COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60482, 60483 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY PIERCE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 14, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 240137 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES, ESQ. JOHN B. GIBBONS, ESQ. Cuyahoga County Prosecutor 2000 Standard Bldg. The Justice Center - 8th Fl. 1370 Ontario Street 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - COX, J. On June 27, 1989, defendant-appellant Timothy Pierce ("appellant") was indicted in Case Number CR-240137 on five counts of Aggravated Robbery, in violation of R.C. 2911.01. Each count contained a firearm specification. Similarly, in Case Number CR-240855, appellant was indicted on ten counts of Aggravated Robbery, in violation of R.C. 2911.01, with firearm specifications on each count. On August 24, 1989, the appellant appeared in court with counsel to enter a guilty plea. Pursuant to a plea agreement, appellant entered guilty pleas in Case Number CR-240137 to five counts of Aggravated Robbery with firearm specifications. Additionally, appellant entered guilty pleas in Case Number CR- 240855 to eight counts of Aggravated Robbery with firearm specifications. At the state's request, the trial court dismissed the two remaining counts in Case Number CR-240855. Further, as part of the plea, the state agreed to bring no further charges against the appellant. On September 22, 1990, the trial court sentenced the appellant to ten to twenty-five years on each of the thirteen counts of Aggravated Robbery to run concurrently. In addition, the trial court imposed a three-year term of actual incarceration on six of the thirteen firearm specifications to run consecutive with each other and consecutive to the ten to twenty-five year sentence imposed on the Aggravated Robbery counts. - 3 - On September 14, 1990, this court granted appellant's motion for a delayed appeal. Appellant was assigned counsel and a transcript of proceedings was provided at state expense. Appellant's first and second assignments of error are interrelated and will be discussed together. They provide: I. THE TRIAL COURT ERRED AND DENIED DEFENDANT- APPELLANT HIS RIGHT TO DUE PROCESS OF LAW IN FAILING TO CONDUCT A HEARING TO DETERMINE WHETHER THE FIREARM, WHICH WAS THE BASIS FOR THE FIREARM SPECIFICATION, WAS OPERABLE. II. THE TRIAL COURT ERRED AND DENIED DEFENDANT- APPELLANT HIS RIGHT TO DUE PROCESS OF LAW IN FAILING TO CONDUCT A HEARING TO DETERMINE WHETHER THE VARIOUS INCIDENTS IN WHICH A FIREARM MAY HAVE BEEN USED, JUSTIFIED THE IMPOSITION OF CONSECUTIVE TERMS OF INCAR- CERATION. In his first and second assignments of error appellant contends the trial court erred in failing to conduct an evidentiary hearing to determine the operability of the firearms used to effectuate the aggravated robberies. Appellant's contentions lack merit. A guilty plea constitutes a complete admission of a defendant's guilt. Crim. R. 11(B)(1); and State v. Guyton (1984), 18 Ohio App. 3d 101, 102. Moreover, a guilty plea is an admission of factual guilt which removes the issue of factual guilt from the case. State v. Wilson (1978), 58 Ohio St. 2d 52, paragraph one of the syllabus. The record in the instant case reveals that the appellant specifically pled guilty to the firearm specifications and the - 4 - underlying offenses. Since appellant pled guilty to the specifications, he cannot raise the factual issues of his guilt on appeal. Guyton, supra; Wilson, supra. Accordingly, appellant's first and second assignments of error are overruled. Appellant's third assignment of error provides: III. THE TRIAL COURT ERRED AND VIOLATED THE PROVISIONS OF O.R.C. 2929.41 IN IMPOSING SENTENCES IN EXCESS OF AN AGGREGATE MINIMUM OF FIFTEEN YEARS, WHEN THE CONSECUTIVE TERMS IMPOSED WERE FOR FELONIES OTHER THAN AGGRAVATED MURDER OR MURDER. Appellant argues the trial court's sentence exceeds the aggregate minimum term of fifteen years contained in R.C. 2929.41. Appellant's argument lacks merit. The record reveals that the appellant wa sentenced to ten to twenty-five years on each of the aggravated robbery counts to run concurrently. Therefore, appellant was sentenced to a total aggregate minimum term of ten years on the aggravated robbery counts. Appellant was also sentenced to six three-year terms of actual incarceration pursuant