COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61290 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION RICHARD A. MALESKY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-242781 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 JOSEPH V. HOFFER, 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, Richard Malesky, appeals his conviction in the Cuyahoga County Court of Common Pleas for drug law (R.C. 2925.11), and possession of criminal tools (R.C. 2925.24). He raises two assignments of error challenging his counsel's effectiveness and the trial court's violation of his due process rights under the Fourth and Fourteenth Amendments to the United States Constitution. Since neither of the arguments is meritorious, we affirm Malesky's conviction. II. Malesky was indicted in a three-count indictment for violation of drug laws pursuant to R.C. 2925.11 and R.C. 2925.03, and also for possession of criminal tools, pursuant to R.C. 2923.24. A plea bargain agreement was entered into by Malesky and the state whereby the state agreed to nolle the second count of the drug law indictment (R.C. 2925.03) if appellant pled guilty to the other charges. At the hearing on Malesky's plea in Case No. 242781, counsel indicated that he was of the understanding that Malesky would plead guilty to only count one. The state reiterated its willingness to nolle only count two if Malesky pled guilty to count one and three. The court inquired of Malesky's counsel if he was in agreement with the state's offer, he responded in the affirmative. The court turned to Malesky and inquired if he understood the statements made by the prosecutor, to which he also answered in the affirmative. The court asked Malesky how educated he was. He responded that he was a college graduate. He was asked by the - 3 - court if he was satisfied with his attorney's representation, and he responded yes to the question. The court then read Malesky his rights pursuant to Crim. R. 11(C). The court asked him if he understood his rights. He said he did. The court asked him if any promises were made to him and he responded in the negative. The court then asked him how he pled and he responded, "guilty." The court asked Malesky's attorney if he was satisfied that Malesky's plea was voluntary. He responded, "Yes, they are." The court then found Malesky guilty of the charges against him, and ordered a presentence investigation. Malesky was sentenced by the court to eighteen months in prison to be served concurrently with a five year sentence in case number CR 242629. This court granted Malesky a delayed appeal. Appellant's assignments of error are as follows: "I. THE TRIAL COURT COMMITTED SUBSTANTIAL PREJUDICIAL ERROR BY ACCEPTING APPELLANT'S GUILTY PLEA, BECAUSE HE DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. "A) Defense counsel was confused and improperly convinced appellant to plead guilty without requesting conditional probation. "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) The appellant's guilty plea was constitutionally invalid because it was not voluntarily and intelligently pled, due to counsel's confusion and the totality of the circumstances. - 4 - "III. THE COURT ERRED IN FAILING TO ADVISE THE APPELLANT THAT HE HAD THE RIGHT UNDER OHIO REVISED CODE SECTION 2951.04(A) & (B) TO REQUEST CONDITIONAL PROBATION AND IN FAILING TO HOLD A HEARING ON HIS ELIGIBILITY." III. Appellant in his first assignment of error, contends that his counsel's ineffectiveness violated his Fifth and Sixth Amendments rights to the United States Constitution. He argues that his lawyer's failure "to request conditional probation" pursuant to R.C. 2951.04(A) and (B) constituted ineffective assistance of counsel. The standard of review for ineffective assistance of counsel is whether trial counsel's performance fell below acceptable standard and prejudiced a defendant's case. 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. In the instant case, appellant has failed to show any evidence that his counsel was aware of his drug dependence. There is equally no independent evidence on the record to support appellant's claim. A naked allegation by a defendant of a guilty plea inducement, is insufficient to support a claim of ineffective assistance of counsel, and would not be upheld on appeal unless it is supported by affidavits or other supporting materials, substantial enough to rebut the record which shows that his plea was voluntary. State v. Kapper (1983), 5 Ohio St.3d 36, 38. It is interesting also to note that appellant would have been ineligible to qualify for treatment in - 5 - lieu of conviction because of his other conviction which was pending at the time and for which he also pleaded guilty. See R.C. 2951.02. Malesky was also asked by the court, "Are you presently under the influence of any alcohol or any narcotic representation of you attorney? Answer: Yes, your Honor." Appellant had a chance to tell the judge if he had a drug dependency, not only did he fail, but he admitted being satisfied with his attorney's representation, and we have seen nothing in the record to upset his belief. Since appellant has failed to show any duty violated by his counsel, his assignment of error is not well taken, and is overruled. IV. Appellant contends in his second assignment of error that the trial court erred by accepting his guilty plea which was not voluntarily and intelligently made. Appellant argues that since his counsel was confused, his plea of guilty was, therefore, involuntary. Appellant's argument is in reference to his counsel's remark at his plea hearing that he (appellant's counsel) did not "see the mark" on the file and thought that the plea bargain was for a plea to count one only. It was later confirmed that it was for counts one and three. The court inquired of appellant's counsel if the agreement was satisfactory and he replied, "Yes, your Honor." The court then went through appellant's right under Crim. R. 11(C). Defense counsel's - 6 - temporary forgetfulness of the full contents of the agreement was not prejudicial to appellant, especially since appellant was given the opportunity to respond to his understanding of his guilty plea. Appellant is a college graduate who showed neither a sign of confusion nor inability to understand his rights or the proceedings. This court, in State v. Shaniuk (July 30, 1992), Cuyahoga App. No. 60872, unreported, citing State v. Wardrum (Apr. 23, 1992), Cuyahoga App. No. 60521, unreported, held that: "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 (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." Having found nothing in the record to support appellant's claim of an involuntary plea of guilty, we must overrule his second assignment of error. V. Appellant argues in his third assignment of error that the trial court failed to advise him of his right to request conditional probation pursuant to R.C. 2951.04(A) and (B). R.C. 2951.04(A) reads as follows: "(A) If the court has reason to believe that an offender convicted of a felony or misdemeanor is a drug dependent person or is in danger of becoming a drug - 7 - dependent person, the court may, and when the offender has been convicted, the court shall advise the offender that he has a right to request additional probation for purposes of treatment and rehabilitation." Appellant argues that the trial court was mandated to inform him of his right under R.C. 2951.04(A). Appellant cites our decision in State v. Lampkin (1982), 3 Ohio App.3d 341, as controlling. The state argues that appellant was not eligible for conditional probation because the information came to the trial court during sentencing, and therefore, was untimely, and also because appellant did not file a motion for hearing on the issue. We disagree because the state's reasoning is a confusing misstatement of our holding in Lampkin, supra. We enunciated two rules of law in Lampkin concerning R.C. 2951.04 and R.C. 251.041. In Lampkin, we held that: "An eligibility hearing on an offender's request for treatment in lieu of conviction under R.C. 2951.04(A) is mandatory only if the request comes before the entry of a plea." What we are saying is that a defendant who is charged with a felony or a misdemeanor and requests treatment in lieu of conviction must be granted a mandatory hearing if his request is made before a plea is entered. However, where a defendant has already been convicted, "The duty of a trial judge to inform a convicted offender of his right to request conditional probation for treatment pursuant to R.C. 2951.04 is mandatory." Id. This holding is self-explanatory and does not need further explanation. Thus, - 8 - "A hearing on eligibility is mandatory whenever a timely request for treatment is made pursuant to either R.C.2951.041 or 2951.04." Id. at syllabus three. Therefore, a request for conditional probation made before sentencing is pronounced is timely for the purposes of R.C. 2951.04. We now must examine the record to determine appellant's eligibility pursuant to either R.C. 2951.041 or 2951.04. A careful review of the record shows that appellant made no request for treatment in lieu of conviction before his guilty plea was entered and there was no evidence to suggest that he was drug dependent or in danger of becoming drug dependent. Appellant, therefore, is ineligible for treatment in lieu of conviction pursuant to R.C. 2951.041. We must look at appellant's eligibility pursuant to R.C. 2951.04. Appellant, during his sentencing, implored the court to grant him leniency because he was addicted to gambling, and lost his wife and children as a result. There is no evidence of drug dependency or danger of his becoming drug dependent. Appellant's argument that the trial court should have known of his drug dependence prior to a request is without factual or legal foundation and unpersuasive. A trial court is not a proper forum for innuendos and conjectures and the statute is not intended to require a trial judge to read a defendant's mind to determine if he has a drug problem or is in danger of becoming drug dependent. Appellant's failure to request a hearing or present evidence of his drug dependency or that he is in danger of becoming drug dependent also renders him - 9 - 1/ ineligible for a conditional probation, pursuant to R.C. 2951.04. We think it necessary to state that our reading of the statute forbids us from treating a gambling addiction the same as a drug addiction as argued by appellant and any further argument to include gambling as a drug is better taken with the legislature. Accordingly, appellant's third assignment of error is also overruled. Judgment affirmed. 1/ We held in appellant's first assignment of error that the circumstances of this case renders him ineligible for either treatment in lieu of conviction or conditional probation, even so a request would not have granted him relief. - 10 - 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 JAMES D. SWEENEY, 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. .