COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 66975 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CHARLES WRIGHT : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : MARCH 23, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 291746 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones John B. Gibbons Cuyahoga County Prosecutor 2000 Standard Building By: John F. Corrigan 1370 Ontario Street Assistant Pros. Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- 2 HARPER, P.J.: Defendant-appellant, Charles Wright, was indicted in a two- count indictment for felonious assault, R.C. 2903.11, and having weapon while under disability, R.C. 2923.13. Count one carried firearm, violence and aggravated felony specifications, and count two carried firearm and violence specifications. Appellant pled not guilty to the charges in the Court of Common Pleas of Cuyahoga County on or about February 24, 1993. On March 17, 1993, appellant retracted his previous pleas of not guilty, entering a plea of guilty to an amended count one, to wit: felonious assault with a firearm with the deletion of all specifications. The trial court, pursuant to the prosecutor's request, entered a nolle prosequi as to count two of the indictment in exchange for the guilty plea. The trial court accepted appellant's plea, and subsequently sentenced him to a term of four to fifteen years. In the instant case, appellant submits that he did not knowingly, intelligently and voluntarily enter a guilty plea. He argues that the trial court failed to question him as to why he would enter a guilty plea if he were innocent as required by State v. Padgett (1990), 67 Ohio App.3d 332. Padgett is not applicable to the record, and the record otherwise demonstrates compliance with Crim.R. 11. Appellant refers to two statements made by him to demonstrate his "protestation of innocence". The trial court asked appellant, "Whose desire is it you enter this plea of guilty?" during the -3- 3 March 17th plea hearing. Appellant responded, "My lawyer, Miss Tylee. Well, it is my decision." Appellant, in his statement to the court during his April 8th sentencing hearing, expressed, "I was charged with felonious assault, but I am not really involved. I never had any gun." Crim.R. 11(C)(2) requires: "(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." A reviewing court must find that the trial court did not substantially comply with Crim.R. 11(C) 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 the rule where under the totality of the circumstances, the defendant subjectively understands the rights he is waiving and the consequences of the plea. Stewart. A defendant must also demonstrate a prejudicial effect when arguing -4- 4 that he did not knowingly, intelligently and voluntarily enter a guilty plea. Id., 93. The defendant in Padgett challenged the trial court's acceptance of his guilty plea in light of his protestations of innocence during the plea hearing. The protestations of innocence occurred when the defendant commented, "She was lying," following the trial court's announcement that he had the right to face the people who accused him of committing a crime, and echoed, "That's a lie," when the court asked him whether he understood the charges against him. Padgett, 335-336. The Padgett court recognized that a defendant who maintains his innocence may still enter a guilty plea. Id., 337, citing North Carolina v. Alford (1970), 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162. For example, evidence may be so incriminating that the defendant may rationally conclude a jury may find him or her guilty of a crime notwithstanding the defendant's innocence. Padgett, 337. The defendant, therefore, would rather plead guilty and receive a lesser sentence pursuant to a plea agreement than face harsher penalties if he or she proceeds to trial. Id. However, though an innocent defendant may choose to enter a guilty plea, the trial court must "ascertain that notwithstanding the defendant's protestations of innocence, he has made a rational calculation that it is in his best interest to accept the plea bargain offered by the prosecutor." Id., 338. Since the trial court in Padgett failed to inquire, at a minimum, why the defendant was pleading guilty to a crime which he claimed he did not commit, -5- 5 the Court of Appeals of Montgomery County concluded that the trial court did not meet its obligations under Crim.R. 11. Id., 339. In the instant case, though appellant initially answered that it was his counsel's desire to have him enter a guilty plea, appellant thereafter confirmed that it was his decision to enter the plea. This court declines to consider that this statement made by appellant during his plea hearing was a "protestation of innocence." Moreover, defense counsel informed the trial court at appellant's plea hearing that there was a thorough investigation of the charges against appellant. She also apprised the court that appellant fully discussed the evidence with her and an investi- gator. Appellant also commented during his sentencing hearing that he "was not involved" and had no gun. Padgett's application is not appropriate under these circumstances since appellant made these comments subsequent to the entering of his guilty plea. Appellant also failed to file a motion to withdraw his guilty plea, an option available under Crim.R.32.1. Additionally, appellant's description of the events which led to his arrest is included in the sentencing transcript. He explained in part as follows: "*** I'm sitting there, and I had the pistol. But I got -- I took the pistol and did like this (Indicating). I didn't mean to shoot, ***. I swear, I didn't mean to shoot, you know. ***" -6- 6 Appellant's submission that he professed his innocence is refuted by his later statement in the same hearing. Otherwise, appellant's plea agreement was presented at his plea hearing. Both appellant and his attorney stated on the record that the plea agreement was understood and properly set forth. Since the trial court thereafter complied with Crim.R. 11(C), and the record fails to disclose any evidence that appellant did not voluntarily, knowingly, and intelligently waive his constitutional rights, his assignment of error is without merit. Judgment affirmed. -7- 7 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. DONALD C. NUGENT, J. JAMES M. PORTER, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 journaliza-tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .