COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59829 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RONNIE L. TERRY : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 231642. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones, Cuyahoga County Prosecutor, Robert J. Christyson, Jr., Esq., Assistant County Prosecutor, Justice Center, 1200 Ontario Street, Cleveland, Ohio, 44113. For Defendant-appellant: Marlene N. Lally, Esq., Lynch & Lynch Co., L.P.A., 711 Statler Office Tower, East 12th & Euclid Avenue, Cleveland, Ohio, 44115. For Defendant-appellant Pro Se: Ronnie Terry #210044, c/o Orient Correction Institution, P.O. Box 511, Columbus, Ohio, 43216. -2- SWEENEY, JAMES D., J.: Defendant-appellant Ronnie L. Terry appeals his conviction for drug abuse in violation of R.C. 2925.11, enhanced by three prior convictions for drug trafficking (R.C. 2925.03), and a violence specification resulting from a prior conviction for carrying a concealed weapon (R.C. 2923.12). At a hearing held on February 28, 1989, appellant plead guilty to the charge set forth above. Count Two, having a weapon while under disability of a previous conviction (R.C. 2923.13), also with the violence specification, was nolled. In addition, the trial judge ordered a presentence investigation report. On March 23, 1989, appellant was sentenced to serve four to ten years incarceration, and ordered to pay costs. Counsel for appellant was appointed for purposes of appeal. In addition, this court allowed appellant to file a brief pro se to raise issues not set forth by counsel. The prosecutor filed responses to both briefs. We will consider the assignment of error raised by appellant's counsel first. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO CLEARLY INFORM DEFENDANT THAT HE WOULD NOT BE ELIGIBLE FOR PROBATION AS REQUIRED BY RULE 11(C)(2)(a) OF THE OHIO RULES OF CRIMINAL PROCEDURE BEFORE ACCEPTING DEFENDANT'S GUILTY PLEA. Criminal Rule 11(C)(2) states: (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: -3- (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 beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. (Emphasis added.) The issue before this court is whether or not the trial judge was obligated to inform the appellant, before accepting his plea of guilty, that he would not be eligible for probation. Appellant contends that he is a repeat offender, and as such was not eligible for probation. The definition of a repeat offender is found in R.C. 2929.01(A), which states in pertinent part: 2929.01 Definitions. As used in sections 2929.01 to 2929.51 of the Revised Code: (A) "Repeat offender" means a person who has a history of persistent criminal activity, and whose character and condition reveal a substantial risk that he will commit another offense. It is prima facie evidence that a person is a repeat offender if any of the following apply: * * * * -4- (4) Having been convicted of one or more felony drug abuse offenses as defined in Chapter 2925. of the Revised Code, and having been imprisoned pursuant to sentence for any such offense, he commits a subsequent felony drug abuse offense; R.C. 2951.02(F) states that a repeat offender shall not be placed on probation. (F) An offender shall not be placed on probation, and shall not otherwise have his sentence of imprisonment suspended pursuant to division (D)(2) or (4) of section 2929.51 of the Revised Code when any of the following applies: * * * * (2) The offender is a repeat offender or a dangerous offender, as defined in section 2929.01 of the Revised Code. Appellant in the case sub judice was before the court on a felony drug abuse offense, and, as set forth in the indictment, had three prior felony drug convictions. However, the judge made no specific determination that the appellant was a repeat offender. Without such a determination, appellant was eligible to be placed on probation. The court, therefore, had no obligation under Cr. R. 11(C)(2) to inform appellant otherwise. Apparently the trial judge did consider probation, as a presentence investigation report was requested. That the court chose not to place appellant on probation was within its sound discretion. Appellant's first assignment of error is overruled. We turn now to the five assignments of error set forth by the appellant in his brief submitted pro se. -5- I APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL (A) Whether Counsel was ineffective when counsel failed to explore all avenues of defense? (B) Whether Counsel failed to protect appellant's Fourth Amendment rights? II APPELLANT WAS COERCED INTO ENTERING AN UNKNOWING, UNINTELLIGENT, AND INVOLUNTARY PLEA OF GUILTY (A) Whether Appellant was charged with Having a Weapon Under disability, to coerce him to plea-bargain? III APPELLANT WAS THE VICTIM OF A WARANTLESS (SIC) ARREST (A) Whether probable cause existed to stop and arrest appellant without a warrant? (B) Whether warantless (sic) arrest violated appellant's Fourth Amendment Guarantees? IV APPELLANT WAS SUBJECTED AN :ILLEGAL SEARCH (A) Whether warrantless search of appellant violated appellant's rights under the Fourth Amendment? V APPELLANT'S INDICTMENT WAS OBTAINED WITH THE USE OF ILLEGALLY OBTAINED EVIDENCE (A) Whether the gun used as evidence against appellant violated the "Exclusionary Clause" of the Fourth Amendment? The record before this court consists of the trial court's file and the transcripts of both the plea hearing and appellant's -6- sentencing. Nowhere in the record before this court are the appellant's assignments of errors exemplified. App. R. 12(A). Appellant's first, second, third, fourth and fifth assignments of error are overruled. Judgment affirmed. -7- 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. JOSEPH J. NAHRA, P.J., and FRANCIS E. SWEENEY, J., CONCUR. JAMES D. SWEENEY 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. .