COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66497 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION OTTO M. SMITH : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-295395 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DALE M. HARTMAN 950 Leader Building East 6th Street & Superior Avenue Cleveland, Ohio 44114 - 2 - HARPER, J.: Defendant-appellant Otto M. Smith, Jr. ("Smith") timely appeals from an October 27, 1993 judgment of the Cuyahoga County Common Pleas Court. Pursuant to the October 27, 1993 judgment, the trial court accepted Smith's plea of guilty to the charge of attempted drug law in violation of R.C. 2923.02 and R.C. 2925.03 and sentenced Smith to time served in jail, i.e., seven months, thus, ordering his immediate release. In the appeal at bar, Smith claims his guilty plea was not knowingly, intelligently and voluntarily made and alleges his right to a speedy trial was violated. The record demonstrates that Smith was arrested on March 27, 1993 by police officers of the Euclid, Ohio Police Department for alleged possession of marijuana, brass knuckles, money and EZ wrap papers. Smith claims, and the State does not dispute, that Smith was incarcerated at the Euclid City Jail where he remained until March 30, 1993, i.e., for three days, after which he was released by the Euclid Police Department. Thereafter, on April 15, 1993, Smith, a parolee, was again placed under arrest apparently at the request of the Adult Parole 1 Authority and placed into the Cuyahoga County Jail. On April 20, 1993, the Adult Parole Authority notified Smith that it would hold an on-site hearing at the county jail on April 27, 1993. In 1 In its September 24, 1993 Demand for Discovery, the State noted that Smith, at the time of his arrest by Euclid police had only recently been released from prison, apparently Grafton Correctional Institution, after serving sixteen years incarceration for homicide. - 3 - this notification, the Adult Parole Authority alleged Smith violated his parole by committing the following offenses: (1) Possession of illegal drugs on March 27, 1993 in the city of Euclid; (2) Providing false information to Euclid police on March 27, 1993 with respect to the location of Smith's residence; (3) Possession of stolen property on April 15, 1993 in the vicinity of the State Office Building in Cleveland, Ohio; and (4) Failure to report to parole officer on April 8, 1993 as scheduled. Smith claims, and the State does not dispute, that the Adult Parole Authority conducted the on-site hearing on April 27, 1993 and subsequently sent Smith back to Grafton Correctional Institution. On May 17, 1993, Smith filed a petition for writ of habeas corpus in the Cuyahoga County Common Pleas Court along with an affidavit of indigency. One day later, on May 18, 1993, Smith was indicted on the following counts: (1) drug law, in violation of R.C. 2925.03 with one violence specification; and (2) possession of criminal tools, in violation of R.C. 2923.24. On May 25, 1993, Smith filed a motion for appointment of counsel in the habeas corpus proceeding. On May 28, 1993, however, the trial court denied his petition for writ of habeas corpus and the motion for appointment of counsel. On June 2, 1993, the trial court ordered Smith transferred from Grafton Correctional Institution back to the Cuyahoga County Jail. Smith - 4 - was thereafter arraigned on June 23, 1993. At his arraignment, Smith pleaded not guilty to both the foregoing counts and the trial court appointed him counsel. A pre-trial hearing was had on July 6, 1993 and, at Smith's request for a continuance, the next pre-trial hearing was set for July 22, 1993. The pre-trial hearing was had on July 22, 1993 and the next pre-trial hearing was set for August 10, 1993. On August 10, 1993, a pre-trial hearing was had but, at Smith's request for a continuance, the pre-trial hearing was re-scheduled for August 24, 1993. The August 24, 1993 pre-trial hearing was had and, at Smith's request for a continuance, reset for August 31, 1993. On August 31, 1993, the pre-trial hearing was had and, at Smith's request, trial was set for October 25, 1993. Thereafter, on October 4, 1993, Smith filed a pro se motion for dismissal due to violation of his right to a speedy trial. On October 25, 1993, however, Smith appeared at trial with counsel where he retracted his former pleas of not guilty and entered a guilty plea to one count of attempted drug law in violation of R.C. 2923.02 and R.C. 2925.03 (less than bulk amount) which was a misdemeanor of the first degree. Count two, possession of criminal tools, was nolled. As noted supra, the trial court accepted Smith's guilty plea and sentenced him to time already served in jail, thus, ordering his immediate release. The trial court did not deny or grant Smith's motion for dismissal predicated upon a violation of his right to a speedy trial. - 5 - On November 16, 1993, Smith filed a timely appeal to this appellate court. One day later, on November 17, 1993, Smith, acting pro se, filed "Interlocutory Motion Nunc Pro Tunc Filing to Withdraw Guilty Plea for Purpose of Appeal." In his motion, Smith stated his guilty plea was not voluntarily made "with an understanding of the nature of the charge and of the maximum penalty involved." Smith also moved the court for permission to proceed pro se. On November 26, 1993, the trial court denied Smith's motions to proceed pro se and to withdraw his guilty plea stating as a reason that Smith had already been sentenced. As an aside, Smith apparently remained in Cuyahoga County Jail pending disposition of the other charges brought by the Adult Parole Authority. According to Smith's March 17, 1994 "Motion for Jail Credit," Smith was incarcerated from April 15, 1993 until December 8, 1993 by virtue of the pending charges brought by the Adult Parole Authority. In his December 15, 1993 filing with the Common Pleas Court to notify of his change of address, Smith stated that on December 8, 1993, he was transferred from the Cuyahoga County Jail to the Lorain Correctional Institution. Smith raises three assignments of error in the appeal at bar which shall be considered in logical order. Appellant's second assignment of error follows: II. THIS COURT OF APPEALS WOULD VIOLATE DEFENDANT'S DUE PROCESS RIGHTS IF IT WERE TO DISMISS THIS CASE AS MOOT SIMPLY BECAUSE DEFENDANT HAS SERVED HIS SENTENCE. - 6 - This assignment has merit. In his second assignment of error, Smith, apparently anticipates the State's argument that since Smith has served the sentence imposed in the within case, the appeal at bar is moot. Smith argues two propositions against a finding of mootness which follow: (1) Smith suffered express and articulable collateral legal consequences as a result of the within conviction which consequences he described as social disgrace, legal discredit, loss of economic and social opportunity, revocation of parole and extended incarceration due to parole revocation; and (2) Placing the burden of establishing such articulable collateral legal consequences upon Smith violates his due process rights. In State v. Wilson (1975), 41 Ohio St.2d 236, syllabus, the Ohio Supreme Court stated as follows: Where a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction. 2 See State v. Berndt (1987), 29 Ohio St.3d 3. In the case at bar, Smith presented evidence that he suffered a collateral disability from the conviction for attempted drug law, viz., the conviction contributed to the revocation of his parole and his re-incarceration. Since any 2 The Ohio Supreme court in State v. Golston (December 20, 1994), Ohio Sup. Ct. No. 93-1632, recently upheld Wilson, supra and Berndt, supra but with respect to only misdemeanor convictions. - 7 - subsequent determination of Smith's parole eligibility might conceivably be influenced by the within conviction for attempted drug law, an inference may be drawn that Smith will also suffer additional collateral disability from the within conviction, viz., Smith will be incarcerated for a longer period of time due to the conviction for attempted drug law. In accordance with Wilson, supra, Berndt, supra and Golston, supra, the appeal at bar is not moot. Appellant's second assignment of error has merit and is sustained. Appellant's third assignment of error follows: III. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE CASE FOR FAILURE TO BRING DEFENDANT TO TRIAL WITHIN THE STATUTORY SPEEDY TRIAL TIME. This assignment lacks merit. Smith claims in his third assignment of error that the trial court should have dismissed the within case since Smith was not brought to trial within the period of time prescribed by statute. Smith argues that he was held in jail in excess of two hundred seventy days upon application of the "triple-count provision" of R.C. 2945.71(E). R.C. 2945.71 states in relevant part as follows: (C) A person against whom a charge of felony is pending:... (2) Shall be brought to trial within two hundred seventy days after his arrest... (E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. - 8 - The language of R.C. 2945.71(E), i.e., the "triple-count provision," is applicable only to defendants held in jail in lieu of bail solely on the pending charge. State v. Martin (1978), 56 Ohio St.2d 207; State v. Jones (1992), 81 Ohio App.3d 348; State v. Phillips (1990), 69 Ohio App.3d 379. Consequently, the "triple-count provision" does not apply to a defendant who is held in jail in lieu of bail and faces, in addition to a pending charge, a charge of parole violation. Jones, supra. In the case at bar, Smith stated and it was undisputed that he was held in jail beginning on April 15, 1993 and was facing two sets of charges, viz., the felony charges of the instant case (the pending charge) which were plea bargained into a misdemeanor charge and, in addition, a charge of parole violation. In accordance with Martin, supra, Jones, supra, and Phillips, supra, the "triple-count" provision of R.C. 2945.71(E) was not applicable to the time Smith was held in jail in the instant case since Smith was not held in jail solely on