COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60233 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MICHAEL SMITH : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : MARCH 19, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-224,945 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor HENRY J. HILOW, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JOANNE FRENCH Attorney at Law 330 Standard Building Cleveland, Ohio 44113 - 2 - PATTON, J.: Defendant-appellant Michael Smith ("appellant") appeals from his conviction of one count of murder (R.C. 2903.02) to which he entered a plea of guilty. He was originally indicted for two counts of aggravated murder (R.C. 2903.01), with felony murder and aggravated murder specifications, and one count of aggravated robbery (R.C. 2911.01), with an aggravated felony specification. As the result of a plea bargain, one count of aggravated murder and the aggravated robbery count was dismissed. The remaining aggravated murder count was amended to the charge of murder and the specifications were dismissed. The appellant, in open court, waived his right to a third psychiatric evaluation. His first and second evaluations were conflicting. The appellant's timely appeal asserts two errors for our review. We reject his contentions and affirm the trial court's judgment. I. THE TRIAL COURT ERRED IN FAILING TO COMPLY WITH THE REQUIREMENTS OF RULE 11(C) OF THE OHIO RULES OF CRIMINAL PROCEDURE IN ACCEPTING APPELLANT'S PLEA OF GUILTY TO MURDER, THUS DENYING APPELLANT HIS RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. - 3 - II. INEFFECTIVE ASSISTANCE OF DEFENSE COUNSEL DENIED APPELLANT HIS RIGHTS AS GUARANTEED BY THE SIXTH AMENDMENT AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I 10 AND 16 OF THE OHIO CONSTITUTION. I. The appellant first contends the court erred in accepting his guilty plea. In particular, he avers he was not advised of the element of "intent to kill." Prior to accepting a guilty plea from a defendant, the trial court must substantially comply with the requirements of Crim. R. 11. State v. Ballard (1981), 66 Ohio St. 2d 473; State v. Stewart (1977), 51 Ohio St. 2d 86; State v. Flint (1986), 36 Ohio App. 3d 4. "Substantial compliance with Crim. R. 11(C) is determined upon a review of the totality of the circumstances to determine that no prejudice has resulted to the defendant." Flint, supra. Crim. R. 11(C)(2) 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 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. - 4 - (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. In State v. Ballard (1981), 66 Ohio St. 2d 473, 480, the court held: [A] rote recitation of Crim. R. 11(C) is not required, and failure to use the exact language of the rule is not fatal to the plea. Rather, the focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant. The appellant contends that because of his low mental capacity coupled with the fact the charge had not been fully explained, his plea cannot stand as an intelligent admission of guilt. The appellant relies on Henderson v. Morgan (1976), 426 U.S. 637, where the court affirmed the granting of the petitioner's writ of habeas corpus which alleged his plea of guilty was involuntary because he was not aware that intent to cause death was an element of the offense. The court also considered the petitioner's "unusually low mental capacity" in making its - 5 - determination that the failure to advise the petitioner of the element of intent to kill was not harmless beyond a reasonable doubt. Id. at 647. A review of Henderson reveals significant distinguishing facts. In Henderson, defense counsel did not explain to the petitioner that his plea would be an admission of the fact that he had the requisite intent. Id., 646. In this case, the appellant represented that he was aware that by pleading guilty, he would be admitting the facts of the charge: THE COURT: By entering a plea, you will be admitting completely the charge in this count of murder and you will be admitting the facts that the State would have presented against you. Do you understand that? THE DEFENDANT: Yes, your Honor. THE COURT: Okay. You will be making a complete admission. Do you understand that? THE DEFENDANT: Yes, your Honor. (Tr. 22.) In Henderson, the court stated that usually the record in pleas contains "either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused." Id., at 647. The court further stated that "even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the - 6 - offense in sufficient detail to give the accused notice of what he is being asked to admit." Id. Hence, the court reviewed the plea under the "totality of the circumstances" test. See, State v. Carter (1979), 60 Ohio St. 2d 34, 38, certiorari denied, 945 U.S. 953. Moreover, the court stated that the case was "unique because the trial judge found as a fact that the element of intent was not explained to the respondent." Henderson, supra, at 640, n. 6. In this case, the record reveals that defense counsel explained the charge to the appellant. THE COURT: Now, the State has stated that it will accept a plea from you to Count 2 of the indictment as amended. I will read the indictment or the charge as amended now for the record. The second count, as amended, provides now that on or about January 28th and 29th of 1988 in Cuyahoga County, you unlawfully and purposely caused the death of another, to wit: Lehman L. Henry. Now, that has been explained to you? -- THE DEFENDANT: Yes, your Honor. THE COURT: -- hasn't it? Your attorneys have explained that to you? THE DEFENDANT: Yes, your Honor. THE COURT: They have explained to you that that is a charge that the - 7 - State is willing to let you enter a plea to? THE DEFENDANT: Yes, your Honor. (Tr. 21.) Moreover, the appellant represented to the court, in response to the court's questions, that he understood everything that was going on at the plea hearing (Tr. 15); that he had a chance to speak with his attorneys on a number of occasions (Tr. 15); that he had "enough of an opportunity to explain to" his attorneys his side of the facts (Tr. 16); that he was satisfied his attorneys understood his side of the facts (Tr. 16); that he was explained his "rights" and "risks" (Tr. 17); and that he was free to ask questions or express any doubts during any part of the plea hearing (Tr. 26). These facts distinguish this case from Henderson, where the record was devoid of any reference of the nature of the charge against the petition. As such, Henderson is inapplicable to the case before us. The appellant also relies upon McCarthy v. United States (1969), 394 U.S. 459. In McCarthy, the Court held, inter alia, that the petitioner's guilty plea was involuntary and not otherwise in compliance with Fed. R. Crim. P. 11. The petitioner pled guilty to "wilfully and knowingly" attempting to evade income tax payments. During the plea hearing, he represented that he had not been induced by any threats or promises or that - 8 - the plea was entered of his "own volition." Id., at 460. The court found troubling the fact that the petitioner maintained throughout his sentencing hearing that his acts were merely "neglectful," "inadvertent," and committed without "any disposition to deprive the United States of its due." Id., at 470. The charged offense required the intent to be wilful and knowing. The court held that the record did not demonstrate that the petitioner entered his plea "freely and intelligently." Id. The petitioner successfully demonstrated to the court that he may have only been aware that he owed back taxes, but did not necessarily admit that he had the requisite specific intent for the crime that he repeatedly disavowed. Id., at 471. In this case, the record is devoid of evidence either at the plea or sentencing hearing that would indicate the appellant repeatedly disavowed his intent to kill. In fact, the appellant, through counsel, told the court at the sentencing hearing that he was "very sorry that this incident occurred *** and that [h]e understands that he has a responsibility for it and that he is willing to accept the time." (Tr. 32.) As such, McCarthy is distinguishable from this case. Applying the "totality of the circumstances" test as was employed in Henderson, we do not find that the appellant's plea was involuntary. Accordingly, the appellant's first assignment of error is overruled. - 9 - - 10 - II. In the appellant's second assignment of error, he contends he was denied the effective assistance of counsel. In particular, he states his counsel intimidated him into pleading guilty; hence, his plea was the result of coercion. The record belies this contention. To prevail on an ineffective assistance of counsel claim, appellant must show that his counsel violated an essential duty and thereby prejudiced his defense. State v. Lytle (1976), 48 Ohio St. 2d 391, 396-97; Strickland v. Washington (1984), 466 U.S. 668, 687. Appellant has not satisfied either part of that burden. The transcript reveals the trial judge asked the appellant if any threats or promises had been made to him and he answered in the negative. (Tr. 20-21.) He has not demonstrated his counsel violated an essential duty and prejudiced his defense. Accordingly, the second assignment of error is overruled. Judgment affirmed. - 11 - 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 Cuyahoga County Court of Common Pleas 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. NAHRA, J. CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .