COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67056 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOSEPH FRANKS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 22, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-296297 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLAANT: STEPHANIE TUBBS JONES, ESQ. LAWRENCE J. BUSCH, ESQ. Cuyahoga County Prosecutor 337 The Arcade BLAISE D. THOMAS, ESQ. Cleveland, Ohio 44114 Assistant County Prosecutor 8th Floor Justice Center JOSEPH FRANKS, Pro Se 1200 Ontario Street Serial No. 282-773 Cleveland, Ohio 44113 Ross Correctional Institute P. O. Box 7010 Chillicothe, Ohio 45601 -2- -3- PATRICIA ANN BLACKMON, J.: Joseph Franks, defendant-appellant, appeals his conviction upon a plea of guilty to possession of cocaine in an amount exceeding three times the bulk amount. Franks assigns the following two errors for our review: I. THE COURT ERRED IN ACCEPTING A PLEA WHICH WAS NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY MADE. II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. In a supplemental brief, he assigns two errors pro se: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY SENTENCING HIM ON A SECOND DEGREE FELONY FOR VIOLATING A THIRD DEGREE FELONY. II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. Joseph Franks was initially charged with possession of cocaine three times the bulk amount, sale of cocaine with a schoolyard specification, possession of criminal tools, and failure to comply with the order or signal of a police officer. After plea bargain- ing, Franks agreed to plead guilty to possession of cocaine three times the bulk amount in exchange for the prosecution's dismissal of the remaining counts. In presenting the plea agreement, the prosecution made the following statements to the court: Count one as charged, your Honor, is a felony of the second degree. A felony of the second -4- degree is punishable by an indefinite term of incarceration of two years, three years, four years or five years to a maximum of 15 years. However, under the drug law, the drug law stipulates that this level of offense for this level of possession of cocaine requires that the Court impose a minimum term of incarcer- ation. So that a plea of guilty to this offense is a plea of guilty to a non- probationable offense. The defendant will not be eligible for probation, shock probation or so-called super shock probation. Thereafter, the trial court addressed Franks as follows: COURT: Mr. Franks, do you understand what this agreement is as to this particular offense? FRANKS: Yes, sir. *** COURT: If you plead guilty to that charge you will be admitting that you did that; you will be giving up your right to raise any defenses to it; you will be giving me the power to sentence you, and if I want to I could send you to a minimum of three, four or five years on an indefinite sentence and keep you in the penitentiary for 15 years. (Tr. 5-6.) The trial court also stated that pleading guilty would make Harris a probation violator as evidenced by the following: COURT: So you will be a probation violator because of this, and if I revoke your probation you will do an additional six months unless you win that case on appeal. Right now you are considered to be on probation. Do you follow what I'm saying here? FRANKS: Yes. -5- Franks then pleaded guilty to possession of cocaine. After the plea was entered, the trial court again asked Franks if he understood that, by pleading guilty, he was a probation violator. Franks replied, "Yes." When asked if he admitted to being a probation violator, Franks said "I thought the probation was not active until the appeal was over." Defense counsel stated that Franks was under the impression that the probation was held in abeyance because he was on appeal. The court ultimately said it would not make a determination whether Franks was a probation violator. The trial court imposed a sentence of 3 years minimum actual to 15 years. This appeal followed. In his first assignment of error, Franks argues his guilty plea was not made knowingly, intelligently or voluntarily. However, the transcript of the proceedings establishes otherwise. When informed of the agreement by the prosecution, Franks said he understood the terms. When informed of the meaning of the plea and the penalty involved, Franks replied he understood. Furthermore, Franks said he understood his plea of guilty would result in a finding that he was a probation violator. He thereafter entered a guilty plea to the judge. In our view, this constitutes a voluntary plea under Crim.R. 11(C)(2). Nevertheless, Franks argues he did not subjectively understand the implications of his plea. Because the conviction for which Franks was on probation was on appeal, he argues he believed he was a first offender and that pleading guilty in this case would not constitute a probation violation. The transcript of the plea -6- proceedings contains no evidence that Franks indicated to the trial court a belief he was a first offender. The confusion about probation arose after the plea was made and after Franks twice said he understood the ramifications of his plea. Although the trial court did engage in some discussion about Franks' probation, that issue was not before the court and the court did not make a determination about whether Franks violated his probation. We also reject Franks' argument that he thought his crime was a third degree felony. The trial court explained that the possession of cocaine charge was a second degree felony and advised Franks of the possible penalties. Franks was present when, in relating the plea agreement to the judge, the prosecutor stated it was a non-probationable offense. The trial court told him it carried mandatory actual jail time. We find ample evidence on the record to indicate that Franks understood the nature of the charge against him and the maximum possible penalty. In his first pro se assignment of error, Franks argues the trial court erred in sentencing him for a second degree felony. As discussed above, we find that the trial court amply explained the nature of the charge against Franks as well as the possible penalties. Nevertheless, Franks argues that he should not have been charged with a second degree felony because he possessed less than three times the bulk amount of cocaine. We reject this argument. A guilty plea constitutes a complete admission of guilt. Crim.R. 11(B)(1). Having determined that Franks' guilty plea was -7- knowingly, voluntarily, and intelligently made, we overrule this assignment of error. Finally, through counsel and pro se, Franks argues he was denied the effective assistance of counsel. In order to prevail on a claim of ineffective assistance of trial counsel, Franks must show that trial counsel's performance fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, the outcome of the trial would probably have been different. Strickland v. Washington (1984), 466 U.S. 668,693,698. In his pro se brief, Franks argues trial counsel improperly failed to present evidence regarding the total weight of the grams of cocaine seized during his arrest. Under the circumstances, trial counsel's election not to contest the amount of cocaine seized can be viewed as a sound strategic decision. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland at 694-695. In addition to possession of cocaine, Franks was charged with the sale of cocaine, possession of criminal tools, and failure to obey the order or signal of a police officer. By negotiating a -8- plea bargain, trial counsel got the state to drop all except the possession charge, greatly reducing the potential penalties faced by Franks. Under the circumstances, we find trial counsel's failure to contest the amount of cocaine was a sound strategic decision which did not fall outside the bounds of objective reasonableness. Franks also argues trial counsel was ineffective because he failed to advise Franks as to the effect of the appeal of his prior conviction and its impact on this case. The record indicates that Franks thought his probation on the prior conviction was not active until his appeal was decided. As discussed above, whether or not Franks' probation was active had no impact on this case. Although Franks now claims he believed he was a first offender, none of his statements before the trial court evidence such a belief. The possession charge against Franks was a second degree felony because he had a prior conviction. If Franks had communicated to the trial court a belief that he was a first offender, such a statement may have indicated a misunderstanding of the nature of the crime he was charged with. There is no indication in the record before the trial court that Franks believed he was a first offender. Furthermore, Franks specifically told the trial court that he understood the charges against him and the possible penalties. In direct contradiction to his claims before this court, Franks told the trial court that he was satisfied with the representation of his trial counsel. -9- COURT: Do you feel you have had enough time to talk to Mr. Kozelka? FRANKS: Yes. COURT: Have you told him everything that you're aware of that could be important in this case? FRANKS: Yes. COURT: Has he done what you have asked him to do? FRANKS: Yes. COURT: What do you think about his representation? FRANKS: It was fine. Because our review of the record indicates Franks understood the implications of his plea, we reject his argument that trial counsel failed to adequately explain its impact. Having found that trial counsel's performance was not deficient, we overrule Franks' second assignment of error and his second pro se assignment of error. Judgment affirmed. -10- 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. JAMES D. SWEENEY, P.J., and NUGENT, J., CONCUR. PATRICIA ANN BLACKMON 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 journaliza- .