COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60760 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION WENDELL GORE : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-246637 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor TIMOTHY MILLER, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: EUGENE P. KRENT The Hayes Building 6785 West 130th Street Parma Heights, Ohio 44130 - 2 - KRUPANSKY, J.: Defendant appeals from his conviction for felonious assault, 1 R.C. 2903.11. The relevant facts follow: On November 17, 1989, at the Old Arcade in Cleveland, Ohio, a woman walked out of a bar located in the building and went to a nearby restroom. On her way she passed defendant who was seated with another man. As she was standing at a mirror inside the restroom, she noticed defendant standing in the open doorway. She inquired as to his purpose for being there. Thereupon, defendant stepped into the restroom, grabbed the woman's arm and began to pull her farther inside. The woman struggled with defendant; at that point, defendant pulled out a knife and pressed its blade against the woman's chin. The woman then threw up her arm, broke away from defendant and ran screaming for help. Building security personnel came to her aid and defendant was arrested. After a preliminary hearing in Cleveland Municipal Court, defendant was bound over to the Cuyahoga County Grand Jury, which then issued a one count indictment against defendant for felonious assault, R.C. 2903.11. The indictment also carried two violence specifications. Defendant pleaded not guilty at his arraignment January 31, 1990 and was assigned counsel. After several continuances, 1 The facts concerning the incident for which defendant was arrested are taken from the transcript of defendant's sentencing hearing. - 3 - defendant waived his right to a speedy trial. On July 13, 1990, defendant's attorney filed a motion to withdraw as counsel, consequently, on July 20, 1990, the trial court appointed new counsel for defendant. On September 6, 1990, defendant appeared in court with his new counsel, retracted his former plea of not guilty and entered a plea of guilty to the indictment. After ascertaining defendant's plea was voluntary pursuant to Crim. R. 11, the trial court accepted the plea and referred defendant for a presentence investigation. On October 5, 1990, the trial court held a sentencing hearing. The trial court stated it had the presentence report, stated the facts of the case against defendant, permitted defense counsel and defendant an opportunity to speak, and noted that defendant had a history of offenses of violence. The trial court thereupon sentenced defendant to a term of incarceration of five to fifteen years. Defendant has filed a timely appeal from his conviction to this court and now cites two assignments of error for review. Defendant's first assignment of error follows: THE COURT COMMITTED PREJUDICIAL ERROR WHEN IT ACCEPTED A GUILTY PLEA FROM THE DEFENDANT WITHOUT FIRST INFORMING AND EXPLAINING TO DEFENDANT THAT "KNOWINGLY" CAUSING HARM WAS AN ELEMENT OF THE OFFENSE. This assignment of error lacks merit. - 4 - Defendant argues his plea to felonious assault was not made voluntarily, intelligently or knowingly. He contends the record reflects he lacked the requisite intent required for a conviction and creates doubt that the nature of the charge was adequately explained to him. Defendant's argument is unpersuasive. Ohio Rule of Criminal Procedure 11 reads in relevant part: (C) Pleas of Guilty and No Contest in Felony Cases. * * * (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. The Ohio Supreme Court has recently interpreted Crim. R. 11 as follows: - 5 - *** Literal compliance with Crim. R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. Stewart, supra. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St. 2d 34, 38, 14 O.O.3d 199, 201, 398 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 953. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim. R. 52(A). The test is whether the plea would have otherwise been made. Id. State v. Nero (1990), 56 Ohio St. 3d 106, 108. In the case sub judice, there was, in fact, literal compliance with Crim. R. 11(C). The trial court judge carefully explained the charges to which defendant was pleading guilty. Regarding the charge of felonious assault, the following exchange occurred: THE COURT: All right. Now, the charge reads that on November 17, 1989 in Cuyahoga County that you did unlawfully and knowingly cause or attempt to cause physical harm to Debra Profancik, P-R-O-F-A-N-C-I-K, by means of a deadly weapon or a dangerous ordnance, which is specifically alleged to be a knife. So that's the charge against you. THE DEFENDANT: Yes, sir. THE COURT: Do you understand what that charge is? - 6 - THE DEFENDANT: Yes, sir. THE COURT: Now, if you plead guilty to that charge, you would be admitting that what I just read to you is true and you would be giving up your right to raise any potential defenses to the charge. * * * Do you understand that? THE DEFENDANT: Yes. (Emphasis added.) The trial court detailed the possible sentences it could impose and fully explained all the rights defendant was relinquishing in making his plea. The judge checked with defendant as to whether he had any questions, asked defendant if he had enough time to consult with his attorney, asked if he had told the attorney "everything you can think of that's important to your side of the case," and asked defendant if he was satisfied with counsel's efforts. To each question, defendant answered "yes." After ascertaining there had been no promises made, the court asked defendant his plea to the charge. Defendant stated "guilty." The trial court then inquired of defendant about the circumstances leading up to the charge. The following was the exchange: THE COURT: Tell me what this incident was, what did you do, what happened? THE DEFENDANT: At the time I visited, I don't recall anything because I was intoxicated. - 7 - THE COURT: You were visiting a Deborah Profancik's house or something? THE DEFENDANT: No, sir. I was coming out of a bar. THE COURT: Out of a bar? THE DEFENDANT: Yes. THE COURT: I see. And you just don't remember what happened? THE DEFENDANT: No, sir. It is apparent from the exchange between the court and defendant, defendant was aware of some of the circumstances surrounding the offense but was unable or unwilling to state with specificity his entire role in the offense and opted to state he did not remember. The prosecutor then outlined the events of the incident and told the trial court defendant was "drunk." The trial court thereupon accepted defendant's plea and referred defendant to the probation department for a presentence report. This court has stated the following: With respect to guilty pleas which are accompanied by protestations of innocence, we note that the United States Supreme Court, in North Carolina v. Alford (1970), 400 U.S. 25, 37, held that an individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unable or unwilling to admit his participation in the acts constituting the crime. The Court further held that such pleas may be intelligently entered where there is a factual basis for the plea which negates the claim of innocence. Id. at 37-38. - 8 - This court has applied the pronouncements of North Carolina v. Alford, supra, and has held that, depending upon the facts surrounding the charge, there may be a determination that the accused has made an intelligent, voluntary plea. Cf. State v. Casale (1986), 34 Ohio App. 3d 339, 340; State v. Coleman (July 16, 1987), Cuyahoga App. 52462, unreported; State v. Reeder (March 17, 1988), Cuyahoga App. 52508, unreported; State v. Preston (February 2, 1989), Cuyahoga App. 55036, unreported. * * * "Knowledge" is cast in terms of an awareness of the probability that one's conduct will cause a certain result. State v. Smith (Feb. 27, 1986), Cuyahoga App. Nos. 50259 & 50280, unreported at 11. It is not necessary for the state to prove that appellant acted with purpose or intent to convict him for a crime based upon knowledge as defined in R.C. 2921.01(B). State v. Bissantz (1982), 3 Ohio App. 3d 108, 111; State v. Linson (October 9, 1989), Cuyahoga App. No. 56100, unreported. * * * Applying the foregoing, we conclude that defendant's guilty pleas to the charges of felonious assault were voluntarily and intelligently entered, as the factual basis presented in connection with the pleas negated defendant's claim of innocence. State v. Bernard (December 5, 1991), Cuyahoga App. No. 59452, unreported. Similarly, in the case sub judice, despite defendant's claim after pleading guilty to the charge of felonious assault that he didn't remember what happened, it is obvious from the totality of the circumstances defendant understood the implications of his plea and made it voluntarily and knowingly. Furthermore, the record does not demonstrate any indication the plea would not - 9 - "otherwise have been made." State v. Nero, supra. Therefore, the trial court did not err in accepting defendant's plea of guilty to felonious assault. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: DEFENDANT WAS DENIED EFFECTIVE COUNSEL AT THE PLEA AND SENTENCING STAGES OF THE PROCEEDINGS IN THE TRIAL COURT. This assignment of error also lacks merit. Defendant argues he had ineffective assistance of counsel because his counsel allowed him to plead guilty to offenses for which defenses existed and the state lacked sufficient evidence to obtain a conviction. Defendant cites Rucker v. State (1928), 119 Ohio St. 189, in support of his contention; however, his argument is unpersuasive. The test to be applied in showing ineffective assistance of counsel is that offered in Strickland v. Washington (1984), 466 U.S. 668; accord, State v. Bradley (1989), 42 Ohio St. 3d 136, 141. See also, State v. Arvanitis (1986), 36 Ohio App. 3d 213. The Supreme Court adopted a two-pronged test to determine if counsel's assistance was so defective as to require reversal; viz., (1) defendant must show counsel's performance was deficient and (2) the defendant must show the deficient performance prejudiced the defense. State v. Lytle (1976), 48 Ohio St. 2d 391, vacated on other grounds 436 U.S. 910. The burden of - 10 - proving ineffectiveness rests on the defendant. State v. Smith (1985), 17 Ohio St. 3d 98. Initially, the determination has already been made that defendant's plea was voluntary. Defendant thus admitted his guilt on the felonious assault charge. The fact that defenses may have existed is to that extent moot. Moreover, defendant's reliance on Rucker v. State, supra, is misplaced for the reason that Rucker dealt with a charge of homicide and the effect of insanity and intoxication on specific intent crimes. "Specific intent" is defined in R.C. 2901.22(A), "knowingly" is defined in R.C. 2901.22(B). Therefore, the law as stated in Rucker is inapplicable to the case sub judice. Secondly, defendant fails to show counsel's performance on his behalf was deficient. Rather, a review of the record in the case sub judice shows defense counsel's actions were within "the wide range of reasonable professional assistance." Strickland, supra, at 689. The transcript of defendant's plea hearing reveals the following exchange occurred between defendant and the trial court: THE COURT: Have you and Mr. Morgan had enough time to talk about the case? THE DEFENDANT: Yes, sir. THE COURT: And have you told him everything that you can think of that's important to your side of the case? THE DEFENDANT: Yes. THE COURT: And has he done what you've asked him to do? - 11 - THE DEFENDANT: Yes. THE COURT: You're satisfied with his efforts? THE DEFENDANT: Yes. THE COURT: All right. Then am I correct in thinking that if you plead guilty to this charge, you will be pleading guilty of your own free will? THE DEFENDANT: Yes. (Emphasis added.) From the foregoing exchange, contrary to defendant's assertion, there is no evidence that counsel "ignored an essential element of the crime" since the crime of felonious assault does not require "specific intent." Rather, since defendant stated he told counsel "everything" and licensed counsel is presumed competent, this court must presume counsel evaluated the intoxication issue on the state's evidence and determined as a component of trial strategy the best approach for defendant was to plead to the indictment. Moreover, counsel comported himself in a professional manner, was obviously prepared for the hearing, and was an effective advocate for his client in his discussion with the trial court. Therefore, counsel's performance in the case sub judice was not deficient. Furthermore, assume arguendo defendant met the first prong of the Strickland test, defendant must then show, absent the deficient performance, the hearing's outcome would have been different. The state was prepared to present sufficient evidence of felonious assault upon which defendant could have been - 12 - convicted absent any deficiency claim. Therefore, defendant's second assignment of error is not well taken and is overruled. The record of the case sub judice thus affirmatively demonstrates both that defendant's plea was voluntary and defendant was not denied effective assistance of counsel. Judgment affirmed. - 13 - 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. NAHRA, P.J., and PATTON, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .