COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67755 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROBERT NUNN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-258021 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES DRAPER, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender DIANE SMILANICK, ESQ. ARTHUR A. ELKINS, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 ROBERT NUNN, pro se No. A-231-486 Mansfield C.I. P.O. Box 1368 Mansfield, Ohio 44901 - 2 - KARPINSKI, J.: Once again, this court is faced with the task of reviewing the guilty plea and sentence of defendant-appellant, Robert Nunn. This case began when appellant pled guilty on January 4, 1991 to the second count of case No. 256918 and the first count of case No. 259021. Defendant was then sentenced to three years actual incarceration in case No. 258021 to run consecutively with an indefinite sentence of nine to twenty-five years in case No. 256918. This court, on July 15, 1993, affirmed appellant's conviction but remanded the case to correct the sentence in case No. 256918. The trial court resentenced appellant to five years actual incarceration to run consecutively with an indefinite sentence of seven to twenty-five years in case No. 256918. This court affirmed the new sentence in case No. 256918. The state of Ohio on April 15, 1994, filed a motion to correct the sentence in case No. 258021. This motion was granted by the trial court on July 19, 1994, which imposed a new sentence of three years actual incarceration to run consecutively with an indefinite term of five to fifteen years incarceration in case No. 258021. This sentence for case No. 258021 was to run consecutively with the sentence in case No. 256918. Appellant timely filed a notice of appeal on August 17, 1994. Appellant's first assignment of error states as follows: APPELLANT'S SENTENCE WAS ILLEGALLY ENHANCED WHEN THE STATE FAILED TO DEMONSTRATE THAT APPELLANT'S 1973 AND 1978 CONVICTIONS FOR SALE OF A NARCOTIC DRUG AND DRUG - 3 - TRAFFICKING, RESPECTIVELY, REPRESENTED PRIOR FELONY DRUG ABUSE CONVICTIONS. Under R.C. 2925.03(C)(4), a defendant's sentence is enhanced from a third degree felony to a second degree felony if the defendant has previously been convicted of a felony drug abuse offense. Revised Code 2925.03(C)(4) provides as follows: (4) Where the offender has violated division (A)(4) of this section, aggravated trafficking is a felony of the third degree, and the court shall impose a sentence of actual incarceration of eighteen months, except that, if the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years. Accordingly, the state must prove that a defendant "previously has been convicted of a felony drug abuse offense" in order to have the penalty enhanced. In this assignment of error, appellant argues that when the trial court corrected his sentence in case No. 258021, the trial court improperly enhanced the present conviction. Appellant argues that the state failed to prove that his prior convictions, represented by the two "furthermore" clauses in the indictment, were felony drug convictions. Appellant's argument is without merit. Appellant was indicted in case No. 258021 for possession of cocaine greater than the bulk amount but less than three times the amount. The indictment additionally contained the following clauses: FURTHERMORE, the said Robert C. Nunn, with counsel, on or about the 2nd day of November, 1978, in the Court of Common Pleas of Cuyahoga County, Ohio, - 4 - Case No. 38620, having been convicted of the crime of Drug Trafficking, in violation of Revised Code Section 2925.03 of the State of Ohio. FURTHERMORE, the said Robert C. Nunn, with counsel, on or about the 26th day of July, 1973, in the Court of Common Pleas of Cuyahoga County, Ohio, Case No. CR 6915, having been convicted of the crime of Sale of Narcotic Drug, in violation of Revised Code Section 3719.20B of the State of Ohio. Appellant argues that nowhere in these two clauses does it state that either of these prior convictions was a felony. Appellant further argues that the state of Ohio failed to present by way of certified copy of these previous drug abuse 1/ convictions, that these prior convictions were felonies. Revised Code 3719.99 specifies the penalty for one of appellant's convictions. The second "furthermore" clause noted appellant's prior conviction for the sale of narcotic drug in 2/ violation of R.C. 3719.20(B). The penalty for a violation of R.C. 3719.20(B) is imprisonment of not less than twenty nor more than forty years, which length qualifies the offense as a felony. Therefore, appellant's conviction was properly enhanced from a third degree felony to a second degree felony pursuant to R.C. 2925(C)(4). Appellant's first assignment of error is overruled. Appellant's second assignment of error states as follows: IN CONTRAVENTION OF R.C. 2933.41 THROUGH 2933.43, THE TRIAL COURT ERRED BY ALLOWING THE FORFEITURE OF APPELLANT'S AUTOMOBILE AND $2186.00 IN CASH, IN EXCHANGE FOR HIS PLEA OF GUILTY. 1/ We agree with appellant that the prosecution should have attached proof of these prior felonies. 2/ This statute, in effect at the time of appellant's conviction in 1973, was repealed in 1976. - 5 - Regarding this assignment of error, appellant argues that it was in error for the trial court to allow appellant to forfeit his car and $2,186 in cash as part of his guilty plea. Appellant cites State v. Delgado (June 11, 1992), Cuyahoga App. No. 60587/60588, unreported, for the proposition that the trial court must strictly follow the procedure of R.C. 2933.43 regarding forfeiture of property, and failure to do so results in the forfeiture order being void. This case does not control the issue at hand. In Delgado, the court ordered the defendant's vehicle be forfeited in order to pay the court costs. In the case at bar, however, the lower court did not order the forfeiture of the vehicle, but merely allowed appellant to forfeit the vehicle and the cash as part of the plea agreement. When the defendant forfeits a car as part of a plea agreement, authorities are not required to adhere to the strict requirements of statutory forfeitures. State v. Gladden (1993), 86 Ohio App.3d 287. A review of the record reveals that appellant voluntarily gave up his car and the cash as part of the plea bargain agreement. This assignment of error is overruled. Appellant's third assignment of error states as follows: APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED WHERE HIS PLEA RELIED ON THE COURT'S ABILITY TO SENTENCE HIM, PURSUANT TO R.C. 2925.03(C)(4), TO A DEFINITE TERM OF THREE YEARS ACTUAL INCARCERATION ONLY. In this assignment of error, appellant argues that the trial court erred in accepting his guilty plea. Crim.R. 11 was adopted - 6 - in order to safeguard a defendant's constitutional rights and states, in pertinent part, as follows: (C) Pleas of Guilty and No Contest in Felony Cases. * * * (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. * * * (F) Negotiated Plea in felony cases. When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court. The Ohio Supreme Court has held a trial court's colloquy with a defendant pursuant to Crim.R. 11(C) must demonstrate substantial compliance with the requirements of the rule. Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea - 7 - and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore, 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, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. State v. Nero (1990), 56 Ohio St.3d 106, 108. To start, we recognize that this court has already approved appellant's guilty plea in State v. Nunn (July 15, 1993) Cuyahoga App. No. 63235, unreported. Additionally, after appellant was re-sentenced in case No. 256918, this court again found that appellant's guilty plea should stand even after his sentence was corrected. State v. Nunn (Aug. 25, 1994) Cuyahoga App. No. 66221, unreported. In the instant case we are reviewing the guilty plea made in case No. 258021. This guilty plea was made at the same time as the guilty plea in case No. 256918. In essence, we are reviewing the same guilty plea for the third time. Notwithstanding the fact that appellant's guilty plea has previously been affirmed by this court, a review of the record reveals appellant's guilty plea was knowingly and voluntarily made. This court has twice determined that the trial court substantially complied with Crim.R. 11 in accepting appellant's guilty plea. State v. Nunn (July 15, 1993), Cuyahoga App. No. 63235, unreported. State v. Nunn (Aug. 25, 1994), Cuyahoga App. No. 66221, unreported. Appellant, in the instant appeal, argues that his guilty plea should not stand because he was not informed - 8 - of the possibility that his sentences could be applied consecutively. At the time the guilty plea was taken, the court discussed the maximum sentence that could be imposed in case No. 258021. THE COURT: All right. And then in Case No. 258021 my information is that state has indicated to me that you choose to plead guilty to count one, that charge is a felony of the -- aggravated felony of the second degree, carries with it periods or incarceration of two, three, four or five up to fifteen years, the law says three years must be a period of mandatory incarceration, and you must be given a fine of up to seven thousand, five hundred dollars, but you must be given a fine of five thousand dollars as a mandatory fine. Do you understand that? THE DEFENDANT: Yes, sir. The discussion between appellant and the trial court reveals that appellant was aware that the crime he was pleading guilty to in case No. 258021 carried a sentence of three years actual incarceration with the possibility of an indefinite sentence of up to 15 years. This court has held that as long as there is substantial compliance with Crim.R. 11, the failure to explain fully the possibility of consecutive sentences will not provide a basis for vacating a guilty plea. State v. Hollins (Oct. 20, 1983), Cuyahoga App. No. 46558; State v. Flint (1986), 36 Ohio App.3d 4; State v. Nunn (Aug. 25, 1994), Cuyahoga App. No. 66221, unreported. In light of the fact that under Ohio law it is not necessary to inform the defendant of the possibility of consecutive sentences, and, having found that the trial court 1) substantially complied with Crim.R. 11 and 2) informed the - 9 - defendant of the maximum sentence that could be imposed, we find this assignment of error to be without merit. Appellant's fourth assignment of error and two pro-se assignments of error concern the same issue and state as follows: APPELLANT'S SENTENCE OF THREE YEARS ACTUAL INCARCERATION, SERVED CONSECUTIVE TO AN INDEFINITE TERM OF FIVE TO FIFTEEN YEARS FOR A SINGLE CONVICTION OF AGGRAVATED TRAFFICKING, IS IMPERMISSIBLE AS IT EXCEEDS THE STATUTORILY PERMISSIBLE SENTENCE FOR THE CRIME. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF DEFENDANT-APPELLANT BY IMPOSING TWO SEPARATE AND DISTINCT SENTENCES FOR A SOLITARY OFFENSE; THEREBY SUBJECTING DEFENDANT-APPELLANT TO DOUBLE JEOPARDY IN VIOLATION OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE PREJUDICE OF DEFENDANT-APPELLANT BY UNLAWFULLY INCREASING DEFENDANT-APPELLANT'S SENTENCE, IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE, AFTER DEFENDANT- APPELLANT'S EXPECTATION OF FINALITY IN SENTENCE HAD BEEN CLEARLY ESTABLISHED. Defendant was sentenced to an actual term of incarceration of three years pursuant to R.C. 2925.03(C)(4). This sentence was to run consecutively with an indefinite term of five to fifteen years pursuant to R.C. 2929.11(B)(5). R.C. 2925.03(C)(4) provides as follows: Where the offender has violated division (A)(4) of this section, aggravated trafficking is a felony of the third degree, and the court shall impose a sentence of actual incarceration of eighteen months, except that, if the offender previously has been convicted of a felony drug abuse offense, aggravated trafficking is a felony of the second degree, and the court shall impose a sentence of actual incarceration of three years. R.C. 2929.11(B)(5) states as follows: - 10 - For a felony of the second degree, the minimum term shall be two, three, four, or five years, and the maximum term shall be fifteen years; The issue raised by this appeal is whether these two penalties shall be imposed consecutively or currently. This court was previously confronted with this issue when we reviewed appellant's re-sentencing in case No. 256918, State v. Nunn (Aug. 25, 1994), Cuyahoga App. No. 66221, unreported. In that case this court held that the action by the trial court in having the indefinite term from R.C. 2929.11 running consecutively with the actual incarceration term of R.C. 2925.03 was valid. Subsequent to Nunn, this court in State v. Brown (Dec. 1, 1994), Cuyahoga App. No. 67017, unreported, reiterated its position that it is in the trial court's discretion as to whether sentences pursuant to R.C. 2929.11 and R.C. 2925.03 are to be served concurrently or consecutively. The court in Brown stated as follows: It should be emphasized that the trial court, in its discretion, may impose consecutive sentences when sentencing a defendant to a term of actual incarceration pursuant to R.C. 2925.03(C)(6) and to an indefinite term of incarceration pursuant to R.C. 2929.11(B). Our holding today merely points out that such sentences are not required to be served consecutively. The most recent pronouncement on this issue by this court was State v. Martinez (Mar. 2, 1995), Cuyahoga App. No. 66992, unreported. In Martinez, the court upheld the trial court's sentencing of the defendant to an actual term of incarceration, pursuant to R.C. 2925.03, that ran consecutively with an indefinite term pursuant to R.C. 2929.11. - 11 - This court has consistently held that the trial judge has discretion to order sentences imposed under R.C. 2929.11 and R.C. 2925.03 to run either concurrently or consecutively. The trial court did not err in sentencing defendant to three years actual under R.C. 2925.03 to run consecutive to an indefinite term of five to fifteen years under R.C. 2929.11. This assignment of error is overruled. Judgment affirmed. - 12 - 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. LEO M. SPELLACY, J., CONCURS; PATTON, C.J., CONCURS IN JUDGMENT ONLY (See Concurring Opinion). DIANE KARPINSKI 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 the time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67755 STATE OF OHIO : : CONCURRING Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT NUNN : : Defendant-appellant : : DATE SEPTEMBER 21, 1995 PATTON, C.J., CONCURRING IN JUDGMENT ONLY: I concur with the court's opinion, but write separately to address my concerns raised by defendant's fourth assignment of error. In State v. Arnold (1991), 61 Ohio St.3d 175, the syllabus states "*** the indefinite term of imprisonment prescribed by R.C. 2929.11(B) is imposed in addition to a period of actual incarceration prescribed by R.C. 2925.03(C)." (emphasis added). In State v. Odubanjo (1992), 80 Ohio App.3d 329, this court interpreted Arnold's "in addition to" language to require an indefinite term of incarceration under R.C. 2929.11 "be served subsequent to" the term of actual incarceration ordered by R.C. 2925.03. Id. at 336; see, also, State v. Jackson (Aug. 4, 1994), Cuyahoga App. No. 65957, unreported (relying on Arnold and Odubanjo, plain error in drug law violation sentencing required - 2 - remand for imposition of new sentence to reflect an indefinite term "to be served subsequent to" term of actual incarceration). Almost immediately, we retreated from Odubanjo's reliance upon the Arnold "in addition to" language, holding it does not require the indefinite term of incarceration to be served consecutive to the actual term. Instead, we now find trial judges have the discretion to impose the terms consecutively if they wish. As rationale for this retreat, this court stated the sentencing issue in Odubanjo was merely dicta because "[n]either the state nor the defendant challenged that part of the sentencing court's order imposing concurrent indefinite terms of imprisonment." See State v. Brown (Dec. 1, 1994), Cuyahoga App. No. 67017, unreported at 5 (emphasis in original); State v. Herring (July 28, 1994), Cuyahoga App. No. 65815, unreported ("[w]e do not feel bound to follow the sentencing as it was ordered in Odubanjo because the sentence itself is not the holding of the case and, therefore, not binding precedent."). Indeed, the writer of Odubanjo now appears to have adopted the view that Arnold gives the trial judge discretion to impose an actual term of incarceration consecutively with an indefinite term of incarceration under R.C. 2929.11. See State v. Martinez (Mar. 2, 1995), Cuyahoga App. No. 66992, unreported. Regardless whether Odubanjo was dicta, Arnold most certainly was not. Our cases continue to beg the question whether the words "in addition to" contained in the syllabus of Arnold - 3 - require the imposition of a consecutive term of actual incarceration. Rule 1(B) of the Supreme Court Rules for the Reporting of Opinions states the syllabus sets forth the authoritative basis for the court's decision. Akers v. Serv-A- Portion, Inc. (1987), 31 Ohio St.3d 78,79, fn.1; Reynoldsville Casket Co. v. Hyde (1995), 115 S.Ct. 1745, 1748. While this court now takes the position that Arnold gives the sentencing court discretion to impose an actual term consecutive to an indefinite term of incarceration, I believe that position is at odds with the specific wording of the syllabus. Hence, while I agree the trial court properly ordered the indefinite term of incarceration to be served consecutive to the actual term, I believe Arnold gives the sentencing court no discretion to order otherwise. At the least, the syllabus law of Arnold requires an authoritative explanation. I am hopeful the supreme court will .