COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68262 & 68263 CITY OF PARMA, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION RUSSELL A. KUKWA, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 3, 1995 CHARACTER OF PROCEEDING : Criminal appeals from : Parma Municipal Court; Case : Nos. 94-CRB-1507-1-1 and : 94-CRB-1588-1-1 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: William D. Mason City of Parma 5750 W. 54th Street Parma, Ohio 44129 For defendant-appellant: Howard B. Maniker Dan A. Morell, Jr. DAN MORELL & ASSOCIATES CO., LPA 600 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 -2- NAHRA, J.: In these consolidated cases, defendant-appellant Russell A. Kukwa appeals from his convictions for violation of two Parma Codified Ordinances ("P.C.O.") as a result of a single incident. The record contains the following pertinent facts. On July 28, 1994, appellant received a citation for violating P.C.O. 648.04(b), Disorderly Conduct While Intoxicated. This was assigned case number 94CRB1507-1-1. Appellant's case was set for trial on August 10, 1994. On August 8, 1994, a complaint was sworn out against appellant which charged appellant had also violated P.C.O. 636.02(a), Assault, on July 28, 1994. This was assigned case number 94CRB1588-1-1. Appellant was served with a copy of the complaint on August 10, 1994. On that same day, appellant appeared for his scheduled trial on case number 94CRB1507-1-1. That case file, on its face, states the charge, its designation as "M-4" (i.e., a fourth-degree misdemeanor), has the trial date stamped on it, and contains a waiver form which states: I, the undersigned defendant in enclosed said case, do hereby waive my right to appear before a judge in open court and elect to appear before the Referee. Appellant's signature appears under the foregoing, next to the trial date stamp. Furthermore, directly beneath appellant's signature appears the following: 1 Although the form uses the term "Referee," the matter was actually heard before a "Magistrate." -3- DEFENDANT PRESENT WITH/WITHOUT COUNSEL; ALL RIGHTS PURSUANT TO CRIMINAL RULES 10 & 11 EXPLAINED. The case file also states appellant "entered plea of NO CONTEST" and was "found GUILTY." A fine of $100.00 was imposed, $25.00 of which was ordered suspended. Appellant's other case was originally set for trial on August 24, 1994; however, the record reflects appellant appeared for trial in case number 94CRB1588-1-1 on August 31, 1994. Once again, on its face, the case file states the charge, its designation as "M- 1" (i.e., a first-degree misdemeanor), and next to the trial date, contains the waiver form signed by appellant directly above the words indicating appellant was "PRESENT WITHOUT COUNSEL; ALL RIGHTS PURSUANT TO CRIMINAL RULES 10 & 11 EXPLAINED." Once again, the file also indicates appellant "entered plea of NO CONTEST" and was "found GUILTY." Furthermore, the trial court's journal entry indicates appellant's plea "was accepted by the court after explaining Defendant's rights under Criminal Rule 11." The case was "passed for sentencing until 9-14-94 (sic) * * * ." On September 14, 1994, a sentencing hearing in case number 2 94CRB1588-1-1 was held. Appellant was sentenced to a term of incarceration of 90 days, and ordered to pay a fine of $750.00; however, the trial court suspended 85 days of the sentence and $400.00 of the fine. 2 A tape-recording was made of this hearing; however, since the tape is either damaged or defective, the sounds contained on it cannot be either deciphered or transcribed. -4- On November 14, 1994, appellant, by and through counsel, filed a motion to withdraw his pleas entered in both cases. To his motion, appellant attached his affidavit wherein he stated he "was not aware of the penalty (sic) * * * including incarceration" and that he "was denied the assistance of counsel at the time of such pleas." On November 16, 1994, the trial court denied appellant's motions to withdraw his pleas. Thereafter, appellant filed timely notices of appeal in this court. Case number 94CRB-1507-1-1 was assigned App. No. 68262. Case number 94CRB1588-1-1 was assigned App. No. 68263. This court subsequently granted appellant's motions both to consolidate his cases for hearing and disposition and to amend his praecipe and docketing statements from their App.R. 9(B) designations to App.R. 3 9(C) instead. 3 App.R. 9 states in pertinent part: (B) The transcript of proceedings; duty of appellant to order; notice to appellee if partial transcript is ordered. At the time of filing the notice of appeal the appellant, in writing, shall order from the reporter a complete transcript or a transcript of the parts of the proceedings not already on file as the appellant considers necessary for inclusion in the record and file a copy of the order with the clerk. * * * If there is no officially appointed reporter, App.R. 9(C) or 9(D) may be utilized. * * * (C) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's -5- On February 16, 1995, appellant filed in the trial court his 4 proposed statements of the proceedings in both cases. On February 23, 1995, the trial court journalized the following "Statement of Proceedings" in case number 94CRB1507-1-1 (App. No. 68262): On August 10, 1994, Defendant entered a plea of No Contest to charge of Disorderly Conduct in violation of Parma Codified Ordinance 648.04[,] Ater (sic) being advised of all constitutional rights, including right to counsel , (sic) in open court[,] Defendant was found Guilty and fined $100.00 and Costs with $25.00 suspended. On November 15, 1994, Defendant filed a Motion To Withdraw pleas which was considered and denied on November 16, 1994, by Magistrate Edward J. Fink. (See OSJ Vol. 89 Page 101.) That same day, the trial court journalized the following "Statement of Proceedings" in case number 94CRB1588-1-1 (App. No. 68263): On August 31, 1994, Defendant plead No Contest to Assault in violation of Parma Codified Ordinance 636.02 (Assault). Defendant was found Guilty after being advised of all constitutional rights and his right to consult with an Attorney. He declined right to legal recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to App.R. 10, who may serve objections or propose amendments to the statement within ten days after service. The statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act prior to the time for transmission of the record pursuant to App.R. 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal. 4 The record does not reflect whether appellee the City of Parma filed objections or proposed amendments to appellant's statements of the proceedings in the trial court. -6- counsel. Matter was passed for sentencing until 9-14- 94. On that date (9-14-94) Defendant was sentenced to 90 days jail, with 85 days jail suspended and a fine of $750.00 with $400.00 suspended. He was placed upon probation for two years. Defendant informed Court that he had joint custody of minor children and would relinquish residential status to ex-wife on 1-1-95. Court agreed to defer jail time until after 12-31-94. On November 15, 1994 a Motion to Withdraw Plea was filed and sent to Magistrate Edward J. Fink for review. On November 16, 1994 motion was considered and denied by Magistrate Edward J. Fink. (See OSJ Volume 89 page 101[)]. On February 24, 1994, the foregoing App.R. 9(C) statements of proceedings were duly filed in this court. Appellant presents two assignments of error for this court's review. I. Appellant's first assignment of error states: THE TRIAL COURT FAILED TO COMPLY WITH THE MANDATE OF CRIM. RULE 11 WHEN ACCEPTING THE PLEAS IN PARMA MUNICIPAL COURT CASE NUMBERS 94CRB1507-1-1 AND 94CRB1588-1-1. Appellant argues his convictions must be reversed, contending "it cannot be presumed" on the record before this court appellant's waiver of his constitutional rights was knowing, voluntary, or 5 intelligent as required by Crim.R. 11. Appellant cites Boykin v. 5 Crim.R. 11 states in pertinent part: RULE 11. Pleas, Rights Upon Plea * * * -7- Alabama (1969), 395 U.S. 238 and Garfield Heights v. Brewer (1984), 17 Ohio App.3d 216 as authority for his position. This court does not agree. Although appellant characterizes the record as "silent," he neglects to consider the statements of proceedings journalized by the trial court in these cases. These statements comprise the record on appeal and affirmatively "demonstrate that the trial court engaged in a meaningful dialogue with the defendant prior to accepting his plea." State v. Little (Oct. 4, 1990), Cuyahoga App. No. 57535, unreported. See, also, State v. Leonard (Apr. 22, 1993), Cuyahoga App. No. 63865, unreported; State v. Kelly (Oct. 29, 1992), Cuyahoga App. No. 61722, unreported; cf., State v. Mascaro (1991), 81 Ohio App.3d 214; State v. Thomas (1990), 67 Ohio (D) Misdemeanor cases involving serious offenses. In misdemeanor cases involving serious offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without first addressing the defendant personally and informing him of the effect of the plea of guilty, no contest, and not guilty and determining that he is making the plea voluntarily. Where the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (E) Misdemeanor cases involving petty offenses. In misdemeanor cases involving petty offenses the court may refuse to accept a plea of guilty or no contest, and shall not accept such plea without fist informing the defendant of the effect of the pleas of guilty, no contest, and not guilty. The counsel provisions of Rule 44(B) and (C) apply to this subdivision. -8- App.3d 127; State v. Beasley (Dec. 10, 1992), Cuyahoga App. No. 61977, unreported. Moreover, these statements are supported by the case files themselves and the trial court's other journal entries. State v. Kelly, supra; cf., State v. Vandersommen (July 23, 1992), Cuyahoga App. Nos. 60738 and 60739, unreported. Thus, since appellant's' arguments with regard to his first assignment of error are unsubstantiated, it fails. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED DENYING APPELLANT'S MOTION TO WITHDRAW PLEA OF NO CONTEST (OR GUILTY) BECAUSE APPELLANT DID NOT MAKE A KNOWING AND INTELLIGENT ORAL WAIVER OF HIS RIGHT TO COUNSEL IN OPEN COURT IN PARMA MUNICIPAL COURT CASE NUMBERS 94CRB1507-1-1 AND 94CRB1588-1-1. Appellant argues his motions to withdraw his pleas were improperly denied. He contends the discrepancy between his version of the facts and the magistrate's version as set forth in the statement of proceedings "can only be resolved by referring to a recorded transcript" of the plea hearings, and since none exists, appellee "failed to meet its burden to show compliance with the rules." Once again, appellant fails to grasp the significance of the trial court's App.R. 9(C) statements of proceedings. For purposes of the record on appeal, the issue of the trial court's compliance with Crim.R. 11 is settled. State v. Little, supra; State v. Kelly, supra; cf., State v. Thomas, supra. -9- Furthermore, pursuant to Crim.R. 32.1, once sentence is imposed a trial court may grant a defendant's motion to withdraw his plea only to correct "manifest injustice." State v. Smith (1977), 49 Ohio St.2d 261; State v. Peterseim (1980), 68 Ohio App.2d 102; State v. Xie (1992), 62 Ohio St.3d 521. Since the record on appeal in these two cases fails to demonstrate that any irregularities occurred at appellant's plea hearing, or that appellant "maintained his innocence," no manifest injustice needed correction; therefore, the trial court did not err in denying appellant's motion to withdraw his pleas. State v. Drake, supra; State v. Zemla (May 18, 1995), Cuyahoga App. No. 68081, unreported; cf., Garfield Heights v. Brewer; State v. Thomas, supra. Accordingly, appellant's second assignment of error is also overruled. Appellant's convictions and sentences are 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 Parma Municipal 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. PATTON, C.J., and DYKE, 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 .