COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66654 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JOHN SKALBA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 16, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-296204 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. RODGER A. PELAGALLI, ESQ. Cuyahoga County Prosecutor 6400 Pearl Road JOSEPH HOFFER, ESQ. Parma Heights, Ohio 44130 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - O'DONNELL, J.: On August 23, 1993, as the trial judge prepared to summon a venire panel into the courtroom the defendant, John Skalba pled no contest in case No. 298725 to a charge of domestic violence, a fourth degree felony and also pled no contest in case No. 296204 to the charge of burglary, also a felony of the fourth degree, this charge having been reduced by the prosecutor from an aggravated felony of the second degree. Both cases involved the same victim, Linda Schubert, the defendant's sister and both involved the defendant's inhalation of paint thinner. Thereafter, on November 16, 1993, the court sentenced the defendant to consecutive terms of incarceration, eighteen months on the burglary charge and twelve months on the domestic violence charge, due in part, to information contained in the psychiatric report prepared pending sentencing that throughout the duration of the defendant's addiction, the chance for violence is great, and further that the defendant's sister did not feel safe when defendant used inhalants. The court's journal entries reflect credit for time served being granted only on the eighteen-month burglary sentence. Defendant has appealed and assigned two errors for our review: I. For his first assignment of error, appellant contends that: THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE A DETERMINATION AS TO WHETHER APPELLANT KNOWINGLY, - 3 - VOLUNTARILY AND WILLINGLY ENTERED A PLEA OF GUILTY, WHERE THE APPELLANT WAS NOT AWARE THAT HE WOULD NOT BE CREDITED FOR TIME SERVED. In the brief submitted in support of this assigned error, counsel argues that, "At a minimum the court should have informed the appellant that he may or may not be credited with time served." The essence of this position is that the defendant was not properly informed of the possible consequences of his plea and therefore it was not knowingly, intelligently or voluntarily entered. We reject this analysis outright. The judicial obligations in accepting a plea of guilty or no contest are catalogued in Crim. R. 11(C)(2), which reads in relevant part: "*** the court *** 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 maximum penalty involved ***." (Emphasis added.) The court's obligation, then, is to determine whether the defendant understands the maximum possible penalty, not to entice a plea by offering or suggesting means by which the defendant's incarceration time may be reduced. Our review of the transcript in this case confirms meticulous compliance with Crim. R. 11 by an able, knowledgeable trial judge who did advise the defendant of the possible eighteen-month maximum terms of incarceration and possible fines of up to $2500 on each charge. Since the judge's only obligation was to advise the defendant of the maximum possible penalty as mandated by Crim. R. 11, we cannot impose any - 4 - higher burden on the court and we flatly reject appellant's notion that the plea was in any respect, defective. This assignment of error is overruled. II. For his second assignment of error, appellant contends that: THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR CLARIFICATION OF SENTENCING WITHOUT PROVIDING COUNSEL TO APPELLANT THUS VIOLATING APPELLANT'S RIGHT TO COUNSEL. The transcript of docket entries in this case reflects that defendant was sentenced to Lorain Correctional Institution on November 16, 1993, and on March 3, 1994, the state filed a Motion for Clarification of Sentencing. Further, appellate counsel for the defendant was appointed February 1, 1994, and this date is acknowledged in the brief submitted by counsel to our court. Also acknowledged is the fact that the state's motion was timely served on the defendant, but not forwarded by defendant to appellate counsel until April, 1994. The trial judge made the following entry on March 7, 1994: Motion for Clarification of Sentencing granted. Credit for time served to be applied to case number CR 296204 as ordered. Credit for time served not to be applied duplicatively to case number CR 298725. All time to run consecutive as ordered. The essence of defendant's argument is that the trial court failed to provide assistance of counsel to him for purposes of responding to the state's motion. - 5 - At the outset, we note that defendant correctly references his right to counsel at "critical" stages of the criminal pro- ceeding. See White v. Maryland (1963), 373 U.S. 59. We also note that a copy of the state's motion to clarify sentence was mailed to the defendant and that appellate counsel had been appointed on February 1, 1994, more than a month before the trial court ruled on the state's clarification motion. Any delay in responding cannot be attributed either to the court or the state. The court obviously satisfied itself that defendant had appointed counsel and had the opportunity to discuss relevant matters during the time the motion was pending. We also examine the nature of the matter pending before the court. The state sought a clarification of sentence, not a resentencing, nor a motion to increase sentence. As we have observed in connection with the first assignment of error, the court's obligation is to advise the defendant of the possible maximum sentences that could be imposed, nothing more. We found compliance. Thus, in clarifying, not changing, what had already been done, we find no need to conduct a hearing nor do we find any prejudice which resulted to the defendant as a result of the trial court's ruling. The defendant is in exactly the same position he was in on November 16, 1993, when he was represented by counsel and any error is therefore harmless error. This assignment of error is overruled for these reasons. The judgment of the trial court is affirmed. - 6 - 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. BLACKMON, P.J., and DYKE, J., CONCUR. TERRENCE O'DONNELL 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. .