COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67054 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RICHARD SANTIAGO, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 16, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-251130 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: George J. Sadd Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John P. Parker 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- NAHRA, J.: In this delayed appeal, defendant-appellant Richard Santiago appeals from his conviction for violation of R.C. 2903.11, Felonious assault, with two violence specifications. Appellant was indicted on the charge on June 7, 1990. He initially entered a plea of not guilty and retained counsel to represent him. The record reflects that thereafter several pretrials were held. Appellant was eventually referred to the psychiatric clinic for evaluation as to his competency to stand trial and his sanity. Following a hearing on the matters, 1 appellant was found competent. More pretrials followed. Ultimately, his case was set for trial. On the scheduled date of trial, the trial court was notified that appellant desired to change his not guilty plea to one of "no contest." The trial court thereupon held a hearing. The trial court proceeded to address appellant pursuant to Crim.R. 11 in order to ascertain the knowingness, voluntariness, and intelligence of appellant's decision. Appellant responded appropriately during this exchange, asking for further explanation when he was unsure of the trial court's recitation of his rights. Thereafter, appellant stated he understood his rights, the consequences of his plea, and the nature of the charge and the maximum penalty involved should he be found guilty by the trial court. 1 There was no journal entry regarding the trial court's ruling on appellant's sanity evaluation. -3- Following all this, appellant responded "No contest" when asked by the trial court what his plea was "to the indictment of felonious assault." The trial court then asked defense counsel if he was satisfied his client "understands the nature of the charge to which he is pleading, and his constitutional rights that he is waiving." Counsel stated, "I am, your Honor." At that point, the record reflects the following occurred: THE COURT: Let the record reflect that the court accepts the plea of no contest. Ms. Papcke, I need a factual basis. MS. PAPCKE [the prosecutor]: Your Honor, in this case, if it went to trial, the state would prove that on or about February 23, 1990, in Cleveland, Ohio; Cuyahoga County; State of Ohio, that the defendant, in question with several others, his friends, went to a store at West 67th and Denison, to-wit Dave's Discount Store. And upon entering those premises, he met up with the victim also, with a few friends. A struggle ensued during which the victim was stabbed approximately nine times at various parts of his body, by this particular defendant. That the victim was then transferred to Cleveland Metro General Hospital where he was kept, and surgery was performed due to the injuries that were inflicted by this particular defendant. He was later released from the hospital. THE COURT: Now, based upon the facts as stated by the assistant County Prosecutor, I do find you to be guilty of felonious assault. * * * Following a presentence investigation and report, the trial court sentenced appellant to a term of incarceration of six to fifteen years. This court has granted appellant's motion for a delayed appeal. Appellant presents two assignments of error for this court's review. -4- I. Appellant's first assignment of error states: THE TRIAL COURT ERRED IN ACCEPTING THE APPELLANT'S PLEA OF NO CONTEST WHEN THE FACTS AS RECITED BY THE PROSECUTOR DID NOT CONSTITUTE THE OFFENSE CHARGED IN THE INDICTMENT. Appellant argues his conviction for felonious assault was improper. He contends the facts as recited by the prosecutor failed to support the element in R C. 2903.11 that he "knowingly" 2 committed the act. Appellant cites State v. Thorpe (1983), 9 Ohio App.3d 1, as authority for his position that under the circumstances, the trial court should have refused to accept his plea. This court does not agree. Initially, it must be noted that in noncapital felony cases, there is no specific procedural or substantive requirement that the trial court must obtain "a recitation of facts from anyone before entering a guilty finding." State v. Thorpe, supra, at 3 (Markus, J., and Parrino, J., concurring). See, also State v. Post (1987), 32 Ohio St.3d 380 at 386-387; Crim.R. 11(C)(4). Cf., R.C. 2937.07; Cuyahoga Falls v. Browers (1984), 9 Ohio St.3d 148. Secondly, pursuant to Crim.R. 11(B)(2), appellant's plea of no contest, given after being fully advised of his rights and the consequences of such a plea, constituted an admission of the facts alleged in the indictment, viz., that he "did knowingly cause serious physical harm to [the victim] and/or did knowingly cause or 2 Appellant asserts that the facts constituted, at most, the offense of Aggravated assault and may even have indicated appellant had a "complete defense" to the charge. -5- attempt to cause physical harm to [the victim] by means of a deadly weapon or dangerous ordnance to-wit: knife * * * ." See, e.g., State v. Redman (1992), 81 Ohio App.3d 821; State v. Thorpe, supra. Finally, a review of the prosecutor's statement reveals it was sufficient to support the elements of R.C. 2903.11. State v. Bailey (June 11, 1992), Cuyahoga App. No. 60735, unreported; State v. Winston (1991), 71 Ohio App.3d 154. For the foregoing reasons, the trial court did not err in accepting appellant's plea of no contest to the charge of felonious assault with specifications. State v. Thorpe, supra. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO OBJECT TO THE COURT'S ACCEPTANCE OF THE NO CONTEST PLEA WHEN THE RECITATION OF FACTS SUPPORTED A DEFENSE OF ACCIDENT OR THE LESSER INCLUDED OFFENSE OF AGGRAVATED ASSAULT. Appellant argues his trial counsel's failure after the prosecutor's statement to either object to the plea or alert the trial court that the plea was "improper" constituted a violation of his constitutional right to effective assistance of counsel. The claim of ineffective assistance of counsel requires proof that "counsel's performance has fallen below an objective standard of reasonable representation" and, in addition, prejudice arises from counsel's performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus; see, also, Strickland v. Washington (1984), 466 U.S. 668; State v. Lytle (1976), 48 Ohio -6- St.2d 391. The establishment of prejudice requires proof "that there exists a reasonable probability that were it not for counsel's errors, the result of the trial would have been different." State v. Bradley, supra, paragraph three of the syllabus. The burden is on appellant to prove ineffectiveness of counsel; trial counsel is strongly presumed to have rendered adequate assistance. State v. Smith (1985), 17 Ohio St.3d 98. In view of this court's discussion of appellant's first assignment of error, it is clear any objection made by trial counsel concerning either the adequacy of the prosecutor's statement or the trial court's subsequent acceptance of appellant's plea would have been inappropriate. Under these circumstances, the record fails to demonstrate trial counsel's action fell below an objective standard of reasonableness. Thus, appellant cannot support his burden to prove ineffective assistance of counsel. See, e.g., State v. McKinney (1992), 80 Ohio App.3d 470; State v. Payton (Apr. 1, 1993), Cuyahoga App. No. 62243, unreported. Accordingly, appellant's second assignment of error is also overruled. Appellant's conviction is affirmed. -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. DYKE, P.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA 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. .