COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59924, 59925 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION EUSEVIO CID MIRANDA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1992 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Cases Nos. CR-247,331, and CR-251,234 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. RUTH J. HUDSON, ESQ. Cuyahoga County Prosecutor Hudson and Hudson ROBERT J. CHRISTYSON, JR., ESQ. 1700 Terminal Tower Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Appellant, Eusevio Miranda, was indicted on February 8, 1990, by the Cuyahoga County Grand Jury under two separate indictments. In case number CR-247,331, appellant was indicted and charged with one count of robbery, in violation of R.C. 2911.11. On April 17, 1990, he withdrew his previously entered plea of not guilty and entered a plea of guilty to a lesser offense of attempted robbery. At the plea hearing, the court informed appellant, who spoke only Spanish, through his counsel who was also his translator, of his constitutional rights. The court further informed appellant that the crime of attempted robbery is probationable, and can also carry a penalty of two to ten years in jail. Appellant stated that he understood his constitutional rights as well as the range of penalties he could receive for pleading guilty. Appellant then entered a plea of guilty to attempted robbery. The court requested that appellant's counsel inform him that if the possible probation or parole sentence he might be serving in Puerto Rico is violated he would receive a second sentence. The court accepted appellant's plea, after being satisfied that there was a factual basis for the plea and that it was done voluntarily. The matter was referred to the Probation Department for a presentence report. In appellant's second indictment in case number CR-251,234, he was charged with one count each of forgery and uttering, one count of petty theft, and one count of receiving stolen property. - 3 - On May 9, 1990, appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to a single count of receiving stolen property. The remaining three counts were nolled. At the plea hearing, the court informed appellant through his counsel and translator that the offense of receiving stolen property is probationable. The court further asked if appellant had a prior record. Appellant's counsel responded that appellant pled guilty on April 17, 1990 to attempted robbery. Appellant's counsel informed the court that "he has no felony record other than that attempted robbery charge". The court further inquired if appellant is on parole or probation to any law enforcement agency. Appellant's counsel responded as follows: "MR. HERNANDEZ: Your Honor, at the time of the plea in the last case we indicated to this Court that Mr. Miranda was under the impression that he may still be on parole for another charge in Puerto Rico. As of yet we have no indication that Puerto Rico has any desire to extradite him. We've certainly heard nothing with regards to that case." At the sentencing hearing on May 31, 1990, the court stated, based on a presentence report, that appellant could not be put on probation because there is a hold on him from Puerto Rico and that the authorities in Puerto Rico want him back as a parole violator. The court stated that appellant would not be able to serve his probation if he is returned to Puerto Rico. Appellant was sentenced to a minimum of three years and a maximum of ten years in jail on the attempted robbery charge, - 4 - plus costs; one year in jail on the receiving stolen property charge, plus costs. Appellant appeals as of right, and for the reasons that follow, we affirm. II. Appellant's propositions of law are as follows: "ASSIGNMENT OF ERROR I "A PLEA OF GUILTY IS NOT VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY MADE WHERE THE TRIAL COURT ADVISES APPELLANT THAT HIS CRIME IS PROBATIONABLE WHEN, IN FACT, THE COURT BELIEVES THAT IT IS NOT PROBATION- ABLE AND PASSES SENTENCE BASED ON THAT BELIEF. "ASSIGNMENT OF ERROR II "AN INDICTMENT FOR ROBBERY WHICH MERELY CHARGES APPELLANT WITH THREATENED USE OF FORCE WITHOUT THE ALLEGATION THAT IT WAS IMMEDIATE, AS REQUIRED BY STATUTE, HAS OMITTED AN ESSENTIAL ELEMENT OF THE CRIME AND IS THEREFORE INSUFFICIENT AND INVALID." Appellant, in his first proposition of law, argues that his plea of guilty was not voluntarily given because he was misled. Specifically, he argues that the court knew that his offenses were not probationable when it informed him that they were, thereby misleading him into pleading guilty. Appellant's argument has no merit. Crim. R. 11(C)(2)(a) states in relevant part as follows: "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." - 5 - Crim. R. 11 was instituted to inform a defendant of his constitutional rights as stated in the Fifth and Sixth Amendments of the United States Constitution before a plea of guilty is entered by him. Therefore, in order for a plea of guilty to be valid in a felony case, the court must follow all the procedural requirements of Crim. R. 11, failure of which renders the guilty plea null and void. State v. Buchanan (1974), 43 Ohio App. 2d 93. The range of sentence involved in an offense is an important factor in deciding whether to plead guilty or not, therefore, a trial court, in determining whether a plea of guilty is voluntary, must inform a defendant of possible penalties that could be given. See State v. Wilson (1978), 55 Ohio App. 2d 64; State v. Ricks (1977), 53 Ohio App. 2d 244. In the within case, the trial court informed appellant of his constitutional rights and asked him if he understood those rights, to which he answered in the affirmative. The trial court, in an attempt to comply with the Crim. R. 11 requirement that a defendant be informed of possible penalties he might face, stated: "THE COURT: This offense is probationable and also carries two to ten years in jail; do you understand that range of penalty? "THE DEFENDANT: Yes, I understand. "THE COURT: Now, I know that Mr. Miranda, this is from our in-chambers conference, is on probation or parole, perhaps, in Puerto Rico. Would you just explain his rights that if in fact he were violated, there would be a second sentence, assuming probation or parol were not terminated, and tell me what you said to him." - 6 - During a plea hearing on Case No. CR-251,234, appellant's counsel stated as follows: "MR. HERNANDEZ: Your Honor, at the time of the plea in the last case we indicated to this Court that Mr. Miranda was under the impression that he may still be on parole for another charge in Puerto Rico. As of yet we have no indication that Puerto Rico has any desire to extradite him. We've certainly heard nothing with regards to that case." It is uncontroverted that the offense of robbery is probationable and as stated by the trial court carried two to ten years in jail. What makes a robbery offense nonprobationable would depend on the circumstances of a particular defendant's case which must be known to the court at the time of the plea. In the within case, the record indicates that neither the trial court, nor appellant, had the facts of his status in Puerto Rico during the time of the plea. A court can only inform a defendant that he is not eligible for probation before accepting a plea in a felony case only if there are facts before the court that precludes probation. State v. Walton (1977), 50 Ohio App. 2d 386. In the within case, since the trial court did not actually have the facts that appellant violated his parole in Puerto Rico until sentencing, it was not prejudicial error to have not informed him that he was not eligible for parole. While it would have been preferable if the trial court informed appellant that he would not be entitled to probation if a report from Puerto Rico confirmed a parole violation, it is the uncertainty in appellant's facts that rendered the trial court's decision proper. Appellant's first proposition of law is overruled. - 7 - III. Appellant, in his second proposition of law, argues that his indictment is "fatally defective" because the state failed to include "immediate" in its indictment charge. Appellant urges this court to set aside his plea of guilty and the indictment because he was not given notice of all the elements of the offense with which he was charged. Appellant's argument has no merit. R.C. 2911.02, which defines the offense of robbery, provides in pertinent part that: "(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another." Appellant's indictment stated as follows: "in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense against Hill's Department Store did use or threaten the use of force against another, to wit: Ptl. R.E. Hovan." Crim. R. 12(B) provides in part: "Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised before trial: "(1) Defenses and objections based on defects in the institution of the prosecution; "(2) Defenses and objections based on defects in the indictment, information, or complaint * * *." Crim. R. 12(G) provides: "(G) Effect of failure to raise defenses or objections. Failure by the defendant to raise defenses or objections or to make requests which must be made - 8 - prior to trial, at the time set by the court pursuant to subdivision (C), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver." Under the provisions of Crim. R. 12(B), it is incumbent on the defendant, in order to preserve his right on appeal, to object to his indictment on the ground that it was defective before his guilty plea was entered. See State v. James (1980), 68 Ohio App. 2d 227. Therefore, since appellant failed to bring to the trial court's attention his objection to the alleged defective indictment, pursuant to Crim. R. 12(E), he waived any error that might have been preserved. State v. Holden (1985), 23 Ohio App. 3d 5. Appellant's second proposition of law is overruled. Judgment affirmed. - 9 - 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 WEAVER, J.*, CONCUR. SARA J. HARPER JUDGE *Judge Margaret K. Weaver, Sandusky County Common Pleas Court, sitting by assignment. 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. .