COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59784 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : FRANK CARLOZZI : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-222802. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Thomas S. Hudson, Esq. 1700 Terminal Tower Cleveland, OH 44113 -2- MATIA, C.J.: Defendant-appellant, Frank Carlozzi, appeals from his plea of guilty as entered to three counts of theft. The appellant's appeal is based upon a defective plea of guilty and improper sentencing by the trial court. The appellant's appeal is well taken. I. THE FACTS A. THE INDICTMENT On November 18, 1987, the appellant was indicted by the Grand Jury of Cuyahoga County for three counts of theft in violation of R.C. 2913.02 and three counts of securing writings by deception in violation of R.C. 2913.43. The six counts of the indictment stemmed from the appellant's involvement in the fraudulent sale and purchase of real property. B. THE ARRAIGNMENT On December 18, 1987, the appellant was arraigned whereupon a plea of not guilty was entered to all six counts of the indictment. C. THE APPELLANT'S PLEA OF GUILTY On August 29, 1988, the appellant retracted his original plea of not guilty as entered to the six counts of the indictment. Pursuant to Crim. R. 11, the appellant entered a plea of guilty to the three counts of theft. The remaining three counts of securing writings by deception were nolled upon recommendation of the prosecutor. This plea of guilty was entered by the appellant before the Administrative Judge since -3- the originally assigned judge was unavailable to take the plea of guilty. D. THE SENTENCE OF THE TRIAL COURT On December 12, 1988, the trial court sentenced the appellant to incarceration within the Correctional Reception Center, Orient, Ohio, for a term of two years with regard to each count of theft. In addition, the trial court ordered that the sentences of incarceration run consecutive to each other. E. THE APPELLANT'S DELAYED APPEAL On May 31, 1990, the appellant was granted leave by this court to file a delayed appeal. It should also be noted that the stenographic notes, as made by the court reporter with regard to the appellant's plea of guilty, were destroyed in a fire which occurred at the Cuyahoga County Justice Center in December of 1988. II. THE FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: "THE TRIAL COURT ERRED IN FAILING TO INFORM APPELLANT OF THE MAXIMUM POSSIBLE PENALTIES, OR OF THE FACT THAT THEY COULD BE IMPOSED CONSECUTIVELY, THUS RENDERING APPELLANT'S PLEA AND WAIVER OF HIS CONSTITUTIONAL RIGHTS INVOLUNTARY." A. ISSUE RAISED: APPELLANT'S PLEA OF GUILTY WAS DEFECTIVE The appellant, in his initial assignment of error, argues that the trial court failed to comply with the requirements of Crim. R. 11(C) in accepting the appellant's plea of guilty to three counts of theft. Specifically, the appellant argues that -4- his plea of guilty was defective since the trial court failed to advise the appellant of the maximum penalties associated with the three counts of theft. In addition, the appellant argues that the trial court failed to inform the appellant of the possibility of consecutive versus concurrent sentences of incarceration. The appellant's first assignment of error is well taken. B. CRIM. R. 11(C) AND REQUIREMENTS FOR A VALID PLEA OF GUILTY Crim. R. 11(C), which defines the trial court's duties in accepting a plea of guilty, provides that: "(1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. "(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 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 -5- beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself." C. REQUIREMENT OF ORAL DIALOGUE IN A PLEA OF GUILTY The Supreme Court of Ohio has established that Crim. R. 11(C) requires that an oral dialogue occur between the trial court and the defendant in order to properly determine whether the defendant fully comprehends the consequences of his plea of guilty. "Adherence to the provisions of Crim. R. 11(C)(2) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest." State v. Caudill (1976), 48 Ohio St. 2d 343, paragraph two of the syllabus. (Emphasis added.) D. RECORD OF APPELLANT'S PLEA OF GUILTY WAS DESTROYED In the case sub judice, however, the record of the oral dialogue which occurred between the trial court and the appellant on August 29, 1988, is unavailable as a result of a fire which destroyed the stenographic notes. E. APPELLATE REVIEW OF PLEA OF GUILTY STILL POSSIBLE WITHOUT ORIGINAL RECORD This court, on several occasions, has held that an appellate review of a plea of guilty is possible even when the record of the plea of guilty has been destroyed. Such an appellate review is possible through the usage of an App. R. 9(C) statement or an App. R. 9(E) statement and the available record does not disclose -6- the existence of any impropriety or error on the part of the trial court. "Defendant contends because the transcript of his guilty plea was destroyed in a fire it is impossible to determine whether his guilty plea was given in compliance with Crim. R. 11(C). Defendant argues, therefore, the judgment must be vacated and he should be granted 'a new trial.' Defendant's argument is unpersuasive. *** "In the case sub judice, although no transcript is available the record does disclose defendant retracted a plea of not guilty to aggravated murder and entered a guilty plea to involuntary manslaughter. Furthermore, defendant submitted a statement of the evidence pursuant to App. R. 9(C) which provides in relevant part as follows: *** "The provisions of App. R. 9 thus allow defendant a full and fair appeal in the event of an accidental destruction of a trial transcript. See State v. Grant (October 4, 1990), Cuy. Cty. App. No. 57537, unreported. The App. R. 9(E) statement indicates defendant's plea was voluntary, intelligent and intentional. The App. R. 9(E) statement further states the court's acceptance of the plea was in substantial compliance with Crim. R. 11(C). In the absence of any demonstration to the contrary,/1\ this court will presume the regularity of the trial court's actions. Therefore, this court will not vacate defendant's plea." (Footnote omitted.) State v. Richards (November 1, 1990), Cuyahoga App. No. 57664, unreported, at 3. F. APP. R. 9(C) AND APP. R. 9(E) STATEMENTS INSUFFICIENT TO ALLOW PRESUMPTION OF REGULARITY A review of the App. R. 9(C) statements as provided by the appellant and the appellee and the App. R. 9(E) statement as provided by the trial court, however, prevents this court from -7- presuming the regularity of the trial court's actions and further prevents this court from finding that the appellant's plea of guilty was in substantial compliance with Crim. R. 11(C). The appellant's App. R. 9(C) statement clearly provides that the trial court failed to inform the appellant of the possible maximum penalties and the possibility of concurrent versus consecutive terms of incarceration. The App. R. 9(C) statement, as filed by the appellee, provided that the appellant was informed of the possible maximum penalties associated with the three counts of theft. Finally, the App. R. 9(E) statement of the trial court, which attempted to settle the record, did not provide that the trial court complied with the mandates of Crim. R. 11(C). The App. R. 9(E) statement, as provided by the trial court, did not state with specificity that the appellant entered a voluntary, knowing and intelligent waiver of his constitutional rights and that the appellant was apprised of potential sentences of incarceration. To the contrary, the App. R. 9(E) statement merely states that the Administrative Judge, who accepted the plea of guilty, possessed no independent recollection of the plea hearing but that the trial court "disputes" the appellant's claim of failure to inform the appellant of possible sentencing parameters. As presented to this Court, the App. R. 9(C) statements and the App. R. 9(E) statement are insufficient to allow this court to presume regularity and hold that the appellant's plea of guilty was voluntary, intelligent and intentional. This court, -8- based upon the record provided by the parties and the trial court, cannot presume that the appellant's plea of guilty was in substantial compliance with Crim. R. 11(C). G. JUDGMENT WHICH JOURNALIZED PLEA OF GUILTY WAS DEFECTIVE Further review of the record by this court clearly demonstrates a defective judgment entry with regard to the appellant's plea of guilty which in turn prevented the trial court from passing sentence upon the appellant. As stated previously, the judge who was originally assigned to hear the appellant's case was unavailable and thus the plea of guilty was entered before the Administrative Judge. Such a plea of guilty, as