COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67968 and 67969 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS TOTARELLA : : Defendant-appellant : : DATE OF ANNOUNCEMENT : MAY 18, 1995 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case Nos. CR-308959 [67968] and CR-309773 [67969]. JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: MICHAEL BEDNAR, ESQ. PAUL MANCINO, JR., ESQ. Assistant County Prosecutor Suite 1016 Justice Center-8th Floor 75 Public Square 1200 Ontario Street Cleveland, OH 44113-2098 Cleveland, OH 44113 - 2 - PATTON, C.J. This is a consolidated appeal from case numbers 67968 and 67969. Defendant-appellant, Thomas Totarella, ("appellant") appeals his guilty plea for felonious assault in violation of R.C. 2903.11 and robbery in violation of R.C. 2911.02. On May 5, 1994, appellant was indicted for felonious assault with a peace officer with an aggravated felony specifications under case number 67968. On May 26, 1994, appellant entered a plea of not guilty. On August 16, 1994, appellant entered a plea of guilty to an amended complaint of felonious assault. On July 6, 1994, appellant was indicted for robbery and possession of criminal tools. At appellant's arraignment on July 20, 1994, he entered a plea of not guilty. On August 16, 1994, appellant entered a plea of guilty to robbery and the second count of possession of criminal tools was dropped. On September 9, 1994, appellant filed a motion to withdraw his guilty pleas for felonious assault and robbery. The motion was denied after a hearing on September 12, 1994, and the trial court sentenced appellant to a term of imprisonment of 10 to 15 years, 10 years actual incarceration on each count, to run consecutively. Appellant's first assignment of error states: I. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HIS PLEAS OF GUILTY WERE INVOLUNTARY WHERE THEY WERE INDUCED BY UNFULFILLED PROMISES BY THE COURT. Appellant asserts that his guilty pleas were not voluntary because they were induced by unfulfilled promises by the court. - 3 - Specifically, appellant maintains that he was promised by the court that the plea bargain which was offered would result in an 8 to 15 year sentence and this was an improper inducement because he received two consecutive terms of 10 to 15 years incarceration. Crim. R.11(C) provides: * * * (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. * * * The Ohio Supreme Court has articulated very clear rules on when there has been compliance with Ohio Criminal 11(C)(2), as well as when a criminal defendant has adequately been informed of the nature of the charges against him. See State v. Stewart (1977), 51 Ohio St.2d 86; State v. Nero (1990), 56 Ohio St.3d 106. - 4 - Literal compliance with Crim.R. 11 is certainly the preferred practice. However, the fact that the trial judge did not strictly comply with Crim.R. 11 does not compel vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. Nero, supra, at 108. In Stewart, the rule is that an evaluation of the circumstances of the case is necessary to determine if there is substantial compliance with Crim.R. 11. Substantial compliance allows the trial court to infer from the totality of the circumstances that the defendant understood the charges against him. Stewart, supra, at 93. After a thorough review of the guilty plea hearing transcript we conclude that the trial court substantially complied with Crim. R. 11. The transcripts show that the court never promised the appellant that it would sentence him to two 8 to 15 year terms of incarceration. The court merely stated that the state was offering two 8 to 15 year terms. Moreover, the transcripts show that court outlined the penalties on the record prior to the acceptance of the guilty plea and asked the appellant if any promises or threats had been made to induce his plea. The appellant stated on the record that no promises were made to him. Accordingly, appellant's first assignment of error is overruled. Appellant's second and fourth assignments of error will be considered together: - 5 - II. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO ALLOW THE DEFENDANT TO WITHDRAW HIS PLEAS OF GUILTY. IV. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT CONDUCT AN ACTUAL HEARING ON [SIC] MOTION TO WITHDRAW THE PLEA AND BASED ITS FINDINGS ON ITS OWN PERSONAL KNOWLEDGE. Appellant asserts that he was denied due process of law when the court refused to allow him to withdraw his guilty pleas and did not conduct a hearing on his motion. Specifically, appellant maintains that his attorney never investigated possible defenses on his behalf, therefore he was not properly advised to enter the pleas of guilty. Moreover, the appellant claims that he was denied due process of law when the trial court did not grant him a hearing on his motion to withdraw his guilty plea. The Ohio Supreme Court has recently held that "[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing." State v. Xie (1992), 62 Ohio St.3d 521, paragraph one of the syllabus. Moreover, the trial court must conduct a hearing to ascertain whether there is a reasonable and legitimate bases for the withdrawal of the plea. Id. Xie, supra, also states that "[e]ven though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, * * * still the decision thereon is with the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a - 6 - guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. * * *" Id. at 526, (citation omitted.) First, we note that a hearing was held on appellant's motion to withdraw his guilty pleas. Second, after a thorough review of the transcripts of the hearing we hold that the trial court did not abuse its discretion by denying appellant's motion. Finally, the record is clear that appellant's trial counsel had conducted proper discovery and was present for pretrial set by the court. Appellant's second and fourth assignments of error are overruled. Appellant's third assignment of error states: III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT DID NOT FULLY INFORM THE DEFENDANT THAT HE WAS ENTERING PLEAS OF GUILTY TO OFFENSES WHICH CARRIED ACTUAL INCARCERATION. Appellant asserts that he was denied due process of law when the court did not fully inform him that he was entering pleas of guilty to offenses which carried actual incarceration. Specifically, appellant claims that there is a difference between a non-probationable offense and an offense carrying actual incarceration. Initially we note that with respect to the robbery offense the trial court specifically stated: * * * count one robbery, and that is also an aggravated felony of the second degree, bears a possible penalty of actual incarceration of 8, - 7 - 9, 10, 11, 12 to 15 years, non-probationable. * * * It is clear that the trial court strictly complied with Crim.R. 11 by stating the words "actual incarceration," therefore the guilty plea for robbery was proper. Next we must address the felonious assault charge. The trial court stated: * * * that is an aggravated felony of the second degree, non-probationable, bears a possible penalty of incarceration for 8, 9, 10, 11, 12 to 15 years. * * * The trial court did not use the term "actual incarceration;" however, it did state "non-probationable." As set forth in the first assignment of error, Crim.R. 11(C)(2)(a) states the trial court must inform the defendant that he is not eligible for probation. The trial court clearly complied with Crim.R. 11. Accordingly, appellant's third assignment of error is overruled. Judgment affirmed. - 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 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. JAMES D. SWEENEY, J. JAMES M. PORTER, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON 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, .