COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67053 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD SANTIAGO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 4, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-255438 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: STEVE W. CANFIL (#0001297) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN (#0002847) 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Richard Santiago ("appellant") was indicted for one count of aggravated murder (R.C. 2903.11) with four specifications. The first specification was for committing the offense during an aggravated burglary (R.C. 2929.04(A)(7)). Two specifications were for killing the victim during an attempt to kill others (R.C. 2929.04(A)(5)). The last was a firearm specification (R.C. 2929.71(A)(2)). Appellant also was indicted for one count of aggravated burglary (R.C. 2911.11), five counts of felonious assault (R.C. 2903.11) and one count of attempted murder (R.C. 2923.02, R.C. 2903.02). On January 8, 1991, the day trial was to commence, appellant appeared before a three-judge panel. The state then placed on the record the plea agreement and a recitation of the facts. Defense counsel stated appellant was advised of each of his constitutional rights in conjunction with Crim.R. 11(C) and that appellant understood those rights. Appellant was advised by the trial court of his rights pursuant to Crim.R. 11 and indicated he understood those rights. The trial court stated the charges to which appellant would plead guilty. Appellant said he understood the charges. Appellant was informed of the possible penalties which could be imposed by the trial court. Appellant then pled guilty to the charge of aggravated murder including the first three specifications. The gun specification - 3 - 3 was deleted. The remaining counts were nolled. Appellant received a life sentence with parole eligibility after thirty years. Appellant assigns the following error upon appeal: I. THE TRIAL COURT ABUSED ITS DISCRETION BY ACCEPTING THE APPELLANT'S GUILTY PLEA. Finding the assignment of error to lack merit, the judgment of the trial court is affirmed. In his assignment of error, appellant contends the trial court abused its discretion by accepting his guilty plea because the trial court did not define the specifications properly. Appellant argues the trial court failed to define aggravated burglary thereby preventing him from determining if he had committed the felony- murder specification. Appellant also asserts the second and third specifications should have been merged for purposes of the plea as both pertain to R.C. 2929.04(A)(5). Appellant maintains the statute allows for attempts to kill two or more persons yet each specification alleges appellant killed the victim during a course of conduct including attempts to kill the individual named in the separate specifica- tions. Appellant argues R.C. 2929.04(A)(5) provides for attempts to kill more than one individual and the specifications should not have been separate. He contends he should have been advised of the merging requirement at the time of his plea. Appellant states the trial court failed to follow the dictates of Crim.R. 11(C)(3) as he pled guilty to the first count but not - 4 - 4 separately to the charge and each specification. Appellant argues that, because of this failure, his plea was not valid. Crim.R. 11(C) provides in pertinent part: (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. (3) With respect to aggravated murder com- mitted on and after January 1, 1974, the de- fendant shall plead separately to the charge and to each specification, if any. A plea of guilty or no contest to the charge waives the defendant's right to a jury trial, and before accepting such plea the court shall so advise the defendant and determine that he under- stands the consequences of such plea. Crim.R. 11(C)'s underlying purpose is to convey certain information to the defendant to allow him to make a voluntary and intelligent decision of whether or not to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479-480. Therefore, scrupulous adherence to Crim.R. 11(C) is not required, rather the trial court must substantially comply provided no prejudicial effect occurs - 5 - 5 before a guilty plea may be accepted. The test is whether the plea would otherwise have been made. State v. Stewart (1977), 51 Ohio St.2d 86. "Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implication of his plea and the rights he is waiving." State v. Nero (1990), 56 Ohio St.3d 106, 108. If the defendant receives the proper information, it then can be assumed he understood that information. State v. Carter (1979), 60 Ohio St.2d 34. The trial court explained the charges to which appellant was to plead guilty as follows: JUDGE CORRIGAN: Okay. Do you understand that the offense to which you propose to plead guilty in this case is set forth under count one, under your indictment as amended, in that you did in Cuyahoga County, Ohio, on July 13, 1990, in violation of Revised Code 2903.01, you did unlawfully and purposely, and with prior calculation and design, cause the death of another, to-wit, Andrew McWilliams; and that when you did that under specification one of your indictment, it's presented by the Grand Jury that the offense of aggravated murder as charged in the indictment was committed while you, the offender, committed aggravated burglary, and either you were the principal offender in the commission of the aggravated murder, or if not the prin- cipal offender, you committed the aggravated murder with prior calculation and design; do you understand that specification? MR. SANTIAGO: Yes, your Honor. JUDGE CORRIGAN: You understand that also you are accused under specification two that the offense presented was part of a course of conduct in which the offender, yourself, purposely killed Andrew McWilliams, and also purposely attempted to kill James Dalton. Do you understand that specification? - 6 - 6 MR. SANTIAGO: Yes, your Honor. JUDGE CORRIGAN: Under specification three, it's further alleged that the offense was part of the course of conduct in which you, the offender, purposely killed Andrew McWilliams, and also purposely attempted to kill Michael Norgulius. Do you understand that? MR. SANTIAGO: Yes, your Honor. (Tr. pp 50-51). Appellant indicated he understood the charges as they were read to him. His attorney told the court appellant understood his rights and that the plea agreement was explained to him numerous times. The trial court did not abuse its discretion by accepting the plea without explaining every element of the underlying offense of aggravated burglary. Appellant argued the second and third specifications should have been merged. Appellant does not state his plea would have been different or that the plea agreement or sentence would have changed if the two had been merged. There was no prejudice to the appellant. Appellant states his plea of guilty was invalid because he did not plead separately to each specification. After explaining the charges and possible penalties, the trial court asked how appellant pled to the offense. Appellant replied guilty. Later, the court stated: JUDGE CORRIGAN: Okay. The Court then will accept the plea of guilt in this case to the offense of aggravated murder of Andrew McWilliams on July 13th, 1990. Under the first count in the indictment as amended, deleting - 7 - 7 specification four, the Court accepts the plea of guilt, specifically to specification one, under count one of the indictment. The Court accepts the plea of guilt, specifically to specification two and to specification three. The Court deems the plea of guilt entered to apply to the base offense of aggravated murder, as alleged under the amended first count as well as the three separate distinct specifications, one, two and three. I would like to confer with my judges just for a moment, to make certain they concur with the Court's acceptance. JUDGE GALLAGHER: I concur. JUDGE CORRIGAN: Judge Zingale. JUDGE ZINGALE: I concur. JUDGE CORRIGAN: All right. The Court therefor accepts the plea as tendered. (Tr. pp. 55-56). In State v. Burrage (October 7, 1993), Cuyahoga App. No. 63824, unreported, this court held the standard in accepting a guilty plea under Crim.R. 11(C)(3) is that of substan- tial compliance. In the instant case, the trial court substantial- ly complied with the requirements of Crim.R. 11(C)(3). Appellant's assignment of error is overruled. Judgment affirmed. - 8 - 8 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., and ANN DYKE, J., CONCUR LEO M. SPELLACY PRESIDING 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 .