COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68447, 68448, 68449, 68450, 68451, 69306 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY S. HUNTER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JANUARY 25, 1996 CHARACTER OF PROCEEDING Criminal appeals from Court of Common Pleas Case Nos. 267270, 292017, 294278, 294279, 294280, 294281 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES DALE M. HARTMAN, ESQ. Cuyahoga County Prosecutor 950 Leader Building REBECCA MALECKAR, Assistant East 6th and Superior Prosecuting Attorney Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 - 3 - JAMES M. PORTER, P.J., Defendant-appellant Anthony Hunter presents these consolidated appeals from his convictions following guilty pleas to: seven aggravated burglary counts (R.C. 2911.11) with six aggravated felony specifications; one count of attempted burglary (R.C. 2923.02); one count of felonious assault (R.C. 2903.11); one count of aggravated robbery (R.C. 2911.01); and one count of robbery (R.C. 2911.01), all with aggravated felony specifications. Defendant contends the pleas were not knowingly, willingly or intentionally made in violation of Crim. R. 11 and his constitutional rights and that the trial court coerced defendant's pleas by threatening remarks. We find no error and affirm. The background leading to the defendant's pleas is set forth below. Defendant was indicted on June 24, 1991 for one count of aggravated burglary in CR 267270. On September 4, 1991, defendant first appeared in court and was represented by counsel in CR 267270. The prosecutor placed the plea offer on the record: stating the plea agreement as to attempted burglary (R.C. 2923.02), an aggravated felony of the third degree; stating the range of sentences (two, three, four, five to ten years) and a possible fine of $5,000. Defense counsel and the court agreed with the prosecutor's statement of the penalties and the plea agreement. (September 4, 1991, Tr. 3-6.) - 4 - The court explained the possible consequences of the plea agreement to defendant and specified that defendant would receive a sentence of two to ten years, concurrent with a sentence he was already serving at the time of the plea. Defendant then acknowledged his understanding. (Tr. 6). Before explaining the waiver of his rights upon entering the plea, the court engaged in a colloquy with defendant and determined that he was able to understand the proceedings and again explained the sentencing implications, which defendant stated he understood. (Tr. 7-8). The court explained defendant's rights pursuant to Crim. R. 11(C). Defendant stated that he understood he was waiving his trial rights, had made the decision to plead guilty of his own free will, had not been threatened or promised anything and had no questions. (Tr. 8-9). Defendant then entered a plea of guilty to attempted burglary (Tr. 10) and was sentenced to two to ten years. Defendant was released on shock probation on July 2, 1992. After defendant was released on shock probation, he was indicted on March 23, 1993 in five new cases on twenty felony charges including burglary in CR 292017, 294278, 294279, 290280, and 294281. Those cases arose as a result of various incidents occurring in dwelling and nondwelling units in which defendant was alleged to have unlawfully participated. For participation in these offenses and various probation violations defendant was also alleged to be a probation violator in the original case. - 5 - A probation revocation hearing was held on July 7, 1993 in the original case (CR 267270) in which defendant was represented by counsel. The probation department reported that defendant had failed to follow the drug/alcohol rehabilitation requirements of his shock probation, failed to report as required and was charged with the new offenses. (July 7, 1993, Tr. 3-4.) The court noted that a plea bargain had been proposed by the prosecutor whereby defendant could plead guilty to ten of the new offenses, receive concurrent sentences of 11 to 25 years and the court would terminate the shock probation without imposition of the original sentence. (Tr. 7-8.) The court also noted that he was willing to hear the probation violation matter if the plea bargain was not acceptable, but that there was a "strong probability that you [defendant] could be a probation violator within the next 5 minutes." Defendant was invited to talk the plea opportunity over with counsel and report back at 2:30 p.m. following the lunch hour. (Tr. 8-10.) Before adjourning, the court stated as follows: Now, you were shocked out of the institution, and Mr. Gasior appeared at your side, and you had every consideration from this Court. I told you exactly what was going to happen if you came back after committing any crimes, and that was that you were going to get the maximum, consecutive. If you don't want the plea bargain offer, fine. We're going to proceed to trial on each and every case, and if you are found not guilty, God bless you; if you are found guilty, maximum, consecutive, and I will write the - 6 - Parole Board, and you will spend the rest of your life in there. That's the parameters, and you may discuss this with your attorney, and we'll return at 2:30. Following the luncheon recess, defense counsel indicated that defendant wished to accept the plea agreement and both the prosecutor