COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59607, 59608, 59609, 59610, 59611 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : EDWARD JONES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-237292 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES, ESQ. CYNTHIA D. SMITH, ESQ. Cuyahoga County Prosecutor 13006 Buckeye Road 8th Floor Justice Center Cleveland, Ohio 44120 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Edward Jones, Defendant-Appellant ("Appellant"), was indicted for Felonious Assault with a firearm specification in violation of R.C. 2903.11; Drug Trafficking in violation of R.C. 2925.03; Aggravated Murder and Felonious Assault in violation of R.C. 2903.01 and 2903.11; Kidnapping, Aggravated Robbery with a firearm specification and a Weapons under Disability in violation of R.C. 2905.01, 2911.01, and 2923.13; finally four counts of Felonious Assault with a firearm specification, Weapons under Disability, and unlawful Possession of a Dangerous Ordinance in violation of R.C. 2903.11, 2923.13, and 2923.17. The herein stated crimes for which Appellant were indicted involved different victims and allegedly occurred on different dates, spanning a time period from October 19, 1988 to October 20, 1989. After the prosecution dismissed several of the counts under a plea bargaining arrangement, Appellant pleaded guilty and was convicted of Felonious Assault with a firearm and two violence specifications in violation of R.C. 2903.11, Drug Trafficking (cocaine) in violation of R.C. 2925.03, Voluntary Manslaughter in violation of R.C. 2903.03, Felonious Assault with a firearm specification in violation of 2903.11, and Aggravated Robbery with a firearm specification in violation of 2911.01. On March 8, 1990, he was sentenced to the maximum penalty. Appellant timely appeals his conviction, and the cases are consolidated for purposes of this appeal. Appellant assigns five errors for this court to review. Because we hold that the trial -3- court did not abuse its discretion in sentencing Appellant; that the trial court did comply with Crim. R. 11; that Appellant's claim of ineffective assistance of counsel is not well taken; we affirm. Although this case involved five separate indictments, which contained several counts in each of the indictments, the facts of this case were primarily generated from the plea bargaining agreement and the trial court's action during the guilty pleas. Prior to the trial court's acceptance of Appellant's guilty pleas the trial court read each of the five indictments to Appellant. Thereafter, the trial judge told Appellant what the maximum penalty was for each count of the indictment, if Appellant was convicted. Additionally, the trial judge told Appellant that there was a mandatory term of incarceration for the firearm specifications that was considered additional time to the other penalties, which was three years on each. The trial court further told Appellant that in addition to the nine years of Factual incarceration, Appellant could serve a total of 38 to 82 years of incarceration, and Appellant acknowledged understanding the consequences of his pleas. Appellant responded in the affirmative that he understood that he was waiving the rights: to a jury trial, trial by the court, to be present, to counsel, to have counsel appointed if you cannot afford counsel, to presumption of innocence until proven guilty beyond a reasonable doubt, to cross-examine witnesses of the state, to compel witnesses to testify on his own -4- behalf, to choose not to testify and no one could comment on the fact that he did not testify. Appellant further responded in the affirmative that he understood that his guilty pleas would be given the same weight as if he had been convicted of those charges. Appellant declined the opportunity to ask any questions. He indicated that no threats or promises had been made to him; that he was satisfied with his attorney; that his pleas were voluntary. He then stated that he was guilty to each charge and admitted to each of the three firearm specifications. In the first case, he admitted to shooting Johnny Isler on October 19, 1988. In the second case, he admitted that he possessed cocaine. In the third case, he admitted that he drove his vehicle into Cedric Little's motorcycle and caused Mr. Little's death. In the fourth case, he admitted to shooting at Tyrone Tanker. In the fifth case, he admitted to being in complicity and driving the car when Carl Pierce used a gun to take money from Phillip Morris, Jr. which robbery was the result of a dispute over drugs. Thereafter, the trial court accepted Appellant's pleas of guilty, ordered a pre-sentence report and set the sentencing hearing for March 8, 1990. At the sentencing hearing, Appellant's counsel explained that Appellant accepted responsibility for his actions and that his problems were the result of greed, his temper and his involvement with drugs. The defense counsel stated to the court -5- that Appellant understood that Appellant was going to go to prison. Finally, the defense counsel asked the trial court to consider the fact that Appellant was nineteen and that he came from a good and supportive family. The trial court inquired as to why he dropped out of school during the eleventh grade. Appellant's counsel explained that it was then he first became involved with drugs as a courier for Five Hundred Dollars per delivery. Appellant's counsel added that Appellant did not plan or intend to kill anyone and that lack of intent was the basis for the manslaughter plea. Appellant was given the opportunity to address the trial court in his own behalf. He apologized and expressed regret for his lifestyle and the things he did. The State, Plaintiff-Appellee ("Appellee"), added factual information and pointed out that some offenses were committed while Appellant was out on bond for others. Appellee stated that in the first felonious assault in October 1988 Appellant shot another student for looking at him. In the second case, in March of 1989 Appellant was shot and the cocaine was found on him when he was being treated at the hospital. In the third case, Appellant rammed his Ford Bronco into the victim's motorcycle and up against another car. The victim's aorta was literally torn from his heart and he died instantly. This incident occurred in front of a drug house. -6- Appellee finally stated that in one instance Appellant shot a semi-automatic weapon firing 36 out of 39 bullets at a man; thereafter, Appellant led the police on a high speed chase. In his final remarks, Appellant's counsel asked the trial court to consider Appellant's age and the possibility of rehabilitation. The trial judge explained that he had considered the pre- sentence report, the complete files and the sequence of events. From this information, the trial judge concluded that Appellant was a teenage drug dealer. The trial judge noted that Appellant did not come to court on the first felonious assault charge until June 7, 1989; that he hired a lawyer and was released on $2,500 bond. Prior to that time, Appellant was able to plead to assault that was the result of a plea bargaining from an Aggravated Burglary. On June 19, 1989, he appeared for arraignment on the drug charge with hired counsel and made a $5,000 bond. Four days later he killed Cedric Little and later made a $50,000 bond on that charge. Then Appellant failed to appear for court and committed the remaining two offenses. From the sequence of events, the trial court concluded that Appellant did not learn anything from the first three offenses. The trial judge was also concerned that the parents were not learning from this experience. He based this conclusion on the contents of a letter he received from the parents. Apparently, they were only concerned with complaining about their son's first lawyer and not their son's behavior. The -7- trial court added that Appellant's cases demonstrated an abuse of the justice system. The trial judge concluded that Appellant had been given many opportunities, therefore, rehabilitation was not an issue. The trial judge stated that the purpose of punishment was to make a statement as well as teach a lesson. He further stated that if someone goes into the drug business and persisted even after being arrested that person does not deserve mercy, especially when he has killed someone. The trial court sentenced Appellant to the maximum terms of incarceration in each case and ordered each case to run consecutively for an aggregate amount of 47 to 91 years. In the first case for felonious assault, Appellant was sentenced to eight to fifteen years, plus three years actual incarceration for the gun specification. In the second case for Trafficking in drugs, he was sentenced to two years actual incarceration. In the third case for Voluntary Manslaughter, he was sentenced to ten to twenty-five years. In the fourth case for Felonious Assault, he was sentenced to eight to fifteen years, plus three years of actual incarceration for the gun specification. In the fifth and final case for Aggravated Robbery, he was sentenced to ten to twenty-five years plus three years actual incarceration for the firearm specification. Appellant's first assignment of error states: -8- APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF OHIO. Allegations of ineffective assistance of counsel which are based on facts not appearing in the record are impossible to review on direct appeal. State v. Cooperrider (1983), 4 Ohio St. 3d 226, 228. The appropriate remedies are provided under post- conviction relief pursuant to R.C. 2953.21. Id. at 228. See also, State v. Gibson (1980), 69 Ohio App. 2d 91, 99 (held ineffective assistance of counsel claims not res judicata in post-conviction hearing unless raised and adjudicated on direct appeal.) In the instant case, we cannot adjudicate this assignment of error because it is based on Appellant's affidavit attached to his brief. It is a well established law that an affidavit attached to an appellate brief is not a part of the appellate record certified by the trial court. E.g., State v. Linte (May 2, 1985), Cuyahoga App. No. 49013, unreported. Therefore, Appellant must seek post-conviction relief pursuant to R.C. 2953.21. Direct appeal is not the appropriate remedy and Appellant's first assignment of error is not well taken. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN ACCEPTING THE APPELLANT'S GUILTY PLEAS TO VOLUNTARY MANSLAUGHTER AND AGGRAVATED ROBBERY WITHOUT A FACTUAL BASIS TO SUPPORT THE CONVICTION, WHERE THE APPELLANT MAINTAINED HIS INNOCENCE. -9- Appellant's argument is based on the proposition of law that a guilty plea accompanied by "protestations of innocence" may not be accepted unless it is supported by evidence of guilt. North Carolina v. Alford (1990), 400 U.S. 25, 56 O.O. 2d 85, cited in State v. Casale (1986), 34 Ohio App. 3d 339, 340. In the instant case, there are no protestations of innocence. (Emphasis added.) Appellant had no dispute with Appellee's witnesses version of how he waited then ran down Cedric Little, nor did he dispute being the driver and assisting Carl Pierce in the aggravated robbery of Phillip Morris, Jr. A protestation of innocence requires some expression that Appellant maintains his innocence. In Alford, the accused expressly maintained his innocence and conditioned his guilty plea on the trial court hearing evidence. Id. at 25. In Casale, the accused filed a motion to withdraw his guilty plea on the basis of his innocence. Id. at 339. In the instant case, Appellant did not express his innocence in the record. Even if it is viewed that Appellant is maintaining his innocence, there is still a sufficient factual basis for his guilty pleas. A reviewing court must look to the totality of the circumstances to determine if there is a sufficient basis to support a guilty plea. State v. Preston (Feb. 9, 1989), Cuyahoga App. No. 55036, unreported. The totality of the circumstances, sub judice, demonstrate a sufficient basis before the court. -10- Thus, Appellant's second assignment of error is not well taken. Appellant's third assignment of error states: THE TRIAL COURT ERRED IN ACCEPTING THE APPELLANT'S GUILTY PLEAS WHERE THE TOTALITY OF THE CIRCUMSTANCES ESTABLISHES THAT THE GUILTY PLEAS WERE NOT VOLUNTARILY AND INTELLIGENTLY GIVEN. Appellant contends that the record itself supports his claim that he was reluctant to enter guilty pleas. However, Appellant supports this argument with references to alleged misrepresenta- tions made to him by his trial counsel. These misrepresentations were not in the record and, therefore, cannot be addressed by this court. See, Cooperrider at 228. Therefore, direct appeal is not the appropriate remedy, which is fully explained in this court's disposition of Appellant's first assignment of error. Appellant's third assignment of error is not well taken. Appellant's fourth assignment of error states: THE TRIAL COURT ERRED IN FAILING TO PROPERLY ADVISE THE APPELLANT OF THE MAXIMUM POSSIBLE SENTENCE UNDER THE GUN SPECIFICATION STATUTE BECAUSE OF HIS ADMISSION TO THE TRUTH OF THE FIREARM SPECIFICATION WHICH WAS NOT INCLUDED IN THE MAXIMUM DISCRETIONARY SENTENCE. The Ohio Supreme Court, in State v. Stewart (1977), 51 Ohio St. 2d 86 establishes that an evaluation of the circumstances of the case is necessary to determine if there has been substantial compliance with Criminal Rule 11. Citing United States v. Brogan -11- (C.A. 6, 1975), 519 F. 2d 28, the Ohio Supreme Court advocates the rule that substantial compliance with Ohio Criminal Rule 11(C) is sufficient. Id. The court also cites the comment in Brogan that rote recitation of the rule was not necessary, because of the belief that we have not yet reached the state where courts will require the parroting of any rule. The conversation need only be "reasonably intelligible" to meet the standard. State v. Ballard (1981), 66 Ohio St. 2d 473. Crim R. 11(C) provides: 