COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59541 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ARGIE GIBSON, : AKA ARCHIE GIBSON : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-232783 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: L. CHRISTOPHER FREY ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO CLEVELAND, OHIO 44113 For Defendant-Appellant: ARGIE GIBSON, pro se #208-116 P.O. BOX 45699 LUCASVILLE, OHIO 45601 -2- SPELLACY, J.: On November 22, 1988, defendant-appellant Argie Gibson, a.k.a. Archie Gibson ("appellant") was indicted in Case Number CR-232783 for four counts of having a weapon while under a disability, in violation of R.C. 2923.13, with furthermore clauses indicating he had previously been convicted of aggravated robbery, in violation of R.C. 2911.01, and felonious assault, in violation of R.C. 2903.11, firearm specifications, and violence specifications, and one count of possessing criminal tools, in violation of R.C. 2923.24, with a violence specification. At his arraignment, appellant entered a plea of not guilty. On January 9, 1989, the trial court held a hearing to address criminal charges pending against appellant in Case Numbers CR-232783, CR-212355, CR-231261, CR-231919, and CR- 232146. At this hearing, appellant retracted his plea of not guilty in Case Number CR-232783 and entered a plea of guilty to one count of having a weapon while under a disability, in violation of R.C. 2923.13, with the furthermore clause, a firearm specification, and a violence specification. In addition, appellant pled guilty to a fourth degree felony in Case Number CR-231261 and Case Number CR-231919, and to an aggravated felony of the second degree in Case Number CR-232146. The trial court accepted appellant's plea and, at the state's request, dismissed Case Number CR-212355 and nolled the remaining counts in the various indictments, including those in Case Number 232783. The trial court then sentenced appellant to a term of one and one- -3- half to five years, with an additional three years on the firearm specification to be served consecutively with the one and one- half to five year sentence. The trial court further ordered that this sentence be served concurrently with sentences appellant received in case numbers CR-231261, CR-231919, and CR-232146. On November 1, 1989, appellant filed a motion to correct the trial court's sentence. On November 13, 1989, the trial court overruled appellant's motion. On April 16, 1990, this court granted a motion for leave to file a delayed appeal filed by appellant. Appellant subsequently appealed pro se and raises the following assignments of error: I. THE TRIAL COURT FAILED TO PROPERLY ADDRESS THE FIREARM SPECIFICATION ISSUE SEPARATELY, AND APART FROM THE UNDERLYING CRIMINAL OFFENSE, AND ERRONEOUSLY APPLIED THE GUILTY PLEA TO THE SPECIFICATION. II. THERE WAS NO EVIDENCE PRESENTED DIRECT, OR CIRCUMSTANTIAL TO SUPPORT THAT DEFENDANT DID HAVE A DEADLY WEAPON. III. THE HONORABLE COURT FAILED TO PROPERLY SERVE NOTICE TO PENDING DISABILITY, ALSO THE HONORABLE COURT FAILED TO ADVISE DEFENDANT OF WHAT CONSTITUTES AND (SIC) OFFENSE, WHILE UNDER SAID INDICTMENT. IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AN, (SIC) OR ABUSED ITS DISCRETION WHEN OVERRULING THE DEFENDANT APPELLANT'S MOTION TO CORRECT SENTENCE. I. In his first assignment of error, appellant contends the trial court erred when it imposed a term of three years actual -4- incarceration pursuant to R.C. 2929.71 because he did not plead guilty to a firearm specification. Appellant's assignment of error lacks merit. The imposition of a term of actual incarceration for three years pursuant to R.C. 2929.71 requires either a conviction of, or guilty plea to, a firearm specification. R.C.2929.71(A)(2). A guilty plea to a firearm specification must be made separate and apart from the underlying offense. State v. Tyson (1984), 19 Ohio App. 3d 90, 94. This court has not hesitated to overturn a conviction where the defendant did not enter a guilty plea to a firearm specification contained in the indictment. State v. Johnson (April 13, 1989), Cuyahoga App. No. 55217, unreported, pages 4-5. Whether a defendant has entered a guilty plea to a firearm specification is determined by addressing 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- When accepting a plea from a defendant, the trial court must substantially comply with the requirements of Crim. R. 11. State v. Ballard (1981), 66 Ohio St. 2d 473. Substantial compliance with Crim. R. 11 is determined upon 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 his constitutional rights, explained to appellant the consequences of his plea, and determined that appellant was entering his plea voluntarily. The trial court then stated: And then in the last case, numbered 232783, it is your attorney's statement that you are going to enter a plea of guilty to