entered before the Administrative Judge, was permissible pursuant to the application of Crim. R. 25; Disability of a Judge. As mandated by Crim. R. 32(B), the judge who presided over the proceeding which culminated in a judgment, must also sign the judgment. "(B) Judgment. A judgment of conviction shall set forth the plea, the verdict or findings and sentence. If the defendant is found not guilty or for any other reason is entitled to be discharged, judgment shall be entered accordingly. The judgment shall be signed by the judge and entered by the clerk." The judgment of conviction which set forth the appellant's plea of guilty, however, was not signed by the Administrative Judge who originally took the appellant's plea. -9- The journal entry of August 29, 1988, which allegedly journalized the appellant's plea of guilty, was defective absent the signature of the Administrative Judge and resulted in the appellant's denial of due process. Cf. State v. Tripodo (1977), 50 Ohio St. 2d 124. Thus, this irregularity of proceeding also requires this court to reverse the appellant's plea of guilty and reinstate the original six counts of the indictment. Cf. State v. Ginocchio (1987), 38 Ohio App. 3d 105; State v. Ellington (1987), 36 Ohio App. 3d 76. Therefore, the appellant's first assignment of error is well taken. III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: "THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANT TO MAXIMUM CONSECUTIVE PRISON TERMS WITHOUT APPARENT JUSTIFICATION OR SUITABLE EXPLANATION." A. ISSUE RAISED: TRIAL COURT IMPROPERLY SENTENCED APPELLANT TO CONSECUTIVE TERMS OF INCARCERATION The appellant, in his second assignment of error, argues that the sentence of the trial court was defective. Specifically, the appellant argues that the trial court abused its discretion in sentencing the appellant to consecutive maximum terms of incarceration. The appellant's second assignment of error is not well taken. -10- B. MOOT ASSIGNMENT OF ERROR MUST STILL BE REVIEWED Although the appellant's second assignment of error has been rendered moot as a result of the disposition of the first assignment of error in favor of the appellant, this court is still required to review the claimed error. Criss v. Springfield Twp. (1989), 43 Ohio St. 3d 83. Thus, this court will address the appellant's second assignment of error while assuming that the first assignment of error was not well taken and the appellant did enter a valid plea of guilty. C. TRIAL COURT POSSESSES BROAD DISCRETION WHEN IMPOSING SENTENCE A trial court possesses broad discretion in imposing a sentence upon a defendant with regard to a felony conviction. In addition, this court will not reverse the sentence of a trial court unless the sentence was statutorily incorrect or the trial court abused its discretion by failing to consider the sentencing factors as provided in R.C. 2929.12. Toledo v. Reasoner (1965), 5 Ohio St. 2d 22; State v. Kroner (1988), 49 Ohio App. 3d 133; State v. Harrison (Oct. 18, 1990), Cuyahoga App. No. 57617, unreported. D. TRIAL COURT DID NOT ABUSE ITS DISCRETION IN SENTENCING THE APPELLANT Herein, the record reflects that the trial court did indeed consider the sentencing factors enumerated in R.C. 2929.12. Additionally, the record reveals that the sentence of the trial court comported with the sentencing guidelines as established in R.C. 2929.11. Thus, the trial court did not abuse its discretion -11- in sentencing the appellant to three consecutive two year terms of incarceration. State v. Flors (1987), 38 Ohio App. 3d 133; State v. Williams (1982), 7 Ohio App. 3d 160. Therefore, the appellant's second assignment of error is not well taken. Based upon this court's disposition of the appellant's second assignment of error, the appellant's plea of guilty to three counts of theft and the trial court's sentence of incarceration are vacated. The original six counts of the indictment of November 18, 1987, which involved three counts of theft in violation of R.C. 2913.02 and six counts of securing writing by deception in violation of R.C. 2913.43, are reinstated. The matter is remanded to the trial court for further proceedings consistent with this opinion. Reversed and remanded. -12- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATTON, J. and KRUPANSKY, J., CONCUR. DAVID T. MATIA CHIEF JUSTICE 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. .