COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60769 : : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND JOHN BOYD : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT AUGUST 6, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. 234130 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, Cuyahoga JONATHAN N. GARVER County Prosecuting Attorney 1404 East Ninth Street DAVID HILDEBRANDT, Assistant Suite 300 Prosecuting Attorney Cleveland, Ohio 44114 Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 -2- ANN McMANAMON, J.: John Boyd appeals his conviction for forgery, uttering, theft and receiving stolen property in Common Pleas Case No. 1 234130. He raises three assignments of error based upon the alleged denial of his sixth amendment right to counsel. Upon review, we affirm the judgment of the trial court. Boyd, who was indigent, was indicted on February 7, 1989 in Case No. 234130 for two counts of forgery (R.C. 2913.21), two counts of uttering (R.C. 2913.31), one count of theft (R.C. 2913.02), and one count of receiving stolen property (R.C. 2913.51). All counts carried a violence specification. Attorney William McGinty was assigned to represent him. Boyd had previously been indicted for four theft-related offenses with violence specifications in Case No. 235241. Attorney Clarence McLeod was assigned in these matters. He was subsequently indicted in Case No. 238699 for five theft-related offenses with violence specifications. Attorney Edward Galaska was assigned. Boyd pled not guilty to all of the charges. On June 26, 1989, Boyd appeared in court with lawyers McLeod and Galaska and entered into a plea bargain with the prosecutor in all three of his cases. In Case No. 234130, which is the subject of this appeal, Boyd pled guilty to all the counts in exchange for a nolle prosequi of one count of uttering. In the remaining two cases, some counts were nolled in exchange for guilty pleas to others. The court accepted the pleas and sen- tenced Boyd that day. 1 See Appendix. -3- Mr. McGinty, counsel for Boyd in Case No. 234130, was in trial elsewhere when the plea arrangement was completed and sen- tence imposed. Lawyers for Boyd in the other two cases however, were present at the session. It is from Boyd's conviction and sentence in Case No. 234130 that he appeals. In his first assignment of error, Boyd argues the court erred in accepting his guilty plea and sentencing him in Case No. 234130 because his lawyer in that case was not present. In his second and third assignments of error, Boyd urges the court erred in accepting that plea and in sentencing him on those offenses without complying with Crim. R. 11(C), 44(A) and (C). Since these assignments of error are related, they will be considered together. In the trial judge's opening remarks at the plea sentencing, he noted for the record that counsel in Case No. 234130 would be unavailable. The court stated: Let the record reflect that the Court is convened on three files. Mr. Ed Galaska is here representing the defendant on one of the files and Mr. Clarence McLeod is representing the defendant on another of those files. Mr. William McGinty represents the defendant on a third file, and Mr. McGinty has been detained in trial on another case. Both counsel have advised the Court that Mr. McGinty is aware that the Court is about to accept pleas to resolve these matters and that Mr. McGinty has asked counsel to step in for him. Am I correct about that, Mr. Galaska? MR. GALASKA: Yes, you are, your Honor. -4- THE COURT: Clarence, is that also your understanding? MR. McLEOD: Yes. The record shows that, before taking Boyd's guilty plea in Case No. 234130, the court fully advised Boyd of the panoply of his constitutional rights pursuant to Crim. R. 11(C). Both lawyers indicated to the court that the plea bargain arrangement was accurate and both were present when the court advised Boyd of his Crim. R. 11 rights. Moreover, both counsel spoke on behalf of Boyd in an effort to mitigate his sentence. We find that Boyd was fully represented by counsel during the taking of his guilty plea and sentencing. It is clear that there was a previous consensual arrangement between all three lawyers. It is also clear from the record that all of the lawyers negotiated the plea bargain as it related to each case before the July 26 hearing. We note that the Supreme Court, in Chapman v. Maxwell (1965), 1 Ohio St. 2d 176, found that the mere physical absence of counsel at the time an actual plea was entered did not invali- date a defendant's conviction. In Chapman, the petitioner filed a writ of habeas corpus raising the denial of his right to counsel because counsel withdrew representation three days before the petitioner appeared in court and pled guilty to an indict- ment. The Ohio Supreme Court observed: It is apparent that, until three days prior to his plea, petitioner was represented by counsel -5- and that such counsel was active on his behalf. In one of his letters, petitioner refers to an alleged arrangement the attorney had made with the prosecuting attorney in relation to the running of prior sentences if petitioner would plead guilty. It is also clear from petitioner's own statements in his letter that he changed his plea on advice of counsel. The court concluded: The basic purpose of the constitutional guarantee of counsel is that an accused be af- forded the guidance and advice of counsel during his prosecution. Petitioner had such services and acted upon the advice of his counsel. Even if true, the fact that he had no counsel present at the time he actually entered his plea did not affect the validity of the conviction where the accused acted on the advice of his counsel. There is nothing in the record to show that petitioner was forced to plead when he did, nor is there anything to indicate that at the time he entered such plea he requested and was denied counsel. It cannot be said that petitioner was denied his right to counsel. Id. at 178. In contrast to Chapman, Boyd's absent lawyer never withdrew his representation of Boyd. Rather, his lawyer notified the court that he would be detained in trial on another case, was aware the court was about to accept Boyd's guilty plea, and further requested that Boyd's two other lawyers, who were fully cognizant of the plea conditions, represent Boyd in his absence. We conclude that, as in Chapman, counsel for Boyd was active in effectuating the plea arrangement with the prosecutor. Fur- thermore, despite counsel's physical absence from the hearing, we find that Boyd's remaining two lawyers adequately represented him at his plea and sentencing. Since Boyd was represented by -6- counsel at every stage of the proceeding, we also find the issue of waiver under Crim. R. 44(A) and (C) to be inapplicable. Accordingly, the first, second and third assignments of error are overruled and the judgment of the trial court is affirmed. -7- 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 Rule of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and SARA J. HARPER, J., CONCUR ______________________________ ANN McMANAMON, JUDGE 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. -8- APPENDIX I. THE TRIAL COURT DEPRIVED APPELLANT OF HIS RIGHT TO COUNSEL AND DUE PROCESS OF LAW BY ACCEPTING APPELLANT'S GUILTY PLEAS AND SENTENCING APPELLANT IN CASE NO. 234130 IN THE ABSENCE OF HIS COURT APPOINTED COUNSEL. SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ACCEPTING APPELLANT'S GUILTY PLEAS IN CASE NO. 234130 IN THE ABSENCE OF APPELLANT'S COURT-APPOINTED COUNSEL WITHOUT COMPLYING WITH THE PROCEDURAL SAFEGUARDS SET FORTH IN CRIMINAL RULES 11(C) AND 44(A) AND (C). III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY IMPOSING SENTENCE IN CASE NO. 234130 IN THE ABSENCE OF APPELLANT'S COURT-APPOINTED COUNSEL WITHOUT COMPLYING WITH THE PROCE- DURAL SAFEGUARDS SET FORTH IN CRIMINAL RULE 44(A) AND (C). .