COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59505 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ALBERT ROSE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-188849 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: FOR PLAINTIFF-APPELLEE: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: JOHN McCAFFREY ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO CLEVELAND, OHIO 44113 FOR DEFENDANT-APPELLANT: THOMAS E. MALLOY 75 PUBLIC SQUARE, SUITE 1320 CLEVELAND, OHIO 44113 -2- SPELLACY, J.: On February 7, 1984, defendant-appellant Albert Rose ("appellant") was indicted in Case Number CR-188849 for Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification and a violence specification, Felonious Assault, in violation of R.C. 2903.11, with a firearm specification, and Having A Weapon While Under A Disability, in violation of R.C. 2923.13. At his arraignment, appellant entered a plea of not guilty. On March 9, 1984, the trial court held a hearing to address criminal charges pending against appellant in Case Numbers CR- 188243, CR-188458, and CR-188849. At the hearing, appellant retracted his plea of not guilty in CR-188849 and entered a plea of guilty to the charge of Aggravated Robbery, in violation of R.C. 2911.01, with a firearm specification. In addition, appellant entered guilty pleas to first degree felonies in Cr- 188243 and CR-188458. The trial court then accepted appellant's pleas and, at the request of the State, nolled the remaining counts. On May 7, 1984, the trial court sentenced appellant to a mandatory sentence of three years and to a term of ten to twenty- five years to run concurrently with sentences appellant received in CR-188243 and CR-188548. On March 19, 1990, this court granted appellant's motion for a delayed appeal. Appellant appeals and raises the following assignments of error: -3- I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT FAILING TO EXAMINE APPELLANT TO DETERMINE THAT HE INTELLIGENTLY WAIVED HIS CONSTITUTIONAL RIGHTS AND KNEW THE NATURE OF AND CONSEQUENCES OF HIS PLEA OF GUILTY TO THE CHARGE. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FAILING TO EXAMINE APPELLANT TO DETERMINE THAT HE INTELLIGENTLY WAIVED HIS CONSTITUTIONAL RIGHTS AND KNEW THE NATURE OF AND CONSEQUENCES OF HIS PLEA OF GUILTY. III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FAILING TO EXAMINE APPELLANT TO DETERMINE THAT HE INTELLIGENTLY WAIVED HIS CONSTITUTIONAL RIGHTS AND KNEW THE NATURE OF AND CONSEQUENCES OF HIS PLEA OF GUILTY TO THE CHARGES, AND FAILING TO ADVISE THE APPELLANT THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT THE FIREARM WAS OPERABLE. I. In his first assignment of error, appellant contends the trial court erred when, prior to his entering a plea of guilty, it provided him with the incorrect potential minimum sentences for the charge of aggravated robbery, in violation of R.C. 2911.01. Appellant's assignment of error lacks merit. The record clearly indicates that the trial court complied with Crim. R. 11 by advising appellant of the maximum penalty for the charge of aggravated robbery and of the fact that he would have to serve an additional three years as a result of the firearm specification. The trial court also provided appellant with incorrect potential minimum sentences. We find, however, that appellant waived the right to raise this error on appeal because he made no -4- objection at either the hearing at which he entered his plea or at his subsequent sentencing hearing where the trial court applied the correct minimum sentence. See State v. Joiner (July 3, 1985), Hamilton App. No. B-833045, unreported, citing to State v. Williams (1977), 51 Ohio St. 2d 112. Accordingly, appellant's first assignment of error is not well taken. II. In his second assignment of error, appellant contends he did not plead guilty to the firearm specification. Appellant's assignment of error lacks merit. A guilty plea must be made separate and apart from the underlying offense. State v. Tyson (1984), 19 Ohio App. 3d 90, 94. The validity of a defendant's guilty plea to a firearm specification is determined by the trial court's compliance with Crim. R. 11. State v. Harris (December 6, 1990), Cuyahoga App. No. 57725, unreported. Crim. R. 11 provides in pertinent part: (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. -5- (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. Prior to accepting a plea, the trial court must substantially comply with Crim. R. 11. State v. Ballard (1981), 66 Ohio St. 2d 473. Whether a trial court substantially complied with Crim. R. 11 is determined by a review of the totality of the circumstances. State v. Carter (1979), 60 Ohio St. 2d 34, 38; State v. Flint (1986), 36 Ohio App. 3d 4, paragraph three of the syllabus. In the instant case, the trial court engaged in an open dialogue with appellant during which it advised appellant of the constitutional rights he would waive by entering a guilty plea, explained the consequences of a guilty plea, and determined that appellant was entering his plea voluntarily. The following dialogue then transpired. THE COURT: You also understand that under Case No. 188849, because it was a gun specification there, that you have to spend three years mandatory time. (Tr. 7). Appellant answered that he did understand and subsequently pled guilty to the aggravated robbery charge. In addition, appellant's attorney stated: -6- ... And also as to 188849, I also informed my client, *** he does know the specification as to the gun is going to remain. I discussed with him that sentencing and everything, and he knows what the situation is. (Tr. 4). It is also clear that appellant benefited from his plea. Based on the totality of the circumstances, we find that the trial court properly complied with Crim. R. 11. As a result, appellant's guilty plea to the firearm specification was proper. Accordingly, appellant's second assignment of error is not well taken. III. In his third assignment of error, appellant contends the trial court erred when it failed to advise him that the State must prove the firearm was operable in order for a defendant to be found guilty of a firearm specification. Appellant's assignment of error lacks merit. Crim. R. 11(C)(2)(a) requires that a trial court determine whether the defendant understand the nature of the charge before it accepts a guilty plea. A trial court may comply with Crim. R. 11(C)(2)(a) without advising the defendant of the elements of the crime or specifically asking whether the defendant under- stands the charge, if, under the totality of the circumstances, it is "*** warranted in making a determination that the defendant understands the charge." State v. Rainey (1982), 3 Ohio App. 3d 441, 442. -7- As noted above, appellant's attorney informed the trial court that he had conferred with appellant and that appellant was aware of the "situation". We find that based on this factor, along with the totality of the circumstances, the trial court could properly find that appellant understood the firearm specification. Accordingly, appellant's third assignment of error is not well taken. 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. ANN MCMANAMON, P.J., AND PATTON, J., CONCUR. LEO M. SPELLACY 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. .