COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60918 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JAMES L. FISHER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 6, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 232337. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Lindsay Jerry Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Marlene N. Lally, Esq. Lynch & Lynch Co., L.P.A. 711 Statler Office Tower East 12th St. & Euclid Avenue Cleveland, Ohio 44115 - 2 - SWEENEY, JAMES D., J.: Defendant James L. Fisher appeals his conviction for aggravated drug trafficking in violation of R.C. 2925.03(A)(7). Appellant was sentenced to a term of incarceration of five to twenty-five years, of which five years is actual incarceration; and fined $7,500.00. Although appellant was indicted on five separate counts, the last four counts were nolled subsequent to appellant's plea of guilty on count one. This appeal arises out of appellant's plea. The first section of the indictment form states the names of the parties; that the indictment is for drug law R.C. 2925.03; the date of the offense; the term of the court; and the case number. The indictment was signed by the foreman of the grand jury and the prosecuting attorney, and was journalized on November 12, 1988. The body of the first indictment reads: The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO, Do find and present, that the above named Defendant(s), on or about the date of the offense set forth above, in the County of Cuyahoga, unlawfully and purposely did sell or offer to sell a controlled substance, to- wit: Cocaine, Schedule II Drug, being an amount equal to or exceeding three times the bulk amount, . . .. At the plea hearing on January 31, 1989, it was established that appellant did not have a prior offense. The dialogue with the court was as follows: - 3 - MR. WILLIS: Also, Your Honor, I want to call to the Court's attention that the James Fisher mentioned as having the previous offense is not this James Fisher. MR. JERRY: That's correct. MR. WILLIS: That should be excluded. MR. JERRY: That is my mistake. The prior conviction does not refer to Mr. Fisher, but to the co-defendant in this case. THE COURT: Well, in the first count, it says that James Fisher was convicted in 222884 -- MR. WILLIS: No. That's -- MR. JERRY: That was incorrect. THE COURT: Therefore, you're going to delete the furthermore specification? MR. JERRY: In Count 1 and 2. MR. WILLIS: In other words, James Fisher is not that James Fisher. THE COURT: Okay. Thank you. MR. WILLIS: It is incorrectly charged. He has no previous offenses. THE COURT: This offense then comes for the sale of cocaine in an amount equal to or exceeding three times the bulk amount? MR. JERRY: Yes, Your Honor. * * * MR. WILLIS: Yes. On behalf of the defendant, Mr. Fisher, with the understanding that the furthermore and the reference to another James Fisher having been convicted of the offense is excluded and will not be considered or impacted in any way against this defendant, the defendant will tender to - 4 - the Court a plea of guilty to that particular charge, exclusive of the prior offense, and I can represent to the Court that I have advised Mr. Fisher as to all of his constitutional rights with reference to the accusation against him, and I'm satisfied that his plea is voluntary, and I would recommend to the Court that it be accepted. Thank you. (T. 3, 4, 5.) The court, after closely questioning appellant as mandated in Cr. R. 11, entered a finding of guilty. THE COURT: The record will reflect that the Court finds Mr. Fisher's plea is knowingly, intelligently, and voluntarily entered, and the Court finds Mr. Fisher to be guilty in the first count of the indictment, and on the recommendation of the prosecuting attorney, the remaining count will be nolled in this case. (T. 16.) Appellant sets forth one assignment of error. I DEFENDANT'S PLEA OF GUILTY SHOULD BE NULLIFIED WHERE THE INDICTMENT CHARGING THE OFFENSE IS FATALLY FLAWED. In this single assignment of error the appellant presents three arguments. Appellant argues first that the specification on the indictment was incorrect since appellant had no prior convictions. Appellant next argues that the indictment did not specify which subsection under R.C. 2925.03 appellant allegedly violated and therefore uncertainty existed as to the sentencing consequences of the plea. Lastly, appellant asserts that the indictment excluded the word knowingly, an essential element of the crime of drug trafficking. Appellant contends that, in the - 5 - aggregate, these errors prejudiced him in conducting his plea negotiations. Appellant was convicted under R.C. 2925.03(A)(7), sentenced pursuant to R.C. 2925.03(C)(6), and fined pursuant to R.C. 1 2925.03(H)(7). 2925.03 Trafficking in drugs. (A) No person shall knowingly do any of the following: * * * * (7) Sell or offer to sell a controlled substance in an amount equal to or exceeding three times the bulk amount; * * * * (C) If the drug involved is any compound, mixture, preparation, or substance included in schedule I with the exception of marihuana or in schedule II, whoever violates this section is guilty of aggravated trafficking. * * * * (6) Where the offender has violated division (A)(7) of this section, aggravated trafficking is a felony of the first degree and the court shall impose a sentence of actual incarceration of five years and if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a sentence of actual incarceration of at least seven years. * * * * 1 R.C. 2925.03 was amended in 1990. The sections cited above are as they appeared at the time of appellant's conviction. - 6 - (H) Notwithstanding the fines otherwise required to be imposed pursuant to section 2929.11 or 2929.31 of the Revised Code for violations of this section and notwithstanding section 2929.14 of the Revised Code: * * * * (7) If the offense is aggravated trafficking and a violation of division (A)(3) or (7) of this section, the court shall impose a mandatory fine of seven thousand five hundred dollars and, if the offender has previously been convicted of a felony drug abuse offense, the court shall impose a mandatory fine of fifteen thousand dollars. Although the indictment incorrectly indicates appellant committed a prior offense, the prosecution deleted the furthermore specification at the plea hearing. This deletion was clearly accepted by the trial judge. In addition, the sentence given by the judge reflects the acceptance of the withdrawal of the specification. The judge sentenced appellant to five years actual incarceration, and fined him $7,500.00. Both R.C. 2925.03(C)(6) and (H)(7) mandate more stringent penalties where an offender has a previous felony drug abuse conviction. Since appellant was neither convicted nor sentenced on the specification, no prejudice arose to the appellant. Appellant's next two arguments both assert that the defects in the indictment are sufficient to vacate the plea. What must be contained in an indictment is delineated in Crim. R. 7(B): (B) Nature and contents. The indictment or the information shall be signed by the prosecuting - 7 - attorney or signed in his name by an assistant prosecuting attorney, and shall contain a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the applicable section of the statute as long as the words of that statute charge an offense, or in any words sufficient to give the accused notice of all the elements of the offense with which he is charged. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. Each count of the indictment or information shall state the numerical designation of the statute which the defendant is alleged therein to have violated. Error in the designation or its omission shall not be ground (sic) for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not mislead the defendant to his prejudice. See also R.C. 2941.05. A list of defects which will not render an indictment invalid is set forth in R.C. 2941.08. 2941.08 Certain defects do not render indictment invalid. (GC 13437-7) An indictment or information is not made invalid, and the trial, judgment, or other proceedings stayed, arrested, or affected: * * * * (K) For other defects or imperfections which do not tend to prejudice the - 8 - substantial rights of the defendant upon the merits. Appellant's argument that the indictment was invalid because it did not contain the subsection of the revised code is without merit. Appellant's indictment did contain the numerical designation of the statute with which he was charged, and the language in the body of the indictment mirrored R.C. 2925.03(A)(7). The omission of the subsection did not mislead appellant since the indictment advised him of the nature and cause of the accusation against him. State v. Oliver (1972), 32 Ohio St. 2d 109. No prejudice accrued to appellant from this imperfection. See also State v. Hugley (1984), 20 Ohio App. 3d 77. Appellant's final argument is that the indictment is invalid because it omitted an essential element of the crime. Ohio law is clear that where an indictment does not charge an offense it is invalid; and when an element of the charge is omitted from the indictment, no offense has been stated. State v. Cimpitz (1953), 158 O.S. 491. Appellant contends that because the word knowingly was omitted from the indictment, no offense was alleged, and the indictment was therefore invalid. We disagree. The indictment states that the appellant unlawfully and purposely offered to sell a controlled substance in an amount equal to or exceeding three times the bulk amount. R.C. 2901.22 defines culpable mental states: - 9 - 2901.22 Culpable mental states. (A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature. (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. And although there is a significant difference between purposely and knowingly, R.C. 2901.22(E) specifies: (E) . . . When knowledge suffices to establish an element of an offense, then purpose is also sufficient culpability for such element. Appellant's indictment did not omit an essential element of the charge. This court dealt with a similar issue in State v. Williams (April 27, 1987), Cuyahoga App. No. 51991, unreported. The indictment charged that the defendant acted "purposely." The defense made no pretrial motion to challenge the indictment's language. He thereby waived any objection to the indictment, unless it failed to state a crime. Crim. R. 12(B)(2); State v. Culp (1971), 32 Ohio App. 2d 39, 41. The indictment's assertion of a greater mental culpability than the statute required does not prevent it from charging a legally cognizable crime. R.C. 2901.22(E); Cf. State v. Ross (1967), 12 Ohio St. 2d 37, 40; State v. Bonner (Jan. 22, 1981), Cuyahoga App. No. 42310, Unreported. - 10 - The appellant's indictment contained sufficient information to sustain a conviction. Appellant's 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. JOSEPH J. NAHRA, P.J., and LEO M. SPELLACY, 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. .