COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59478 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION ARCHIE LEAK : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 21, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 245704 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Wendy I. Wills Cuyahoga County Prosecutor 1070 Statler Office Tower By: Donald Robinson 1127 Euclid Avenue Assistant Prosecuting Attorney Cleveland, Ohio 44115-1601 The Justice Center 1200 Ontario Street Phyllis E. Cleveland Cleveland, Ohio 44113 P.O. Box 6802 Cleveland, Ohio 44101 - 1 - ANN McMANAMON, P.J.: Archie Leak appeals his conviction for aggravated burglary (R.C. 2911.11) following a plea bargain in which a theft count was dismissed. He raises three assignments of error,/1\ claiming ineffective assistance of counsel, and an involuntary, defective plea pursuant to Crim. R. 11(C)(2). We affirm his conviction. The charges in this case stem from the theft of a television set from the home of Leak's neighbor. In his first assignment of error, Leak argues that the trial court erred in accepting his guilty plea because his lawyer was ineffective. He posits that counsel induced him to plead guilty by assuring him he would receive probation. Moreover, he contends that counsel improperly induced him to plead guilty to aggravated burglary when one of the elements of that crime was not present. We need not apply the Strickland, Hill, Hester and Lytle tests in this case: Strickland v. Washington (1984), 466 U.S. 667; Hill v. Lockhart (1985), 474 U.S. 52; State v. Hester (1976), 45 Ohio St. 2d 71; State v. Lytle (1976), 48 Ohio St. 2d 391. The record does not support Leak's allegation that counsel told him he would receive probation. At the January 11, 1990 pretrial hearing in which Leak entered his guilty plea, the judge expressly asked him if any threats or promises had been made to /1\ See Appendix. - 2 - cause a change of his original plea of not guilty. Leak responded "no." Defendant's counsel also stated for the record: "No promises or threats have been made to [defendant] to induce him to change his plea other than the nolle of the second count." While the record is void of any promises of probation by defendant's counsel, it does indicate defendant was fully informed of the potential penalty for aggravated burglary. At the pretrial hearing the prosecutor told the court: "It is my understanding the defendant wishes to withdraw his previously entered not guilty plea to both counts of the indictment and enter a plea of guilty to the first count, aggravated burglary, an aggravated felony of the first degree with a possible time of incarceration of five, six, seven, eight, nine, ten to 25 years and a maximum fine up to $10,000." Defendant's counsel also iterated: "I went over the constitutional rights of the defendant with him one by one. I believe he has full knowledge and an understanding of the possible consequences of this act here today." Likewise, in delivering defendant his Crim. R. 11 (C) rights, the trial judge explained: "THE COURT: That is an aggravated felony of the first degree for which the law provides a penalty which is a sentence to the Ohio Penal Institution for an indefinite term, having a minimum sentence of five, six, seven, eight, nine or ten years as determined by the Judge, and a maximum as provided by State law of 25 years. "In addition, you would be liable to be required to pay the Court costs and the fine not to exceed $10,000. "Do you understand the crime and the penalties for the crime? "THE DEFENDANT: Yes. - 3 - "THE COURT: Do you have any question about that or anything else that I said? "THE DEFENDANT: Not now." Given these admonitions concerning the possible penalty for aggravated burglary and the absence of any showing that Leak's counsel promised the defendant would receive probation, we find the court did not err in accepting the plea of guilty. Leak next argues counsel improperly induced him to plead guilty when one of the elements for aggravated burglary was lacking. A defendant who enters a plea of guilty waives all defects in the case except the lack of subject-matter jurisdiction of the court, the regularity, constitutionality of the plea itself, and the procedure by which it was accepted. Ross v. Court (1972), 30 Ohio St. 2d 323; State v. Brown (1988), 43 Ohio App. 3d 38. We find, therefore, by entering the plea of guilty, Leak waived the right to challenge whether all the essential elements of aggravated burglary were satisfied. We note Leak challenged the voluntariness of his plea, a matter which is addressed infra. Accordingly, defendant's first assignment of error is overruled. The second assignment of error also attacks the guilty plea. Leak argues his plea was neither voluntarily nor intelligently entered under Crim. R. 11(C)(2) since it was induced by trial - 4 - counsel's misrepresentation. Again we note this allegation is unsupported by the record. Secondly, Leak urges the plea was not knowing or voluntary because Leak did not understand the charges against him and the respective penalties. Crim. R. 11(C)(2) provides: "(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 right 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 defendant must be informed about critical constitutional rights before accepting a plea which waives those rights. State v. Ballard (1981), 66 Ohio St. 2d 473. A trial court need not use the exact language of Crim. R. 11(C) to inform a defendant of his constitutional rights but need only explain them "in a manner reasonably intelligent to that defendant." Id. at paragraph two of syllabus, citing State v. Caudill (1976), 48 Ohio St. 2d 342, modified. Substantial compliance with Crim. R. 11(C) is required when accepting a guilty plea, State v. Flint (1986), 36 Ohio App. 3d 4; State v. Stewart (1977), 51 Ohio St. 2d 86, and a determination of substantial compliance is made from - 5 - the totality of the circumstances. State v. Carter (1979), 60 Ohio St. 2d 34. At the pretrial hearing, the judge explained the full panoply of defendant's constitutional rights pursuant to Crim. R. 11(C) in a detailed and thorough manner. At one point, Leak responded that he did not understand the crime with which he was charged, aggravated burglary. The trial judge queried: "THE COURT: What is it you do not understand about it? "THE DEFENDANT: That I can be charged with, you know, that." The court explained: "THE COURT: If you plead guilty, you will be admitting that on or about August 14, 1989, in Cuyahoga County, Ohio, that you did unlawfully and by force or stealth or deception trespass in an occupied structure or in a separately secured or separately occupied portion thereof with the purpose to commit a theft offense or to commit some felony. It doesn't mean you actually carry something out to be guilty of aggravated burglary. It means you have to trespass in an occupied structure that is occupied by some other human being, or residence, and in which at the time you had an intention to do something unlawful, commit a crime, a felony. Do you understand what the crime is? "THE DEFENDANT: Yes. "THE COURT: Do you have any other questions? "THE DEFENDANT: No." We also find that on four separate occasions the judge asked Leak if he had any questions and each time he responded in the negative. - 6 - Given our disposition in the first assignment indicating Leak's lawyer made no promises to induce the plea, and our review of the record, the totality of the circumstances indicate Leak entered his plea knowingly, voluntarily and intelligently. This assignment of error is overruled. In his third assignment of error, Leak argues the court erred in failing to advise him of his right to request conditional probation pursuant to R.C. 2951.04(A). R.C. 2951.04 provides in part: "(A) If the court has reason to believe that an offender convicted of a felony or misdemeanor is a drug dependent person or is in danger of becoming a drug dependent person, the court may, and when the offender has been convicted the court shall, advise the offender that he has a right to request conditional probation for purposes of treatment and rehabilitation. "(B) Within a reasonable time after receipt of the request for conditional probation, the court shall hold a hearing to determine if the offender is eligible for conditional probation. ***." At the sentencing hearing, Leak insisted he was not drug dependent. When questioned by the court if he abused cocaine, Leak responded: "THE DEFENDANT: No, your honor. I tried [cocaine] around about the New Year's, around like the holidays, and I haven't tried it since. I'm not a drug abuser. I just tried it then. "THE COURT: You abuse your neighbors, you abuse - 7 - society, taking but not giving, but you don't abuse. Okay. "THE DEFENDANT: I just tried it then around the holidays and haven't tried it since." Leak later reiterated: "THE DEFENDANT: I don't do alcohol and drugs." The record indicates Leak tested positive for cocaine one month before his sentencing. The trial judge expressed some incredulity at Leak's denial that he was a drug abuser and noted his attempt to minimize the criminal record brought to his attention. Nevertheless, the court was free to accept Leak's disclaimers as to his addiction. We hold that the court could reasonably determine, pursuant to R.C. 2951.04(A), that Leak was not drug dependent or in danger of becoming so. Accordingly, the third assignment of error is not well taken and the judgment of the trial court is affirmed. Judgment affirmed. - 8 - 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 JERRY HAYES, J., CONCUR. PRESIDING JUDGE ANN McMANAMON (Sitting by assignment: Judge Jerry Hayes, Domestic Relations Court, Portage County). 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. - 9 - APPENDIX I "The trial court committed substantial prejudicial error by accepting appellant's guilty plea, because appellant did not receive effective assistance of counsel, as guaranteed by the Fifth and Sixth Amendments of the Constitution, and Article 1, section 10 of the Ohio Constitution. "A. Defense counsel improperly induced appellant Leak to plead guilty by assuring him that he would receive a sentence of probation. "B. Defense counsel improperly induced appellant Leak to plead guilty to aggravated burglary, when one of the elements of the offense was not present." II "The trial court committed substantial prejudicial error by accepting appellant's guilty plea without substantially complying with the Due Process Clause of the Fourth and Fourteenth Amendments to the United States Constitution and Ohio Criminal Rule 11(C). "A. Appellant's guilty plea was constitutionally invalid because it was not voluntarily and intelligently pleaded, since the appellant was induced by the misrepresentation of counsel. "B. Appellant did not make a knowing and voluntary guilty plea under Ohio Criminal Rule 11(C), in that he did not understand the charges against him and the penalties therefor." III "The court erred in failing to advise the appellant that he had the right under Ohio Revised Code section 2951.04(A) and (B) to request conditional probation and in failing to hold a hearing on his eligibility." .