COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61142 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : BRYANT HARRIS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-236027. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David Doughten, Esq. 4403 St. Clair Avenue Cleveland, OH 44103 -2- DAVID T. MATIA, C.J.: Defendant-appellant Bryant Harris pled guilty to aggravated murder in the Court of Common Pleas for Cuyahoga County. Appellant assigns for error the court's acceptance of that guilty plea. Based on the reasons stated below, we find appellant's argument without merit and therefore affirm the trial court. STATEMENT OF THE FACTS AND THE CASE On February 7, 1989, a Cuyahoga County Grand Jury capitally indicted defendant-appellant Bryant Harris for two counts of aggravated murder in violation of R.C. 2903.01. Each count of aggravated murder contained a felony murder specification and a firearm specification. The indictment also included one count of aggravated robbery in violation of R.C. 2911.01 also with a firearm specification. On February 23, 1989 appellant was arraigned and the case assigned to the Honorable Norman Fuerst. On June 5, 1989, appellant entered a plea of guilty to aggravated murder with a firearm specification. The state offered to dismiss counts one and three and to dismiss the felony murder specification contained in count two. When the court asked for the plea, however, appellant decided not to accept the plea bargain. Subsequently, however, on October 2, 1989, appellant entered a plea of guilty to amended count two, aggravated murder without specifications. Counts one and three were dismissed. Thereafter, appellant was sentenced to a term of life imprisonment to be served concurrently to his sentence in another case CR-229189. It is from this guilty plea and sentence appellant makes this delayed appeal. -3- THE SOLE ASSIGNMENT OF ERROR THE TRIAL COURT ERRED WHEN IT ACCEPTED THE APPELLANT'S PLEA OF GUILTY TO AGGRAVATED MURDER BEFORE IT INFORMED THE APPELLANT THAT THIS CRIME WAS NON-PROBATIONABLE. Appellant argues in his sole assignment of error that the trial court erred when it accepted his guilty plea. Specifically, appellant contends that the court did not properly inform him that his crime was non-probationable. This assignment of error is not well taken. ISSUE RAISED: WHETHER THE TRIAL COURT PROPERLY INFORMED APPELLANT THAT HIS CRIME WAS NON-PROBATIONABLE Appellant contends that he made an uninformed guilty plea because the court did not make him aware that his offense was non-probationable. We disagree. Appellant relies on Crim. R. 11 which provides that the court must determine that a defendant's guilty plea is voluntarily made, with an understanding of the nature of the charge and, "if applicable, that he is not eligible for probation." Appellant further relies on State v. Nero (1989), Cuyahoga App. No. 55636, unreported, to show that failure to so advise a defendant constitutes prejudicial error. The record, however, in the case sub judice belies appellant's reliance. A review of the record indicates that appellant himself asked the court, "Could you tell me, by any chance, when I will be eligible for parole?" The court responded, "If your conduct is good, then you will get it all reduced down to where you are subject to parole, I believe, in 15 years." The court also asked -4- counsel if he had informed appellant as to parole. To which question, counsel answered, "I think we told him 15 years, 2 months." Hence, appellant's reliance on the court's holding in Nero that the court "shall not accept a plea of guilty ***" in a felony case "without first addressing the defendant personally and determining that he is making the plea voluntarily, with understanding *** if applicable, that he is not eligible for probation", is totally misplaced. Herein, the court discussed explicitly with appellant that he was not eligible for parole for at least 15 years. We acknowledge that parole and probation are not the same. The court has no discretion in regards to parole. The effect, however, in the within case, is the same. Appellant could not expect release from confinement until part of his sentence was served. Thus appellant knew or should have known that his offense was non-probationable. Thus, appellant's sole assignment of error is without merit. Accordingly, the trial court is affirmed. -5- 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. JAMES D. SWEENEY, J., CONCURS; HARPER, J., CONCURS IN JUDGMENT ONLY. DAVID T. MATIA CHIEF JUSTICE 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. .