to R.C. 2929.71. R.C. 2929.41(E) provides in relevant part: "Consecutive terms of imprisonment imposed shall not exceed: "* * * "(2) An aggregate minimum term of fifteen years plus the sum of all additional terms of actual incarceration, when the consecutive terms imposed are imposed pursuant to Section 2929.71 of the Revised Code;" R.C. 2929.41(E)(2) limits the aggregate minimum term which - 5 - can be imposed by a trial court to fifteen years plus all three- year additional terms of actual incarceration imposed pursuant to R.C. 2929.71. State v. Hill (1984), 19 Ohio App. 3d 202, 203. Thus, appellant's concurrent sentences of ten years on the aggravated robbery counts plus the eighteen years actual incarceration imposed pursuant to R.C. 2929.71 do not exceed the sentencing mandates contained in R.C. 2929.41. Accordingly, appellant's third assignment of error is overruled. Appellant has filed a supplemental pro-se brief containing one assignment of error. Although appellant violated App. R. 16(C) by not requesting leave of court to file the additional brief, we will consider it in the interest of justice. Appellant's pro-se supplemental assignment of error provides: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DENIED DEFENDANT DUE PROCESS OF LAW WHEN IT ACCEPTED A GUILTY PLEA FROM DEFENDANT UPON AN INDICTMENT CHARGING THE DEFENDANT WITH VARIOUS FIREARM SPECIFICATIONS WITHOUT FIRST INFORMING THE DEFENDANT AND DETERMINING WHETHER DEFENDANT UNDERSTOOD THE PENALTIES IMPOSED WOULD SUBJECT HIM TO THREE-YEAR TERMS OF ACTUAL INCARCERATION AND THEREAFTER SENTENCED DEFENDANT TO EIGHTEEN YEARS ACTUAL INCARCERATION. Appellant contends the trial court failed to inform him prior to accepting his guilty plea that the penalties imposed for the firearm specifications would subject him to terms of actual incarceration. Thus, appellant argues his guilty plea was not knowingly made and violated Crim. R. 11. Appellant's contention - 6 - is not supported by the record and, therefore, lacks merit. The procedure for the acceptance of guilty pleas is set forth in Crim. R. 11(C). That rules provides in relevant part: (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 beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. In accepting a guilty plea, the trial court must substantially comply with the requirements contained in Crim. R. 11. State v. Ballard (1981), 66 Ohio St. 2d 473. Moreover, substantial compliance with Crim. R. 11 ensures satisfaction of a defendant's constitutional guarantees. State v. Johnson (1988), 40 Ohio St. 3d 130. The record reveals the following communication took place between the trial court and the appellant at the plea hearing: THE COURT: Now, as the prosecutor has - 7 - outlined, aggravated robbery is an aggravated felony of the first degree with a possible sentence of a minimum of five, six, seven, eight, nine, ten, up to a maximum of 25 years, plus a possible maximum fine of $10,000 in each event and of course there is a gun specification involved in each of these cases, which means that you would be required to serve in each of them a three year mandatory sentence that has to be served prior to and consecutive with the indefinite sentences of five to 25 in each of those cases, depending on how you sentenced; do you understand that? APPELLANT: Yes. (T. pp. 7-8). Additionally, the prosecutor stated in her opening remarks that each firearm specification carried an additional three year sentence which must be served prior to and consecutive with the underlying sentence for a possible total of thirty-nine years. (T. pp. 3, 4 and 5). The record affirmatively establishes the appellant was informed that each firearm specification carried with it a three year mandatory sentence which had to be served prior to and consecutive with the sentences on the underlying charges. Further, the record reveals the trial court substantially complied with Crim. R. 11 in accepting appellant's guilty pleas. Accordingly, appellant's pro-se supplemental assignment of error is also overruled. Judgment affirmed. - 8 - 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 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., FRANCIS E. SWEENEY, J., CONCUR. JUDGE EDWARD A. COX* (*SITTING BY ASSIGNMENT: Edward A. Cox, Judge of Court of Appeals of Ohio, Seventh Appellate District) 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. .