criminal defendant has admitted in open court that he is guilty of the offense with which he is charged, he is prevented from raising independent claims relating to the deprivation of constitutional rights that occurred prior to entry of his guilty plea. Tollett v. Henderson (1973), 411 U.S. 248. Accord, State v. Scates (May 16, 1985), Cuyahoga App. No. 43717, unreported; State v. Weaver (Feb. 23, 1984), Cuyahoga App. No. 47144, unreported; State v. Davis (Feb. 25, 1982), Cuyahoga App. No. 43717, unreported. As explained by the United States Supreme Court in Menna v. New York (1975), 423 U.S. 61, 62 fn. 2: -4- [A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. In the present case, Foster does not allege impropriety in the taking of the guilty plea by the court. Furthermore, a review of the transcript from the hearing at which the guilty plea was entered clearly indicates that Foster was aware of his constitutional rights and the waiver of those rights by his plea of guilty. Foster also specifically stated that he was satisfied with the representation of trial counsel. R. 11. Also, it is equally clear that the court complied with Crim. R. 11 in the taking of the plea. There is no testimony in the transcript of the plea hearing that would indicate that the plea was anything but knowledgeable, understandable and intelligent. Assignments overruled. Judgment affirmed. -5- 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. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY 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. .