COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59856 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JOHN HOLLIS, JR. : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 246721 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: HENRY J. HILOW ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OH 44113 For Defendant-Appellant: MARY BETH CORRIGAN BRUNER, SHAPIRO & HARRIS CO., L.P.A. 1600 ILLUMINATING BUILDING 55 PUBLIC SQUARE CLEVELAND, OH 44113 -2- SPELLACY, J.: On November 29, 1989, defendant-appellant John Hollis, a.k.a. James Holliday, ("appellant") was indicted in CR-246721 for two counts of aggravated murder, in violation of R.C. 2903.01, each with specifications making the potential penalty death; kidnapping, in violation of R.C. 2905.01, with an aggravated felony specification; and rape, in violation of R.C. 2907.02, with an aggravated felony specification. On the day set for trial, April 2, 1990, the trial court held a hearing at which appellant entered a plea of guilty to one count of aggravated murder, in violation of R.C. 2903.01, with the death penalty specifications removed. The trial court accepted appellant's plea and, at the request of the state, nolled the remaining three counts. Appellant also entered a guilty plea in CR-246996 to one count of felonious assault, in violation of R.C. 2903.12, with a specification, and one count of attempted rape, in violation of R.C. 2907.02 and R.C. 2923.02, with a specification. The trial court accepted appellant's plea and, at the request of the state, nolled the remaining four counts in the indictment. The trial court went on to sentence appellant to a term of life imprisonment, with thirty years actual minimum in CR-246721 and to two terms of twelve to fifteen years in CR-246996. The trial court then ordered that appellant's sentences in CR-246996 were to run concurrent with each other but consecutive to appellant's sentence in CR-246721. -3- Appellant appeals from his guilty plea entered in CR-246721 and assigns the following assignments of error: I. THE TRIAL COURT ERRED IN ACCEPTING THE APPELLANT'S GUILTY PLEAS SINCE THE APPELLANT DID NOT UNDERSTAND THE PENALTY INVOLVED AND THEREFORE DID NOT VOLUNTARILY AND INTELLI- GENTLY WAIVE HIS CONSTITUTIONAL RIGHT TO A TRIAL. II. THE TRIAL COURT ERRED IN ACCEPTING THE APPELLANT'S GUILTY PLEAS SINCE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FROM THE TIME OF HIS ARREST THROUGH AND INCLUDING THE TIME OF SENTENCING IN VIOLATION OF HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS. I. In his first assignment of error, appellant contends the trial court erred when it accepted his guilty plea to aggravated murder because he did not understand the potential penalty involved. Appellant's assignment of error lacks merit. Appellant supports his contention by arguing that the trial court failed to comply with Crim. R. 11(C)(2)(a), which provides in pertinent part: In felony cases the court *** shall not accept *** [a guilty] plea without first addressing the defendant personally and: *** 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. Prior to accepting a plea, the trial court must substantially comply with Crim. R. 11. State v. Ballard (1981), 66 Ohio St. 2d 473. Substantial compliance is determined by a -4- 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, 7. During the hearing the following dialogue occurred: [The Court]: Mr. Hollis, have you heard what your attorney and [the] prosecutor have said? THE DEFENDANT: Yes, but I don't quite understand all of it. THE COURT: You didn't under- stand all of it? Let me try to explain it to you. THE DEFENDANT: About the life sentence or whatever, concurrent or whatever. THE COURT: Fine. Let me explain it to you. THE DEFENDANT: Okay. THE COURT: The way you're indicted, there are numerous counts. In the first case, one of the counts carries with it the possibility of your having to be put to death in the electric chair. In that case your attorneys have worked out with the prosecutor and with the concurrence of the prosecutor and the victim's family, that you would be allowed to plea to a lesser offense that does not carry the death penalty, but does require you, under the plea bargaining agreement, to serve thirty years to life. We will sentence you to life with no possibility of parole for the first thirty years. In return for that plea, the other counts in that indictment will be dismissed. So you would not have to worry or even be concerned about the possibility of facing the death penalty. Does that help? THE DEFENDANT: Yeah. THE COURT: All right. Now, then, you have a second case. In the second -5- case you're charged with six separate offenses, all of which carry rather long term imprisonments. In return for your pleading guilty to two of those counts, they will dismiss the other four counts in that indictment and they will agree that the time you serve on those two counts will run concurrent, meaning they will run together. I will sentence you on those two, and the effect of that sentence will be as though you were just sentenced on one of them, because they are going to run the time concurrent. However, you would have to serve the time that you are sentenced to in the first case, and what you have served this time, you would then start to serve the time that you're sentenced to in the second case. Does that make it clear to you, sir? THE DEFENDANT: Yeah. (Tr. 9-12). Reviewing the totality of the circumstances, we find that the trial court substantially complied with Crim. R. 11(C)(2)(a). Appellant also argues that the trial court failed to comply with Crim. R. 11(C)(3), which provides in pertinent part: With respect to aggravated murder *** [a] plea of guilty or no contest to the charge waives the defendant's right to a jury trial, and before accepting such plea the court shall so advise the defendant and de- termine that he understands the consequences of such plea. At the hearing, the following dialogue occurred: [The Court] Sir, if you're not guilty, or if you believe you're not guilty, you're entitled to have a trial of the prosecution's case and an opportunity to put forth any defense you might want to put forth, do you understand that? THE DEFENDANT: Yes. -6- THE COURT: Now, at that trial, sir, you're entitled to be tried by a jury of 12 persons, or in your case, because of the nature of the charges, you could waive that jury trial and be tried by a three judge panel of this court. I would be one of those three judges, and the administrative judge would determine who the others would be. Do you understand me? THE DEFENDANT: Yes. THE COURT: Additionally, sir, at that trial you would be entitled to be represented by lawyers. If you cannot afford lawyers, the Court would appoint lawyers to represent you at no cost to you, do you understand that? THE DEFENDANT: Yes. THE COURT: At the trial, sir, the prosecution would be required to produce its witnesses in open court. You would have a right to cross-examine those witnesses through your attorneys, and you would have a right to issue subpoenas to compel witnesses to come in and testify on your behalf. Do you understand that? THE DEFENDANT: Yes. THE COURT: Now, at the trial, sir, in order to prove you guilty, it would be necessary that the prosecution prove each and every element of each and every offense charged beyond a reasonable doubt, under- stand? THE DEFENDANT: Yes. THE COURT: At the trial, sir, you could testify, if you wanted to, but if you did not want to, no one would be permitted to make you testify, and no one would be permitted to make any comment or say anything about the fact that you did not testify. Is that clear to you? THE DEFENDANT: Yes. -7- THE COURT: Most important, sir, at such a trial, you would be presumed to be innocent until such time as the prosecution has proven each and every element of each and every offense charged beyond a reasonable doubt, do you understand that? THE DEFENDANT: Yes. THE COURT: Now, sir, if you plead guilty, as indicated, to Count Two in the first case and to Count Two and to Count Four in the second case, you would be giving up all those rights and protections that I just outlined for you, do you understand that? THE DEFENDANT: Yes. (Tr. 16-19). Reviewing the totality of the circumstances, we find that the trial court substantially complied with Crim. R. 11(C)(3). Appellant further argues that he did not comprehend the implication of his guilty plea because he was under the influence of prescription medicine at the time of the hearing. At the hearing, the following dialogue occurred: THE COURT: As you stand before the Court this afternoon, are you under the influence of any drug or alcohol? THE DEFENDANT: No, just medication that the doctor prescribed. I don't know. THE COURT: You're taking a prescription medication that the doctor prescribed for you? THE DEFENDANT: Yes. THE COURT: That allows you to think clearly though, doesn't it? Do you understand what's going on? THE DEFENDANT: Yeah. -8- THE COURT: It's very important that I know that, that you understand what's going on. Okay? THE DEFENDANT: Yes. (Tr. 13). Reviewing the totality of the circumstances, we find that the trial court's determination that appellant's guilty plea was not influenced by drugs substantially complied with Crim. R. 11. See State v. Benn (December 7, 1989), Cuyahoga App. No. 56285, unreported; State v. McGhee (February 12, 1987), Cuyahoga App. No. 51540, unreported; State v. Kloos (February 12, 1987), Cuyahoga App. No. 50879, unreported. Finally, appellant argues that his trial attorneys advised him that his total sentence would be fifteen years. Appellant's argument, however, is not supported by the record. Accordingly, appellant's first assignment of error is not well taken. II. In his second assignment of error, appellant contends that he was denied his right to effective assistance of counsel. Appellant's assignment of error lacks merit. Appellant makes five arguments in support of his contention. We address these in turn. First, appellant argues that he was denied timely access to an attorney. This argument is unconvincing. The record reveals that appellant was arrested on November 20, 1989, indicted on -9- November 29, 1989, and assigned an attorney at his arraignment on December 5, 1989. In addition, appellant's written statement, dated November 20, 1989, indicates that appellant had waived his right to counsel. Appellant goes on to make numerous allegations concerning a strategy by the police to elicit a confession before appellant could meet with an attorney. None of these allegations, however, are supported by the record. Second, appellant argues that his trial attorneys' failure to file a motion to suppress his confession constituted ineffec- tive assistance of counsel. A two-step test is applied to determine whether a criminal defendant has been denied the right to effective assistance of counsel. First, it must be determined whether the counsel's performance fell below an objective standard of reasonable representation. If this is the case, then it must be determined whether the defendant was prejudiced by the counsel's performance. State v. Bradley (1989), 42 Ohio St. 3d 136; see, also, Strickland v. Washington (1984), 466 U.S. 668; State v. Lytle (1976), 48 Ohio St. 2d 391. "A criminal conviction will not be reversed on the ground of ineffective assistance of counsel solely because defense counsel failed to file a timely motion to suppress evidence, where the record does not demonstrate that the evidence was illegally obtained." State v. Gibson (1980), 69 Ohio App. 2d 91, -10- paragraph two of the syllabus. Appellant has failed to demonstrate that his confession was illegally obtained. Third, appellant argues his trial attorneys' were ineffective because they did not raise a defense of either incompetency to stand trial or insanity. Appellant's arguments are unconvincing. Prior to trial, at the request of appellant's counsel, the trial court referred appellant to the psychiatric clinic for an evaluation of his competency to stand trial. In addition, a review of the record reveals that appellant's counsel could have decided an insanity defense had no reasonable chance of success. See State v. Seiber (1990), 56 Ohio St. 3d 4, 12. Fourth, appellant argues that prior to the hearing his trial attorneys advised him that his guilty pleas would result in a maximum sentence of fifteen years to life. This argument is not supported by the record. Where an appellant contends that he was denied the right to effective assistance of counsel and bases his argument on facts outside of the record, the appropriate remedy is a motion for post-conviction relief. State v. Gibson (1980), 69 Ohio App. 2d 91, paragraph three of the syllabus. Finally, appellant argues that he received ineffective assistance of counsel because his trial attorneys allowed trial to be scheduled approximately five months after appellant's indictment. The record, however, does not demonstrate that appellant's trial attorneys did not have an adequate amount of time to prepare a defense. -11- Accordingly, appellant's second assignment of error is not well taken. Judgment affirmed. - 12 - 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. DYKE, 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. .