count one, which is having a weapon while under a disability, a felony of the fourth degree, with a gun specification, and that carries with it a potential penalty of a year-and-a-half, two, two-and-a-half, three to five, and a three years on the gun, which has to run consecutive with that other, those other years. Do you understand that? (Tr. 11) Appellant responded affirmatively and entered a plea of guilty, which the trial court accepted. In addition, appellant's attorney stated that he had fully advised appellant of the charges and potential sentences and it is obvious that appellant benefited from entering his plea. -6- Based on the totality of the circumstances, we conclude that the trial court substantially complied with Crim. R. 11. Consequently, we find that appellant entered a proper plea of guilty to the firearm specification. Accordingly, appellant's first assignment of error is not well taken. II. In his second assignment of error, appellant contends insufficient evidence existed to support a finding of guilt on the firearm specification. Appellant's assignment of error lacks merit. Crim. R. 11(B)(1) provides that "[t]he plea of guilty is a complete admission of the defendant's guilt." See also State v. Wilson (1978), 58 Ohio St. 2d 52, paragraph one of the syllabus, State v. Guyton (1984), 18 Ohio App. 3d 101, 102. Appellant, therefore, is precluded from arguing on appeal that there was insufficient evidence to support a finding of guilt. 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 notify him of his disability or inform him of what constitutes an offense while under an indictment. Appellant's assignment of error lacks merit. -7- Appellant makes several arguments in support of his contention. We address these in turn. First, appellant argues R.C. 2923.13 is unconstitutionally vague. We do not find appellant's argument convincing. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that the language of a criminal statute must be sufficiently definite "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss (1954), 347 U.S. 612, 617; Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162. The Due Process Clause prohibits the states from holding an individual "criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, supra, at 617; Wainwright v. Stone (1973), 414 U.S. 21, 22; Rose v. Locke (1975), 423 U.S. 48, 49. State v. Earlenbaugh (1985), 18 Ohio St. 3d 19, 21. R.C. 2923.13 provides in pertinent part: (A) Unless relieved from disability as provided in section 2923.14 of the Revised Code, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordinance, if *** (2) Such person is under indictment for or has been convicted of any felony of violence, or has been adjudged a juvenile delinquent for commission of any such felony; *** (B) Whoever violates this section is guilty of having weapons while under disability, a felony of the fourth degree. We find that an individual with ordinary intelligence could read R.C. 2923.13 and be given fair notice of the type of conduct which would violate the statute. -8- Second, appellant argues he should have been provided with notice of his disability. When a defendant's disability is based on a prior conviction, however, the defendant's actual knowledge of the disability is not required. State v. Smith (1987), 39 Ohio App. 3d 24, 25. Third, appellant argues that having a weapon while under a disability, a violation of R.C. 2923.13, and the penalty enhancement embodied in R.C. 2929.71 constitute allied offenses of similar import. R.C. 2923.13 and R.C. 2929.71, however, are not allied offenses of similar import because R.C. 2929.71 is not a separate offense. State v. Broadus (1984), 14 Ohio App. 3d 443, 445. Finally, appellant argues he did not enter a separate plea to the firearm specification. We addressed this issue in appellant's first assignment of error and found appellant's plea to be sufficient. Accordingly, appellant's third assignment of error is not well taken. IV. In his fourth assignment of error, appellant contends the trial court erred when it overruled his motion to correct the sentence. App. R. 12(A) provides in pertinent part, "[e]rrors not specifically pointed out in the record and separately argued by brief may be disregarded." App. R. 16(A)(4) provides: -9- The brief of the appellant shall contain under appropriate headings and in the order here indicated: *** An argument. The argument may be preceded by a summary. The argument shall contain the contentions of the appellant with respect to the assignments of error presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied upon. We find that appellant does not sufficiently brief this assignment of error. Thus, we do not address it. Accordingly, appellant's fourth assignment of error is not well taken. 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 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. .