and the defense counsel outlined the disposition proposed. (Tr. 12-18.) The court explained defendant's constitutional rights to him and that his guilty plea waived those rights. (Tr. 18-20.) In response to the court's questions, defendant stated that he was making the pleas freely, knowledgeably and voluntarily and that no one had threatened or promised him anything in order to make him enter a plea. (Tr. 20-21.) Defendant then pled guilty to the ten counts and the State nolled the rest. The court found that: By virtue of these pleas, and by virtue of your other conduct, your failure to report, you are a probation violator; however I will simply terminate your probation without imposition of the original sentence in that case. (Tr. 23.) Prior to sentencing, defendant was given an opportunity to speak, and among other things claimed he could not remember breaking into certain people's houses or beating them up. He said he pled guilty because he "had no choice" since the court told him if he lost at trial, "you already told me what you are going to do to me." (Tr. 26.) He was referring to the fact the court told him he would likely be found to be a probation violator if he chose not - 7 - to take the plea and that if found guilty at trial his sentences would be imposed consecutively. The court sentenced defendant to 11 to 25 years on the five charges to run concurrently per the agreement. On July 17, 1995, defendant filed a delayed notice of appeal in the original criminal case. Prior to the court granting that motion for delayed appeal which requested consolidation with the other five pending cases, defense counsel completed and filed assignments of error and a merit brief in the five other cases. The original case and the five other appeals have all been consolidated for disposition. The defendant's Assignments of Error I, II and III are identical in all the appeals and will be considered together since they are interrelated and would benefit from joint discussion. I. THE PROCEEDINGS BELOW WERE DEFECTIVE IN THAT NO INQUIRY WAS MADE REGARDING WHETHER DEFENDANT UNDERSTOOD THE NATURE OF THE CRIME AND CONSEQUENTLY THE COURT ERRED IN ACCEPTING A PLEA WHICH WAS NEITHER KNOWINGLY, WILLINGLY NOR VOLUNTARILY MADE IN VIOLATION OF CRIM.R. 11 AND DEFENDANT'S CONSTITUTIONAL RIGHTS. II. THE COURT ERRED IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL AND CRIM.R. 11 RIGHTS BY FAILING TO DETERMINE WHETHER HE HAD MADE A RATIONAL CALCULATION THAT IT WAS IN HIS BEST INTEREST TO ACCEPT THE PLEA BARGAIN. III. THE TRIAL COURT ERRED IN OVER ZEALOUSLY PARTICIPATING IN THE PLEA NEGOTIATIONS BY MAKING COERCIVE AND THREATENING STATEMENTS WHICH INDUCED DEFENDANT TO ACCEPT THE PLEA AGAINST HIS WISHES AND DESIRES AND IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. - 8 - IV. THE TRIAL COURT ERRED IN VIOLATION OF CRIM.R. 11 BY FAILING TO CONDUCT A MEANINGFUL COLLOQUY REGARDING DEFENDANT'S WAIVER OF HIS CONSTITUTIONAL RIGHTS. Initially, we note that defendant makes these arguments for the first time on appeal. The record and transcript of the proceedings indicates the defendant never made any request in the trial court to withdraw his guilty pleas either prior to or following sentencing in compliance with Crim. R. 32.1. Therefore, his failure to raise these arguments in the court below ordinarily precludes us from reviewing these issues on appeal. State v. Steward (March 3, 1994), Cuyahoga App. No. 64479, 64480, unreported; State v. Adams (March 3, 1994), Cuyahoga App. No. 64759, 64760, unreported; State v. Jackson (Nov. 10, 1993), Cuyahoga App. No. 62671, 62672, unreported. Notwithstanding these omissions, we find that defendant's guilty plea was entered pursuant to the requirements of Crim. R. 11(C) and was therefore voluntarily and knowingly given. The trial court when accepting a guilty plea must substantially comply with Crim R. 11. State v. Nero (1990), 56 Ohio St.3d 106, 108. Substantial compliance with Crim. R. 11(C) is determined upon a review of the totality of the circumstances. State v. Carter (1979), 60 Ohio St.2d 34, 38; State v. Rainey (1982), 3 Ohio App.3d 441, 442. There is no basis on the record before us showing that defendant did not enter his guilty plea knowingly and voluntarily. By pleading he reduced his potential sentence substantially. - 9 - Defendant argues that his plea was not knowingly and voluntarily made because the court did not explain the elements of the offenses to him. It is not necessary that the judge explain the elements of each of the offenses, or even ask the defendant specifically whether he understands each of the charges. In State v. Rainey (1982), 3 Ohio App.3d 441, 442 the court held as follows: In order for a trial court to determine that a defendant is making a plea with an understanding of the nature of the charge to which he is entering a plea, it is not necessary that the trial court advise the defendant of the elements of the crime, or to specifically ask the defendant if he understands the charge, so long as the totality of the circumstances are such that the trial court is warranted in making a determination that the defendant understands the charge. See, also State v. Swift (1993), 86 Ohio App.3d 407, 412; State v. Zeda (Oct. 13, 1994), Cuyahoga App. No. 66524, unreported; State v. Alamo (April 21, 1994), Cuyahoga App. No. 