COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60521 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ERIC A. WARDRUM : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 23, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-249450 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN RICOTTA, ESQ. Cuyahoga County Prosecutor The Dallas Building WILLIAM R. CAINE, ESQ. 2217 East Ninth Street Assistant Prosecuting Attorney Cleveland, Ohio 44115 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Eric Wardrum, was indicted by the Cuyahoga County Grand Jury on a three-count indictment, to wit: aggravated murder, with prior calculation and design; aggravated murder with a firearm specification, and a felony murder specification. The incident that led to the charges occurred on January 27, 1986, when appellant was charged for the aggravated murder of Jeffrey Farrow. The charges were once dismissed by the State but were later reinstated. On January 20, 1990, the matter was called to trial before a three-judge panel. On March 21, 1990, the prosecuting attorney indicated to the court that a plea bargain agreement was entered into between the state and the defendant. The court, pursuant to Crim. R. 11, informed appellant of his constitutional rights after appellant's counsel informed the court that his client wished to change his plea. Appellant then pled guilty to a lesser included offense of murder. In exchange for the guilty plea, the state nolled counts one and three of the indictment and dropped the firearm and the felony murder specifications. The court sentenced appellant to a term of 15 years to life imprisonment, with credit for time already served in jail. Appellant appeals, and for the reasons that follow, we affirm. II. Appellant assigns error as follows: "THE TRIAL COURT ERRED IN FAILING TO SUBSTANTIALLY COMPLY WITH OHIO CRIMINAL RULE 11(F) BY NEGLECTING TO CLOSELY SCRUTINIZE AND PLACE UPON THE RECORD THE UNDERLYING AGREEMENT UPON WHICH APPELLANT'S PLEA WAS BASED IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES - 3 - CONSTITUTION AND ARTICLE I, SECTION 16, OF THE OHIO CONSTITUTION." Appellant, in his sole assignment of error, argues that the trial court failed to comply with Crim. R. 11(F) by not placing on the record, the plea bargain that led to his plea. Appellant further argues that his plea was involuntary because his wife was threatened with perjury if her testimony did not corroborate her prior written statements. Crim. R. 11(C) was adopted in order to safeguard a defendant's constitutional rights provided for in the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. A defendant must be personally advised by the trial court of his constitutional rights and must waive these rights voluntarily and intelligently prior to the court's acceptance of a guilty plea. Boykin v. Alabama (1969), 395 U.S. 238; McCarthy v. United States (1969), 394 U.S. 459; State v. Caudill (1976), 48 Ohio St. 2d 342, 470. Compliance with Crim. R. 11(C) provisions also provides an adequate record for review when it must be determined if a defendant voluntarily and intelligently waived his constitutional rights. State v. Stone (1975), 43 Ohio St. 2d 163, 167. In Boykin v. Alabama, supra, the United States Supreme Court held that the record must show that a defendant voluntarily and intelligently waived the privilege against self-incrimination, the right to trial by jury, and the right to confront one's accusers. Id. at 243. - 4 - A trial court, in addition to the constitutional duty to inform, is required to inform the defendant of certain other matters before accepting the guilty plea pursuant to Crim. R. 11(C). State v. Johnson (1988), 40 Ohio St. 3d 130, 132-133, certiorari denied (1989), 489 U.S. 1098. Specifically, Crim. R. 11(C)(2) requires: "(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." A reviewing court must find that the trial court did not substantially comply with Crim. R. 11 prior to vacating a defendant's guilty plea. State v. Nero (1990), 56 Ohio St. 3d 106, 108, citing State v. Stewart (1977), 51 Ohio St. 2d 86. A trial court substantially complies with Crim. R. 11 where, under the totality of the circumstances, the defendant subjectively understands the rights he is waiving and the consequences of the plea. State v. Stewart, supra. A defendant must also demonstrate a prejudicial effect when arguing that he did not - 5 - knowingly, intelligently and voluntarily enter a guilty plea. Id. at 93. Crim. R. 11(F) states as follows: "(F) Negotiated plea in felony cases. When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court." Appellant is not challenging that the trial court did not substantially comply with Crim. R. 11(C), so we need not elaborate. However, appellant's challenge pursuant to Crim. R. 11(F) is without foundation, and therefore, is without merit. The following colloquy took place between appellant and the court: "JUDGE KILCOYNE: Now, you do understand there has been discussion between your attorney and the state's attorney to the effect that if in fact you plead guilty to the amended indictment the state would recommend while obviously, as the Court has indicated, that the specification one, of firearm which would add another three years to an actual time, plus the felony murder specification would be deleted, as well as the charges in the first and third count would be nolled or dismissed, you understand that? "THE DEFENDANT: Yes, I do. "JUDGE KILCOYNE: You're in agreement with that? "THE DEFENDANT: Yes. "JUDGE KILCOYNE: Other than what we spread on the record has there been any other promises made to you to have you plead guilty here today? "THE DEFENDANT: No. "JUDGE KILCOYNE: Any threats made to you? "THE DEFENDANT: No, your Honor. - 6 - "JUDGE KILCOYNE: This is what you want to do? "THE DEFENDANT: Yes, your Honor. "JUDGE KILCOYNE: Do you have any questions before the Court accepts your plea? "THE DEFENDANT: No, your Honor. "JUDGE KILCOYNE: All right, let the record reflect that the Court is convinced the defendant understands his rights, has discussed this matter with counsel, and freely and voluntarily enters a plea of guilty, and we'll allow the defendant to enter a plea of guilty to the second count of the indictment as amended, which reflects murder, in violation of 2903.02, a nonprobationable offense, with a sentence of 15 years to life and a possible fine of up to $15,000. "The specifications are in fact deleted, and the first and third counts are nolled. "At this time the Court is ready to proceed to sentence, Mr. Gold. "MR. GOLD: You want to say something to the "THE DEFENDANT: Yes, your Honor. I'm sorry about the whole thing. It should have never happened. "I would like to apologize to the family and to the Court. "JUDGE KILCOYNE: Anything to add, Mr. Gold? "MR. GOLD: Only this, your Honor, in regard to the fine, the defendant has no funds, whatsoever. "JUDGE KILCOYNE: How old are you again? "THE DEFENDANT: 27 "JUDGE KILCOYNE: All right -- "Do you have -- the Court's ready to pronounce sentence, Mr. Gold, any reason why the court shouldn't do it now? "MR. GOLD: No, sir. - 7 - "JUDGE KILCOYNE: All right, it's the sentence of this Court the defendant is sentenced to the Ohio State Reformatory for a term of 15 years to life, he's given jail credit time, if any. "MR. GOLD: Thank you very much, your Honor. "MR. CAINE: Thank you, your Honor. "(Court is adjourned.)" It is apparent from the record that the trial court complied fully with Crim. R. 11(F). As far as we can see from the record, appellant's plea is based on the state's agreement to nolle other charges against him which the state did. We fail to find on the record any threat to appellant's wife which can be considered an indirect pressure on him to plead guilty. This court is not empowered to decide cases on suppositions and conjecture. Where the facts of a case as shown on the record are uncontroverted, our inquiry on review is to determine whether the trial court's decision based on those facts is consistent with the law. The record shows that appellant's wife was given an immunity to testify. She cannot be granted an immunity to testify and then refuse to testify. It is, therefore, not improper to order her to testify or face contempt charges. She cannot have it both ways, an immunity from prosecution, and a refusal to testify. We also fail to see from the record a threat from either the state or the court to charge appellant's wife for perjury if she fails to corroborate her prior written statements to the police, seeing that the written statement was not given under oath. Appellant's sole assignment of error is without merit and is, therefore, overruled. - 8 - Judgment affirmed. Judgment affirmed. 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. DAVID T. MATIA, C.J., and NAHRA, J., CONCUR. SARA J. HARPER 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. .