COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60834, 60835 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION CARL J. CIERO, JR. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case Nos. CR-218129 & CR-218648. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Laurence R. Snyder Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Jonathan N. Garver, Esq. 1404 East Ninth Street Third Floor Cleveland, Ohio 44114 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Carl J. Ciero, Jr., appeals his conviction for drug abuse in violation of R.C. 2925.11 and possession of criminal tools in violation of R.C. 2923.24 in case number 218129; and in case number 218648 he appeals his conviction for aggravated burglary in violation of R.C. 2911.11 and theft in violation of R.C. 2913.02. The cases were before the same trial judge, and are consolidated on appeal. Appellant was convicted at a hearing held on September 23, 1987. He subsequently requested, and was granted, a delayed appeal. Due to the fire which occurred in the Justice Center, there is no verbatim transcript available of the proceedings in these cases. Appellant properly prepared a statement under App. R. 9(C), and the prosecutor filed objections. The trial judge approved and adopted the statement submitted by the appellee. The court's journal reflects that appellant filed a motion for treatment in lieu of conviction pursuant to R.C. 2951.041. At a hearing on September 23, 1987, the judge found the appellant eligible for treatment. The judge advised appellant of his constitutional rights and appellant pled no contest. The prosecutor recited the evidence, and the court made a finding of guilty of the charges in the indictment as to all counts. The judge then stayed the criminal proceedings and ordered a period of rehabilitation for the appellant of not less than two years, to be supervised by the county probation department. - 3 - The judge's statement of the record contains the following: The plea proceeding was regular. Defendant-appellant's demeanor and answers were appropriate. On or about September 30, 1987, defendant-appellant was admitted to Glenbeigh Treatment Center. On or about October 9, 1987, Glenbeigh notified the court that defendant-appellant had brought drugs into the facility. Defendant-appellant was ordered to court, and when he failed to appear, a capias was issued. On October 29, 1987, appellant was brought before the court and was found to have violated the conditions of rehabilitation. Appellant's motion to withdraw his former plea was denied. The judge issued an order which stated the proceedings were no longer stayed, and that the appellant had been previously found guilty. The judge sentenced appellant to a term of one year on each count, to run concurrently, in case number 218129; and in case number 218648 he was sentenced to a term of five to twenty-five years on count one, and on count two he was given one year. These terms were to be served concurrently with each other, but consecutively with the sentence in case number 218129. Appellant's first assignment of error. I APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN HIS APPEAL BY THE ABSENCE OF A COMPLETE TRANSCRIPT OF THE PROCEEDINGS RELATED TO HIS NO CONTEST PLEAS, TERMINATION OF THE ORDER STAYING CRIMINAL PROCEEDINGS AND HIS MOTION TO WITHDRAW NO CONTEST PLEAS. - 4 - When a transcript is unavailable, an appellant has the duty under App. R. 9(C) to submit a statement of proceedings to the trial judge and the appellee. The rule states: (C) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to Rule 10, who may serve objections or propose amendments thereto within ten days after service. Thereupon, the statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act thereon prior to the time for transmission of the record pursuant to Rule 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal. Appellant's version of the proceedings were properly submitted, and after objection, the judge adopted and approved the statement of the prosecution. The purpose of App. R. 9(C) is to allow an appellant to have a full and fair appeal where there is no verbatim transcript. See State v. Vidmar (November 21, 1990), Cuyahoga App. No. 56143, unreported, citing to State v. Richards (November 1, 1990), Cuyahoga App. No. 57664, unreported, and State v. Grant (October 4, 1990), Cuyahoga App. No. 57537, unreported. Appellant argues that he has not been provided effective assistance of counsel on appeal due to the absence of a - 5 - complete transcript. The standard by which to measure ineffective assistance of counsel is set forth in State v. Bradley (1989), 42 Ohio St. 3d 136, at paragraph two of the syllabus. 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St. 2d 391, 2 O.O. 3d 495, 358 N.E. 2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) Counsel for appellant followed the steps required under the criminal rules to preserve appellant's right to a full and fair appeal. The record has been submitted to this court, and no prejudice resulted to the appellant through any action or inaction of counsel. Appellant has not been denied effective assistance of counsel because of the absence of a verbatim transcript, since a statement pursuant to App. R. 9(C) allows for a full and fair appeal. Appellant also argues that the trial court erred when it adopted the prosecution's version of the proceedings. If the judge determines that either the plaintiff or defendant's summary of the proceedings is consistent with his recollection of the facts, he may adopt same in toto. To suggest error then, in that situation, is disingenuous. It is only when a judge is unable to intelligently settle and approve a 9(C) statement is the - 6 - appellant entitled to a new trial, State v. Polk (March 7, 1991), Cuyahoga App. No. 57511, unreported. In Polk, the judge admitted having no independent recollection of the testimony. Here, there is no evidence that was the case. It is entirely probable that the judge substantially recalled the proceedings in accord with the prosecutor's offering. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE TRIAL COURT ERRED IN MAKING A FINDING OF GUILTY PRIOR TO ORDERING A PERIOD OF REHABILITATION PURSUANT TO SECTION 2951.041, OHIO REV. CODE (TREATMENT IN LIEU OF CONVICTION). Under certain circumstances a judge may grant an offender treatment in lieu of conviction under R.C. 2951.041. The statute reads in pertinent part: (A) If the court has reason to believe that an offender charged with a felony or misdemeanor is a drug dependent person or is in danger of becoming a drug dependent person, the court shall accept, prior to the entry of a plea, that offender's request for treatment in lieu of conviction. If the offender requests treatment in lieu of conviction, the court shall stay all criminal proceedings pending the outcome of the hearing to determine whether the offender is a person eligible for treatment in lieu of conviction. At the conclusion of the hearing, the court shall enter its findings and accept the offender's plea. - 7 - (B) The offender is eligible for treatment in lieu of conviction if the court finds that: * * * (5) The offender is not charged with any offense defined in section 2925.02, 2925.03, or 2925.21 of the Revised Code. Upon such a finding and if the offender enters a plea of guilty or no contest, the court may stay all criminal proceedings and order the offender to a period of rehabilitation. If a plea of not guilty is entered, a trial shall precede further consideration of the offender's request for treatment in lieu of conviction. Based on R.C. 2951.041(A) and (B)(5), the trial court clearly has the authority to accept a plea of no contest. When the offender does not succeed in his program of treatment, R.C. 2951.041(F) prescribes: . . . If the facility or program reports to the probation officer that the offender has failed treatment, has failed to submit to or follow the prescribed treatment, or has become a discipline problem, if the offender does not satisfactorily complete the period of rehabilitation or the other conditions ordered by the court, or if the offender violates the conditions of the period of rehabilitation, the offender shall be arrested as provided in section 2951.08 of the Revised Code and removed from the facility or program, and the court immediately shall hold a hearing to determine if the offender failed treatment, failed to submit to or follow the prescribed treatment, did not satisfactorily complete the period of rehabilitation or any other condition ordered by the court, or violated any condition of the period of rehabilitation. If the court so determines, it immediately shall enter an adjudication of guilt and shall impose upon the offender a term of imprisonment. - 8 - In order to properly follow the procedure set forth in R.C. 2951.041, the trial judge first must hold a hearing and determine whether or not the offender is eligible for treatment in lieu of conviction. If he is, the judge must then accept either a plea of no contest or of guilty. At this point, the criminal proceedings are to be stayed. Only upon the failure of the offender to complete his program is another hearing held, at which time a finding of guilt may be rendered. In the case before us, the trial court may have erred by entering the adjudication of guilt before the appellant failed to complete the terms of his rehabilitation. The error, however, was harmless as appellant did, in fact, violate the terms of his rehabilitation, and was then sentenced in accordance with the law. Appellant's second assignment of error is overruled. Appellant's third assignment of error. III THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW NO CONTEST PLEAS WHICH WAS MADE PRIOR TO SENTENCING IN ACCORDANCE WITH CRIM. R. 32.1. In Ohio, the procedure for the withdrawal of a plea of no contest is prescribed in CR. R. 32.1 as follows: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. - 9 - Appellate review of a trial court's denial of a motion to withdraw a plea is limited to the determination of whether or not the trial court abused its discretion. State v. Smith (1977), 49 Ohio St. 2d 261; State v. Peterseim (1980), 68 Ohio App. 2d 211; and State v. Posta (1988), 37 Ohio App. 3d 144. Abuse of discretion requires that the court's attitude is unreasonable, arbitrary or unconscionable. Posta, supra, citing to Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217. Appellant made an oral motion to withdraw his plea of no contest subsequent to his violation of the terms of rehabilitation, but before sentencing. The record reflects appellant was given an opportunity to address the court. On appeal, appellant argues that he was under the influence of cocaine at the time of the plea and his judgment was impaired; that he did not understand the consequences of his plea; and that he did not understand the court could vacate its stay of criminal proceedings and impose sentence. This court has held that the trial court does not abuse its discretion in denying a motion to withdraw a plea where appellant does not argue his innocence or the involuntariness of the plea, but merely claims he did not understand the consequences of his plea. State v. Pavlos (April 28, 1988), Cuyahoga App. No. 53772, unreported. At the hearing, the trial court was in the best position to evaluate the likelihood that appellant was under the influence of cocaine. The judge obviously did believe the appellant had a - 10 - serious substance abuse problem, or he would not have considered appellant's request for treatment in lieu of conviction. However, in his 9(C) statement the judge noted that the plea proceedings were regular and that the appellant's demeanor and answers were appropriate. Given these observations, we cannot conclude the judge abused his discretion in refusing to allow the appellant to withdraw his plea. Appellant's third assignment of error is overruled. Appellant's fourth assignment of error. IV THE TRIAL COURT ERRED IN TERMINATING THE STAY ENTERED PURSUANT TO SECTION 2951.041, OHIO REV. CODE. Appellant contends that the trial judge vacated the stay of criminal proceedings because appellant fled from the rehabilitation facility. However, the record states: On or about September 30, 1987, defendant-appellant was admitted to Glenbeigh Treatment Center. On or about October 9, 1987, Glenbeigh notified the court that defendant-appellant had brought drugs into the facility. Where an appellant who has been given an opportunity for rehabilitation brings drugs into the treatment facility, the court does not abuse its discretion by vacating the stay of criminal proceedings under R.C. 2951.041 and imposing sentence. Appellant's fourth 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 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 JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY 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. .