COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60872 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DOUGLAS SHANIUK : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1992 CHARACTER OF PROCEEDING: Criminal proceeding from Common Pleas Court Case No. CR-252846 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. WENDY I. WILLS, ESQ. Cuyahoga County Prosecutor 1070 Statler Office Tower JOHN A. CLOUGH, ESQ. 1127 Euclid Avenue Assistant Prosecuting Attorney Cleveland, Ohio 44115-1601 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: I. Appellant, Douglas Shaniuk, was indicted by the Cuyahoga County Grand Jury on May 8, 1990 for Aggravated Burglary with aggravated felony specifications, pursuant to R.C. 2911.11, and Theft with violence specifications, pursuant to R.C. 2913.02. Appellant entered a plea of not guilty at his arraignment. On October 18, 1990, appellant filed a motion in limine to exclude testimony concerning objects outside the chain of custody. In addition, appellant also filed a motion to suppress identification testimony. On October 22, 1990, a hearing was held on appellant's two motions. The trial court denied both motions. Appellant subsequently withdrew his former plea of not guilty and entered a plea of guilty to Burglary with specifications. In consideration for appellant's guilty plea, the state amended count one from Aggravated Burglary to Burglary. The state also nolled count two of the indictment. Appellant was read his rights and sentenced by the trial court to a term of eight years to fifteen years in prison and costs. We affirm. II. Appellant assigns error as follows: "I. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY ACCEPTING APPELLANT'S GUILTY PLEA, BECAUSE APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS OF THE CONSTITUTION, AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. "A. Defense counsel improperly induced Appellant Shaniuk to plead guilty by assuring him that he would receive a sentence of probation. - 3 - "B. Defense counsel improperly induced Appellant Shaniuk to plead guilty to burglary with aggravated felony specifications, when the elements of the offense were denied. "II. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY ACCEPTING APPELLANT'S GUILTY PLEA WITHOUT SUBSTANTIALLY COMPLYING WITH THE DUE PROCESS CLAUSE OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. "A. Appellant's guilty plea was constitutionally invalid because it was not voluntarily and intelligently pleaded, since the Appellant was induced by the misrepresentation of counsel. "B. Appellant did not make a knowing and voluntary guilty plea under Ohio Criminal Rule 11(C), in that he did not understand the charges against him and the penalties therefor. "III. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY DENYING APPELLANT'S MOTION TO SUPPRESS AND MOTION IN LIMINE." Appellant argues in his first assignment of error that his counsel induced him into pleading guilty to the charges against him and promised him a sentence of probation instead of a prison term. Appellant argues that such inducement constituted ineffective assistance of counsel. Appellant's argument has no merit. The record does not support appellant's allegations against his counsel. The only mention in the record concerning probation was a statement by appellant concerning a conversation with his former attorney, Mr. Roger Pryor, who withdrew from appellant's case before the guilty plea was entered into by appellant. Appellant made the following statement to the court: "He said, 'Well, I'll check into it.' "We discussed the case. He discussed the fact that if this was my first case, you know, he would have - 4 - no problem -- he said, 'We will have no problem getting you probation, Doug, but this, that and this.'" "He" referred to appellant's former counsel, Mr. Pryor. The above statement does not reveal any inducement or coercion. Moreover, the within case was not appellant's first, and the attorney's statement was clear that from his experience, the result could be different if that was appellant's first case, which it was not. Assuming arguendo that inducement was found, Mr. Rogers was not appellant's counsel at the time he pled guilty to the charges. We fail to see how appellant could rely on an inducement made by counsel who no longer represented him at the time of his plea. At the time of appellant's guilty plea, the following colloquy took place between appellant's new counsel, the court and appellant: "THE COURT: Okay. I just wanted to make sure that we are on the same wave length. "Mr. Incorvaia. "MR. INCORVAIA: Yes, your Honor. I have had a chance to discuss this matter with Mr. Shaniuk. I have afforded him his constitutional rights, and the statutory rights. There have been no promises or threats and no coercion. I have discussed at some length with him regarding what this would entail. He has informed me that he wishes at this time to withdraw his previously entered not guilty plea and enter a plea to the amended charge of count one, with the understanding that count two will be nolled. "Thank you. "THE COURT: Thank you, Mr. Incorvaia. - 5 - "Mr. Shaniuk, did you hear and understand everything that was just said by the Prosecutor and by your attorney, Mr. Incorvaia? "MR. SHANIUK: Yes, your Honor. "THE COURT: How far did you go in school? "MR. INCORVAIA: College degree. "THE COURT: At this time as you stand before the Court, are you under the influence of any alcohol or narcotic drugs or medication of any kind? "MR. SHANIUK: Yes, I am. I am under medication for pain and muscle relaxers. "THE COURT: Try to speak up. "MR. SHANIUK: I take these for my muscles, because of my hands, and I take some other kinds at night, for severe depressants. "THE COURT: Okay. Is that medication in any way affecting your ability to hear and understand what is happening right now? "MR. SHANIUK: No. "THE COURT: Does it affect your ability to make decisions? "MR. SHANIUK: No. "THE COURT: Okay. "MR. SHANIUK: Not to my knowledge, anyway. "THE COURT: Do you feel you are clear-headed right now? "MR. SHANIUK: I am hearing everything you are saying." We find nothing in the colloquy to indicate that appellant's counsel, Mr. Incorvaia, induced him to make any plea. Appellant further charges that his counsel prejudiced his case by inducing him to plead guilty to burglary instead of a - 6 - lesser offense of theft or receiving stolen property. We again fail to see any evidence that supports appellant's claim of inducement by his counsel, and we reject appellant's argument that his claim of a broken leg was sufficient to draw an inference that he could not commit burglary. "Since appellant's trial counsel's performance did not fall below acceptable standards, he cannot be judged ineffective." State v. Delgado (June 11, 1992), Cuyahoga App. No. 60587, 60588, unreported. See also State v. Bradley (1989), 42 Ohio St. 3d 136; Strickland v. Washington (1984), 466 U.S. 668. Appellant's first assignment of error is overruled. III. Appellant argues in his second assignment of error that the trial court erred by accepting his plea when it was not knowingly and intelligently made. Appellant argues that his plea was involuntary because he was on pain medication. Appellant further argues that since he was not given the police report as requested, he could not have understood what "was happening," therefore, the court violated Crim. R. 11(C). We disagree. This court held in State v. Wardrum (Apr. 23, 1992), Cuyahoga App. No. 60521, unreported, that: "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 - 7 - 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. "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 - 8 - (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 knowingly, intelligently and voluntarily enter a guilty plea. Id. at 93." See also State v. Hinzman (Oct. 3, 1991), Cuy. App. No. 59062, unreported. In the case sub judice, the following colloquy took place between the court and appellant: "THE COURT: Do you feel you are clear-headed right now? "MR. SHANIUK: I am hearing everything you are saying. "THE COURT: Okay. I am sure you are aware, sir, that you have certain basic constitutional rights. I know that you have gone over these before, but I want to review them with you so that now we have a record of them. "Do you understand what you are going to be giving up if you should plead guilty this morning? And please feel free to interrupt me if anything [sic] you don't understand. "There is a right to a trial by jury. You may waive that right to have your case tried by a Judge of this Court without a jury. You have a right to confront, to cross-examine the State's witnesses against you. You have a right to subpoena witnesses, to have them brought in here to testify in your defense. "You have a right to a lawyer throughout these proceedings, either retained by you or appointed by the Court. At trial you have a right to testify by yourself, or you may choose not to testify, and no one can comment on your silence at trial. "Furthermore, you may not be compelled to give testimony against yourself. - 9 - "Finally, sir, you are not required to prove a thing. The State of Ohio has to prove its case against you by evidence beyond a reasonable doubt. "Now, do you understand that by entering a plea of guilty, you will be giving up all of these rights? "MR. SHANIUK: Yes, sir. "THE COURT: Do you understand that as well, that punishment for the suggested plea, may be a term of imprisonment, of a minimum sentence by this Court, of eight, nine, ten, eleven, or twelve years, up to a maximum of fifteen years, and/or a fine of up to "MR. SHANIUK: Yes, your Honor. "THE COURT: Now at this time, sir, it is my understanding that you are still on probation to this Court, is that correct? "MR. SHANIUK: Yes, your Honor. "THE COURT: Okay. Are you aware that a finding of guilt in this case may subject you to an additional penalty as a probation violator in this case? "MR. SHANIUK: Yes, your Honor. "THE COURT: Okay. You are a United States citizen, are you not? "MR. SHANIUK: Yes, your Honor. "THE COURT: Okay. Now, the indictment against you, Mr. Shaniuk in this case charges in the first count, that on ***. "Now, knowing all of these things, Mr. Shaniuk, how do you plead to that count? "MR. SHANIUK: Guilty. "THE COURT: Are you in fact guilty of these offenses, sir? "MR. SHANIUK: Yes, your Honor. "THE COURT: Has anybody made any threats or promises in order to get you to plead guilty? - 10 - "MR. SHANIUK: No, your Honor. "THE COURT: Whose desire is it to enter this plea of guilty at this time, sir? "MR. SHANIUK: My own. "THE COURT: Let the record show then, that the Court finds the Defendant understands his constitutional rights and voluntarily and willingly waives those rights, and enters a plea of guilty to the amended first count of the indictment. "At this time, the Court will accept that plea, and has also granted the motion of the State to amend the first count by deleting the language in which at the time any person was present or likely to be present. And also the motion of the State to dismiss the second count of the indictment in its entirety. "Mr. Incorvaia, have you discussed with your client the question of whether he would like to be sentenced at this time or referred for a pre-sentence investigation? "MR. INCORVAIA: Yes, your Honor." The record shows that the trial court complied fully with Crim. R. 11(C). There is no evidence that appellant's level of understanding was altered by the pain medications he was taking. Appellant also has no statutory or constitutional right to the police report which was made in the process of the prosecution of his case. We find that appellant knowingly, and intelligently waived his rights, therefore, his guilty plea was voluntarily given. Appellant's second assignment of error is without merit and is overruled. IV. Appellant, in his third assignment of error, argues that the trial court erred by denying his motion to suppress and motion in limine. A counseled plea of guilty is an admission of factual - 11 - guilt which removes issues of factual guilt from the case. State v. Wilson (1979), 52 Ohio St. 2d 52. Appellant's plea of guilty is a complete admission of his guilt. See Crim. R. 11(B)(1). By pleading guilty, a defendant waives the right to challenge his conviction on the ground that his motion to suppress and/or his motion in limine should have been granted. Appellant's argument that he pled guilty because of the trial court's failure to sustain his motions is unpersuasive. Appellant's third assignment of error is overruled. The trial court's judgment is affirmed. - 12 - 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. FRANCIS E. SWEENEY, P.J., and ANN McMANAMON, 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. .