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 volun- tarily, with the 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 under- stands 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. To determine if there is substantial compliance, the trial court must look to the totality of the circumstances. See, State v. Rainey (1982), 3 Ohio App. 3d 441. In the instant case, the trial court's explanation that it had the authority "in addition to the nine years" to give Appellant 38 years and keep him incarcerated for 82 years is a reasonably intelligible way of explaining that Appellant could -12- deserve an aggregate of 91 years. Appellant was also informed of the maximum penalty of each of the five cases, the firearm specifications sentences would have to be consecutive to the offense sentences and the sentences were non-probationable due to the various specifications. Thereafter, Appellant acknowledged understanding the trial court's explanations. Therefore, based upon the record the trial court could infer from the totality of the circumstances that Appellant understood the maximum penalty involved including the firearm specifica- tions. Appellant's fourth assignment of error is not well taken. Appellant's fifth and final assignment of error states: THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT WITHOUT CONSIDERING THE STATUTORY GUIDELINES IN DETERMINING THE MINIMUM SENTENCE TO BE IMPOSED. Appellant argues that the trial court abused its discretion in imposing the maximum sentence and failed to consider the guidelines in R.C. 2929.12. We disagree. In State v. Harris (Aug. 1, 1991), Cuyahoga App. No. 58969, unreported at 5, this court held: Sentencing rests within the sound discretion of the trial judge. However, the record must demonstrate the trial court considered the criteria set forth in R.C. 2929.12 and did not act arbitrarily in sentencing the defendant. State v. Seals (Oct. 31, 1985), Cuyahoga App. No. 49448, unreported. A pre-sentence report or some evidence the judge considered these factors would satisfy the law. Id. See, E.g. State v. Turner (1987), 37 Ohio App. 3d 38. -13- In the sentencing, sub judice, the record demonstrates that Appellant was referred to the probation department for a pre- sentence report. The trial court also stated that it made a careful review of that report as well as the complete files from the cases and the sequence of events. Therefore, a trial court does not abuse its discretion in having reviewed the pre-sentence report and having imposed the maximum sentence. Harris at 5. Appellant further suggests since the trial court found his behavior so repugnant that the need for punishment and its deterrent effect on the community outweighs the need for rehabilitation, therefore the trial court obviously ignored the statutory requirements. We disagree. The trial court's statement does not affirmatively show the trial court disregarded the statutory criteria. See, State v. Harden (Dec. 24, 1987), Cuyahoga App. No. 53204, unreported. A careful review of the record reveals that the trial court did consider the factors set forth in R.C. 2929.12. The trial court pointed out that: Appellant is a repeat offender. See, R.C. 2929.12(B)(1). In two of his cases, the victims suffered severe physical harm, one was shot and the other was murdered. See, R.C. 2929.12(B)(3). In four of five of his cases, Appellant caused or threatened serious physical harm. See, R.C. 2929.12(C)(1). Appellant demonstrated to the trial court that his criminal activity was likely to recur by committing felonious assault and aggravated robbery while on bond for felonious assault, -14- trafficking in drugs and aggravated murder. See, R.C. 2929.12(C)(2). There is no evidence in the record that would suggest that: the victims induced or facilitated the crimes. See, 2929.12(C)(3); there are substantial grounds tending to excuse or justify the offenses. See, 2929.12(C)(4); the appellant acted under strong provocation. See 2929.12(C)(5); the appellant is likely to respond quickly to correctional or rehabilitative treatment. See, 2929.12(C)(7). (Emphasis added.) Appellant's history and persistent criminal activity supports the conclusion that he is a risk to the public. See, 2929.12(A) and (C)(6). Therefore, there is no abuse of discretion in the trial court's statement that Appellant deserves no mercy and should serve the maximum sentence in each case. Appellant's fifth and final assignment of error is not well taken. Judgment affirmed. -15- 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. PATTON, P.J., and HARPER, J., CONCUR. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .