COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67074 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DERRICK BURSTON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 11, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-277366-B/ : CR-277500-A JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor GEORGE J. SADD, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: CHARLES H. BRAGG Attorney at Law 7003 Memphis Avenue, Suite A Brooklyn, Ohio 44144 DONALD C. NUGENT, J.: In this appeal, defendant-appellant Derrick Burston (hereafter "appellant") challenges the validity of his guilty plea and conviction for aggravated robbery for the reason that he allegedly did not understand the effect of his guilty plea. For reasons explained more fully below, we do not agree with appellant's arguments, and we affirm the judgment of the trial court. The record reveals that in Case No. CR-277366, appellant was charged with three counts of aggravated robbery with firearm specifications (Counts One, Three and Four), failure to comply (Count Two), and felonious assault (Count Five). A plea of not guilty was entered to each of the charges. Appellant was also charged in Case No. CR-277500 with one count of aggravated robbery with a firearm specification. On June 23, 1992, appellant, represented by counsel, appeared before the court expressing a desire to change his previously- entered plea of not guilty in Case No. CR-277366 to guilty. In exchange for this guilty plea, the state requested that the court delete the firearm specification from Counts One and Three and, further, that the court dismiss Counts Two, Four and Five. With respect to Case No. CR-277500, appellant similarly expressed a - 3 - desire to enter a plea of guilty to aggravated robbery. In exchange for this guilty plea, the state again requested that the court delete the firearm specification contained in the indictment. Before accepting appellant's guilty plea, the trial judge personally addressed appellant, setting forth his constitutional and statutory rights which he was waiving by entering a guilty plea. Appellant, a high school graduate, expressed an understanding of the rights he was waiving by entering a guilty plea and of the maximum penalty which could be imposed by the court. The judge thus accepted appellant's guilty plea and referred the matter to the probation department for a presentencing report. On September 22, 1992, the trial judge sentenced appellant to the Lorain Correctional Institute for a term of six to twenty-five years on amended Counts One and Three in Case No. CR-277366 and to a term of six to twenty-five years on the amended Count One in Case No. CR-277500. The court ordered the terms imposed in Case No. CR- 277366 be served concurrently to the term imposed in CR-277500. Appellant now appeals from this judgment and sentence of the trial court assigning three errors for this court's consideration: I. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY MADE SINCE THE COURT DID NOT SUFFICIENTLY EXPLAIN TO HIM THE MEANING OF THE TERM "NON- PROBATIONABLE OFFENSE." - 4 - II. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE THE COURT DID NOT EXPLAIN TO THE APPELLANT THE MINIMUM AMOUNT OF TIME HE WOULD ACTUALLY HAVE TO SPEND IN PRISON. III. THE APPELLANT'S GUILTY PLEA WAS NOT MADE PURSUANT TO CRIM.R. 11 SINCE THE COURT NEVER PROPERLY INFORMED HIM THAT HE WAS ENTITLED TO APPOINTED COUNSEL AT TRIAL. I. Crim.R. 11(C) provides that the court shall not accept a guilty plea in a felony case without first personally addressing the defendant and: (a) [d]etermining 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) [i]nforming 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) [i]nforming him and determining that he understands that by his plea he is waiving his rights to a 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. The primary purpose of the Crim.R. 11 inquiry is the ascertainment by the court that a defendant entering a plea of guilty does so voluntarily and with the understanding that he is - 5 - waiving constitutional rights. State v. Stone (1975), 43 Ohio St.2d 163. A judgment of conviction following the entry of a plea of guilty will not be disturbed by this reviewing court where it is shown that the trial court substantially complied with the mandates of Crim.R. 11. State v. Nero (1990), 56 Ohio St.3d 106; State v. Stewart (1977), 51 Ohio St.2d 86; State v. Younger (1975) 46 Ohio App.2d 269. Substantial compliance means that under the totality of circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving. Nero and Stewart, supra. Additionally, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. Stewart, supra, at 93; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. In his first assignment of error, appellant contends that although the trial court told him that the sentences to which he would be subject were "non-probationable," the court did not substantially comply with Crim.R. 11(C)(2)(a) as the court failed to explain the meaning of this term. We do not agree. The following comments from the plea hearing are pertinent: THE COURT: Mr. Shaughnessy? [DEFENSE COUNSEL]: We've discussed this matter wi of his Constitutional Rights in this matter. We explained to him the evidence the State of Ohio would present if we proceeded to trial today. - 6 - We explained to him the penalties that could be imposed upon him, guilty pleas as outlined by Mr. Robinson. We have made no threat or promises to Mr. Burston. My understanding is he does make these pleas today and he will be doing so knowingly, intelligently and voluntarily. * * * THE COURT: Right now in the Case 277366 it is my understanding you are entering pleas of guilty to Counts 1 and 3 as amended. They both charge aggravated robbery with a gun, aggravated felony of the first degree. It carries with it a potential penalty of 5, 6, 7, 8, 9, 10 years minimum up to 25 years maximum and a fine not to exceed $10,000. It is not a probationable offense, which means that you will be -- you will receive a sentence within the spectrum that I have just explained. Do you understand that? DEFENDANT: Yes. THE COURT: All right. Then in Case 275700 my understanding is you're entering a plea of guilty to the amended indictment, aggravated robbery with a gun, deleting the gun specification or firearm specification, more properly put, aggravated felony of the first degree, as well. The same potential sentence 5, 6, 7, 8, 9, 10, minimum, to 25 years maximum, non-probationable - 7 - offense, which means again that I cannot suspend the sentence that I impose under that code section. Do you understand that? DEFENDANT: Yes. (Emphasis added.) These comments by the trial judge, defense counsel and appellant indicate that appellant was fully aware of the fact that he was not eligible for probation, which meant that the court could not suspend the sentence imposed. Consequently, we overrule appellant's first assignment of error. Appellant's second assignment of error raises the question of whether Crim.R. 11(C) requires the court to apprise a defendant of the minimum sentence called for. This court has previously determined that Crim.R. 11(C) does not require the court to apprise a defendant of the minimum sentence called for, only the maximum sentence allowed. State v. Smith (Sep. 22, 1994), Cuyahoga App. No. 65192, unreported; State v. Wright (Feb. 11, 1993), Cuyahoga App. No. 64016, unreported. Even so, during the hearing, the trial judge told appellant that such offense was a non-probationable, aggravated felony of the first degree and carried a possible minimum term of five, six, seven, eight, nine or ten years' imprisonment and a maximum of twenty-five years' imprisonment. Appellant did not question the possible minimum sentence and did not express any confusion after the judge announced that appellant was sentenced to a minimum of six years in prison. For that - 8 - reason, we are satisfied that appellant entered his guilty plea with full understanding of its effect. Appellant's second assignment of error is overruled. In his third assignment of error, appellant contends that "[t]hough the court informed [him] that he had a right to counsel, the court did not inform him that this counsel would represent him throughout the proceedings and through to any trial that might take place." We do not agree. A review of the transcript of the plea hearing reveals that the trial court fully apprised appellant that by entering a plea of guilty, he was waiving his constitutional right to be represented by counsel at trial. The court apprised appellant as follows: THE COURT: *** Mr. Burston, it is my duty at this point to apprise you of your Constitutional Rights in connection with a trial and to tell you in the instance you do enter pleas of guilty to these reduced charges, you will be waiving or giving up certain Constitutional Rights and there will not be a trial had regarding the charges. Do you understand that? * * * You have the right to be represented by an attorney, as you are this morning. In the instance that you're found indigent the Court would assign a lawyer to represent you at no cost. Do you understand that? - 9 - DEFENDANT: Yes. (Emphasis added.) As the trial court fully met its obligation in this regard, appellant's third assignment of error is overruled. Based on all of the foregoing, we are satisfied that appellant expressed an understanding of the effect of his plea of guilty and voluntarily entered his plea of guilty and that the trial court appropriately determined the same as is required by Crim.R. 11. 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 Cuyahoga County Court of Common Pleas 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. LEO M. SPELLACY, P.J. ANN DYKE, J. CONCUR JUDGE DONALD C. NUGENT 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 journalization, .