64096, unreported. The record herein shows, by the totality of the circumstances, that defendant did understand the nature of the charges against him. Defendant was advised of the charges repeatedly by the prosecutor, his own attorney and the court. At several points during the hearings, the court asked defendant whether he had any questions and whether he understood the proceedings. Each time defendant indicated that he understood and that he had no questions. Although there was some initial confusion as to what the plea agreement authorized, this was cleared up on the record through numerous explanations which defendant stated he understood. - 10 - We find that defendant was sufficiently advised in all the particulars and knowingly, willingly and voluntarily entered his guilty pleas pursuant to the proposed plea agreements both on the original case and on the subsequent five cases. In the second assignment of error, defendant argues that the court was required to make a determination whether defendant thought the plea was in his best interest. This is required only when an Alford plea has been entered. "Where a defendant interjects protestations of innocence into the plea proceedings, and fails to recant those protestations of innocence, the trial court must determine that the defendant has made a rational calculation to plead guilty notwithstanding his belief that he is innocent." State v. Padgett (1990), 67 Ohio App.3d 332, 338. In the case herein, before sentencing the court gave the defendant an opportunity to make a statement. In response, defendant readily admitted that he remembered breaking into a couple of houses. However, he denied beating any of the victims. The court expressed disbelief in defendant's denial of participation in the beatings and proceeded to sentence the defendant. Defendant never claimed innocence prior to the court's acceptance of his plea and never moved orally or in writing to withdraw his plea. In State v. Kandiko (Feb. 9, 1995), Cuyahoga App. No. 66888, 66889, unreported at 3, it was held under similar circumstances: Contrary to appellant's assertion, a careful review of the plea hearing transcript contains absolutely no claim of innocence by Kandiko prior to the acceptance of the guilty pleas. - 11 - Kandiko's protestations of innocence occurred later at the sentencing hearing, at which time he did not attempt to withdraw the previously accepted plea. Thus, appellant's reliance North Carolina v. Alford (1970), 400 U.S. 25 and State v. Casale (1986), 34 Ohio App.3d 399, which dealt with the acceptance of a guilty plea despite protestations of innocence is mistaken. See, also, State v. Ingram (June 2, 1994), Cuyahoga App. No. 66227, unreported. Therefore, since application of the Alford plea doctrine does not apply here, as defendant did not protest his innocence when he entered his plea, the court was under no obligation to insure defendant's plea was in his best interest. We find no support for Assignment of Error II either in the record or the law. In the third assignment of error, appellant contends that the court made coercive and threatening statements which induced him to accept the plea against his wishes. A review of the record of the September 4, 1991 and the July 7, 1993 hearings leads to no such conclusion. Defendant was asked whether any threats were made and he answered no. It was only at sentencing that he complained he had no such option given the judge's previous remarks. In the totality of the circumstances, the trial court went out of its way to outline defendant's choices in very simple and plain language. That the trial court realistically portrayed the defendant's choices is no reason to find coercion or threats. State v. Oden (Sept. 22, 1994), Cuyahoga App. No. 65680, unreported; State v. Saleem (Oct. 31, 1991), Cuyahoga App. No. 59237, 59238, unreported. - 12 - In the fourth assignment of error, defendant argues that the trial court did not engage him in a meaningful colloquy regarding the waiver of his constitutional rights when he pled to the five felonies as the court did not individually explain each right, but grouped them all together. While it is a better method to separately explain each constitutional right, this method is not mandatory. State v. Ballard (1981), 66 Ohio St.2d 473, 479. The focus of review is whether the trial court referred to the rights in a "reasonably intelligible manner." Id. We find the court adequately explained the constitutional rights defendant waived by entering his plea. An examination of the record as a whole reveals that the trial court substantially complied with Crim.R. 11 and defendant, who was represented by competent counsel throughout, made a knowing, voluntary and intelligent plea in the cases at issue. Assignments of Error I, II, III and IV are overruled. V. THIS COURT OF APPEALS WOULD VIOLATE DEFENDANT'S DUE PROCESS RIGHTS IF IT WERE TO DISMISS THIS CASE AS MOOT SIMPLY BECAUSE DEFENDANT EVENTUALLY RECEIVED A SUSPENDED SENTENCE. This assignment of error is moot and need not be considered. App.R. 12(A)(1)(c). Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for these appeals. 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. JOSEPH J. NAHRA, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES M. PORTER PRESIDING 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 .