the pending charge. Smith was held in jail pending disposition of the instant case less than two hundred seventy days, i.e., from March 27, 1993 through October 25, 1993, even if this court ignores the time he was released from March 30, 1993 until April 15, 1993 along with the numerous continuances he requested. Smith's right to a speedy trial was not, therefore, violated and the trial court did not err when it refused to grant his motion to dismiss for violation of the right to speedy trial. Appellant's third assignment of error lacks merit and is overruled. - 9 - Appellant's first assignment of error follows: I. THE PROCEEDINGS BELOW WERE DEFECTIVE IN THAT NO INQUIRY WAS MADE REGARDING WHETHER DEFENDANT UNDERSTOOD THE NATURE OF THE CRIME AND CONSEQUENTLY THE COURT ERRED IN ACCEPTING A PLEA WHICH WAS NEITHER KNOWINGLY, WILLINGLY NOR INTELLIGENTLY MADE IN VIOLATION OF CRIM. R. 11 AND DEFENDANT'S CONSTITUTIONAL RIGHTS. This assignment lacks merit. In his first assignment of error, Smith claims his guilty plea was defective since the trial judge failed to comply with Crim.R. 11(C). Crim.R. 11(C) states in relevant part as follows: (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. In State v. Billups (1979), 57 Ohio St.2d 31, 38, the Ohio Supreme Court stated as follows: - 10 - [W]hen a trial court fails to adhere in every respect to the dictates of Crim. R. 11, but the record reveals that the court has "substantially complied" with the requirements of the Rule, absent a showing of prejudice to the rights of the defendant, the entered plea will not be set aside. See State v. Nero (1990), 56 Ohio St.3d 106. In the case at bar, Smith claims the trial court failed to substantially comply with Crim.R. 11(C). In support of this claim, Smith offers three distinct contentions which shall be considered seriatim. In order to analyze whether a trial court has substantially complied with Crim.R. 11(C), this appellate court must examine the totality of the circumstances and determine whether or not the accused understood the implications of his plea and the rights he waived. In addition, the appellant must demonstrate the plea caused a prejudicial effect, i.e., the plea would not otherwise have been made. Nero, supra. Smith first contends the trial judge failed to determine whether or not Smith entered his guilty plea with understanding of the nature of the misdemeanor charge to which he pleaded guilty, viz., attempted drug law. This contention is resolved by the following relevant colloquy which occurred at the plea hearing on October 25, 1993: MR. MORONEY (defense counsel): Y o u r Honor, Mr. Feran's statement on the record is an accurate statement of the discussions and negotiations that have gone on heretofore. I've advised my client of his constitutional rights. I believe he understands them. He's going to make an intelligent waiver of them. At this time, he's going to withdraw his previously- - 11 - entered plea of not guilty and I anticipate him entering a plea of guilty to the lesser but included offense in Count 1 of attempted drug abuse, a misdemeanor of the first degree. I've made no underlying threats, promises or agreements to my client in order to induce or coerce him to change his plea at this time. THE COURT : All right. Well, it's attempted trafficking in marijuana, just to make that clear. But anyway, it' still a misdemeanor. He gets to go home today, whatever you indicate. MR. MORONEY: Sure. THE COURT: Mr. Smith, I must ask you a series of questions required under Ohio law before I can accept your plea. Can you give me answers out loud for the record yes or no, sir? THE DEFENDANT: Yes, sir. THE COURT: All right. Mrs. Smith, as you stand before me this afternoon, are you under the influence of alcohol or drugs this afternoon? THE DEFENDANT: No, sir. THE COURT: All right. Did you just hear the statements made by your fine attorney and by the prosecuting attorney? THE DEFENDANT: Yes, sir. THE COURT: Did you understand those statements? THE DEFENDANT: Yes, sir. THE COURT: Do you realize what you're doing this afternoon? THE DEFENDANT: Yes, sir. THE COURT: All right. Have you thought this case over and after discussing this case with your attorney do you feel that entering this plea, that that's in your best interests as opposed to taking this case to trial? THE DEFENDANT: Yes, sir. - 12 - * * * * THE COURT: All right, Mr. Smith. How do you plead to this amended first count, the charge that you, Otto M. Smith, Jr., on March 27, 1993, in the State of Ohio, in the County of Cuyahoga, you unlawfully did knowingly attempt to possess a controlled substance, to-wit: marijuana, a schedule one drug, being an amount equal to or exceeding the bulk amount but in an amount less than three times the bulk amount? This is a charge of attempted trafficking in marijuana, in violation of Revised Code Sections 2923.02 and 2925.03, subsections (A)(4) and (E)(4). Now, this count as amended, attempted trafficking in marijuana, is a misdemeanor of the first degree for which the Court could give you up to six months in jail, could give you up to a $1,000 fine. Knowing the possible consequences of your plea, how do you plead to the first count in the indictment in CR 295395, attempted trafficking in marijuana, a misdemeanor of the first degree? THE DEFENDANT: Guilty. (Emphasis added). An analysis of the foregoing colloquy demonstrates that the trial judge determined Smith understood he was pleading guilty to 3 attempted possession and trafficking of marijuana which was a misdemeanor of the first degree and, in addition, explained to Smith the elements of the crime of possession and trafficking in marijuana and the maximum possible penalties. Based upon the totality of the circumstances, therefore, the trial court substantially complied with the mandate of Crim.R. 11(C)(2), supra to determine that Smith was making his plea voluntarily, 3 R.C. 2925.03 states in relevant part as follows: "Trafficking in drugs. (A) No person shall knowingly do any of the following:... (4) Possess a controlled substance in an amount equal to or exceeding the bulk amount, but in an amount less than three times that amount;...." - 13 - with understanding of the nature of the charge and of the maximum penalty involved. Billups, supra; Nero, supra. Smith next contends the trial court failed to determine whether or not Smith understood the effect of his guilty plea. He specifically argues the trial judge failed to inform Smith that his guilty plea might result in a parole revocation. The following relevant colloquy occurred at the plea hearing: THE COURT: Are you currently on probation or parole? THE DEFENDANT: No. THE COURT: All right. Do you realize as a result of pleading guilty to a misdemeanor here the Parole Board might hold a parole revocation hearing about this? THE DEFENDANT: Yes. THE COURT: Do you understand that? THE DEFENDANT: Yes, sir. THE COURT: All right. And I got no control over what they do. THE DEFENDANT: Yes, sir. (Emphasis added). An analysis of the foregoing colloquy demonstrates the trial judge explained to Smith that the Adult Parole Authority might convene a parole revocation hearing as a result of Smith's guilty plea to the charge of attempted drug law. Since the revocation of parole is one possible result of such a parole revocation hearing, it is obvious that Smith was informed his parole might be revoked as a result of his guilty plea. It is further noted that the trial judge explained this situation despite the fact that Smith denied he was on parole when he actually was on - 14 - parole. Based upon the totality of the circumstances, therefore, the trial judge substantially complied with the mandates of Crim.R. 11(C)(2), supra requiring the court to determine that Smith was making his plea with understanding of the maximum penalty involved and to inform Smith of and determine his understanding of the effect of his plea of guilty. Billups, supra; Nero, supra. Smith finally contends the trial court failed to explain that pleading guilty to the charge of attempted drug law would operate as a waiver of his pending motion to dismiss the within case for violation of Smith's right to a speedy trial. It is noted, however, that Crim.R. 11(C)(2), supra does not require the trial court to inform Smith that his guilty plea might or would operate as a waiver of his motion for dismissal for violation of the right to a speedy trial. Regardless, the trial judge clearly informed Smith a number of times during the plea hearing that following the trial court's acceptance of Smith's guilty plea, Smith would be sentenced and released as did in fact occur. Smith, therefore, was informed that once he pleaded guilty to attempted drug law, his conviction would terminate the criminal proceedings with respect to that cause of action. It follows that Smith was or should have been aware that the case at bar would not be dismissed for violation of his right to a speedy trial once Smith was, in fact, convicted of attempted drug law and the criminal proceedings were at an end. - 15 - It is also significant that in the review of Smith's third assignment of error, supra, it was determined that Smith's motion for dismissal due to violation of his right to a speedy trial was without merit and the trial court, therefore, properly refused to grant the motion for dismissal. In light of this, had the trial court erred by failing to specifically inform Smith that his guilty plea would cause his motion for dismissal to be waived, such error would have been harmless beyond a reasonable doubt. Based upon the totality of the circumstances, the trial court thus substantially complied with all the mandates of Crim.R. 11(C)(2), supra. Billups, supra; Nero, supra. Appellant's first assignment of error lacks merit and is overruled. Judgment affirmed. - 16 - 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. PATTON, C.J., and PRYATEL, J., CONCUR JUDGE SARA J. HARPER (SITTING BY ASSIGNMENT: Judge August Pryatel, retired from the Eighth District Court of Appeals). N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .