COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59452 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BRIAN BERNARD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 5, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-238716 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES ROBERT J. CHURILLA, ESQ. CUYAHOGA COUNTY PROSECUTOR 5706 Turney Road MARY E. PAPCKE, ASST. Suite 207 Justice Center - 8th Floor Garfield Heights, Ohio 44125 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Defendant Brian Bernard appeals from his pleas of guilty to selling cocaine, felonious assault, and carrying a concealed weapon. For the reasons set forth below, we affirm. I. On April 7, 1989, Cleveland Heights Police Officers on a surveillance assignment at Euclid Heights Boulevard observed defendant sell suspected cocaine to another man then get into a vehicle. Thereafter, according to the evidence disclosed at the preliminary hearing held in connection with this matter, the officers moved in to arrest defendant and as an unmarked vehicle approached defendant's vehicle head on, defendant drove his vehicle in reverse into a second unmarked vehicle, then accelerated forward into a marked police cruiser. Defendant attempted to exit his vehicle following the second collision, and as he did so, he reached for a loaded handgun within the vehicle then pointed it at the officers. Defendant was apprehended, however, and the arresting officers recovered three packets of cocaine from defendant, and a larger quantity was recovered from the man seen earlier with defendant. Defendant was subsequently indicted pursuant to a ten count indictment which charged defendant as follows: - 3 - Count one: selling cocaine in an amount equal to or exceeding three times the bulk amount, in violation of R.C. 2925.03. Count two: permitting a motor vehicle to be used for the commission of a felony drug abuse offense, in violation of R.C. 2925.13. Count three: carrying a concealed weapon, in violation of R.C. 2923.12. Count four: possession of cocaine, in violation of R.C. 2925.11. Count five: possession of criminal tools, in violation of R.C. 2923.24. Counts six, seven and eight: felonious assault in violation of R.C. 2903.11, with violence and peace officer specifications (stemming from defendant's operation of his vehicle). Counts nine and ten: felonious assault, in violation of R.C. 2903.11, with violence, peace officer, and firearm specifications (stemming from defendant's handling of the firearm). Thereafter, on June 21, 1989, the state and the defense reached a plea agreement and defendant pleaded guilty to count one, which was amended to indicate a lesser amount of cocaine, and counts three, seven, and eight. At these proceedings, the prosecuting attorney explained that the collisions occurred as - 4 - the defendant "tried to also assault the officers using the vehicle in order to get away," (Tr. 15-16), and defendant and his counsel stated as follows: "[Defendant:] *** Well, the police officer, you know, it was an accident, ran in the back of my car. "*** "[Defense Counsel:] *** The way the Court is phrasing it, whether he knew he was going to hurt somebody or not. No, he didn't know he was going to hurt somebody. Whether his conduct was likely to have caused, when we discussed it he explained that. I think that he knew his actions might have caused something, but he didn't intentionally do it. "[Defendant:]Yeah." (Tr. 17, 20) Defendant now appeals, challenging the validity of his pleas and the efficacy of his representation. II. In his first assignment of error, defendant claims that his pleas to the charges of felonious assault were not voluntary because, he claims, he asserted his innocence to these charges during the plea proceedings. With respect to guilty pleas which are accompanied by protestations of innocence, we note that the United States Supreme Court, in North Carolina v. Alford (1970), 400 U.S. 25, 37, held that an individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a - 5 - prison sentence even if he is unable or unwilling to admit his participation in the acts constituting the crime. The Court further held that such pleas may be intelligently entered where there is a factual basis for the plea which negates the claim of innocence. Id. at 37-38. This court has applied the pronouncements of North Carolina v. Alford, supra, and has held that, depending upon the facts surrounding the charge, there may be a determination that the accused has made an intelligent, voluntary plea. Cf. State v. Casale (1986), 34 Ohio App. 3d 339, 340; State v. Coleman (July 16, 1987), Cuyahoga App. 52462, unreported; State v. Reeder (March 17, 1988), Cuyahoga App. 52508, unreported; State v. Preston (February 2, 1989), Cuyahoga App. 55036, unreported. Finally, with respect to the offense of felonious assault, we note that R.C. 2903.11 defines this offense as follows: "(A) No person shall knowingly: "(1) Cause serious physical harm to another; "(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code." (Emphasis added.) Pursuant to R.C. 2901.22, "(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." - 6 - "Knowledge" is cast in terms of an awareness of the probability that one's conduct will cause a certain result. State v. Smith (Feb. 27, 1986), Cuyahoga App. Nos. 50259 & 50280, unreported at 11. It is not necessary for the state to prove that appellant acted with purpose or intent to convict him for a crime based upon knowledge as defined in R.C. 2921.01(B). State v. Bissantz (1982), 3 Ohio App. 3d 108, 111; State v. Linson (October 9, 1989), Cuyahoga App. No. 56100, unreported. Moreover, an automobile, when used in a manner likely to produce death or great bodily harm, can be classified as a "deadly weapon", under R.C. 2903.11(A)(2). Id.; State v. Orlett (1975), 44 Ohio Misc. 7, 9. Thus, felonious assault has been established where the accused strikes a police car during a high speed chase, yet claims he was merely attempting to flee, see State v. Townsend (Feb. 22, 1990), Cuyahoga App. 56571, unreported, and has also been established where the accused accelerates toward a police officer, but claims to have done so without the requisite mental state. See State v. Buford (July 12, 1990), Cuyahoga App. 57213, unreported. Applying the foregoing, we conclude that defendant's guilty pleas to the charges of felonious assault were voluntarily and intelligently entered, as the factual basis presented in connection with the pleas negated defendant's claim of innocence. That is, even assuming that defendant's claim that the collisions - 7 - were unintentional may be credited in light of the fact that defendant drew a weapon on the officers immediately thereafter, we find that the record proceedings clearly demonstrate that defendant knowingly operated his vehicle in a manner which could cause the death of the occupants of both vehicles. Defendant's first assignment of error lacks merit. III. In his second assignment of error, defendant claims that he was denied effective assistance of counsel because, he claims: A) he was not guilty of felonious assault as the collisions were unintentional and did not cause serious physical injury; B) he was not guilty of carrying a concealed weapon because the weapon was visible when aimed at the officers; and C) there was not overwhelming evidence that defendant sold cocaine as alleged. In Strickland v. Washington (1984), 466 U.S. 668, the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 687-688. Second, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. This same standard applies to ineffective assistance claims which arise from guilty pleas. State v. Arvantis (1986), 36 Ohio - 8 - App. 3d 213, 217. Thus, it will be applied to the claims raised herein. A) Felonious Assault As noted in our disposition of defendant's first assignment of error, there was a sufficient factual basis to establish felonious assault, notwithstanding defendant's claim that the collisions were unintentional. In addition, the factual basis clearly indicates that the occupants of two vehicles suffered physical harm as the result of defendant's conduct operation of his vehicle. (Tr. 20) Accordingly, there is nothing in the record to credit defendant's claim that his counsel was ineffective in connection with this offense. B) Carrying a Concealed Weapon As to defendant's claim that the gun was not concealed when it was aimed at the officers, we note that there is no evidence that the gun was visible prior to this time. Accordingly, we cannot conclude that counsel's conduct fell below reasonable standards in connection with this offense. C) Drug Law As to defendant's claim that the evidence on this charge was not overwhelming, we note that this is not the standard by which counsel's performance must be evaluated. Moreover, defendant admitted on the record that he sold an ounce, or over 30 grams, of cocaine. (Tr. 16) Thus, there is no basis for concluding - 9 - that counsel was ineffective, especially in light of the fact that he obtained the dismissal of six charges. Defendant's second claim lacks merit. Judgment affirmed. - 10 - 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 Court of Common Pleas 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. BLANCHE KRUPANSKY, C.J., and PATTON, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .