COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68640 STATE OF OHIO : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : MICHAEL COOK : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 6, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-308114. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Ronald James, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Robert M. Ingersoll, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Michael Cook, defendant-appellant, appeals from his guilty plea and conviction in the Cuyahoga County Court of Common Pleas for the offenses of felonious assault and burglary. Defendant-appellant assigns one error for this court's review. Michael Cook's, defendant-appellant's, appeal is not well taken. I. THE FACTS On April 25, 1994, the Cuyahoga County Grand Jury returned a three-count indictment against Michael Cook, defendant-appellant. Count one charged defendant-appellant with aggravated burglary in violation of R.C. 2911.11. Count two charged defendant-appellant with felonious assault in violation of R.C. 2903.11. Count three charged defendant-appellant with vandalism in violation of R.C. 2902.05. Counts one and two contained violence specifications. On May 9, 1994, Michael Cook, defendant-appellant, was arraigned whereupon a plea of not guilty was entered to the indictment. On June 30, 1994, Michael Cook, defendant-appellant, entered into a plea agreement whereby defendant-appellant entered a plea of guilty to an amended count one, burglary, in violation of R.C. 2911.12, an aggravated felony of the second degree. Defendant- appellant also entered a plea of guilty to count two, felonious assault, as indicted. The third count of the indictment was nolled. During the plea hearing, the trial court conducted an on the record dialogue with Michael Cook, defendant-appellant. The trial court explained defendant-appellant's constitutional rights, the -3- possible prison sentence and maximum fines involved and ensured that defendant-appellant had not been threatened or promised anything in return for his plea of guilty in this case. The trial court then asked defendant-appellant to state, in his own words, what the charges against him were. Defendant-appellant responded "felonious assault and aggravated, I mean, burglary, sir." In addition, the trial court questioned Michael Cook, defendant- appellant, regarding the location of the incident, the time the incident occurred and the identity of the victim. On July 21, 1994, the trial court sentenced Michael Cook, defendant-appellant, to concurrent seven to fifteen year terms of incarceration on counts one and two. On March 6, 1995, Michael Cook, defendant-appellant, filed a motion for a delayed appeal and appointment of counsel. On November 11, 1995, this court granted defendant-appellant's motion and the instant appeal now follows. II. ASSIGNMENT OF ERROR Michael Cook's, defendant-appellant's, sole assignment of error states: MICHAEL COOK'S GUILTY PLEA WAS NOT KNOWINGLY ENTERED, BECAUSE THE TRIAL COURT FAILED TO ASCERTAIN THAT HE KNEW THE NATURE AND CIRCUMSTANCES OF THE CRIMES WITH WHICH HE HAD BEEN CHARGED. A. THE ISSUE RAISED: CRIM.R. 11. Defendant-appellant argues, through his sole assignment of error, that the trial court failed to comply with the requirements of Crim.R. 11 in accepting the plea of guilty to the -4- amended indictment. Specifically, defendant-appellant maintains that the trial court failed to ensure that defendant-appellant understood the nature and circumstances of the offenses to which he pleaded guilty. Defendant-appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW. Crim.R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: (1) Where in a felony case 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. (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 -5- he cannot be compelled to testify against himself. In order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty. Adherence to the provisions of Crim.R. 11(C)(1) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or no contest. (Emphasis added.) State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, at 92. Literal compliance with Crim.R. 11 is the preferred practice. However, the fact that the trial court 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. State v. Nero (1990), 56 Ohio St.3d 106. In Nero, the Ohio Supreme Court stated: Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, -6- 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 5676, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. at 108. C. THE TRIAL COURT SUBSTANTIALLY COMPLIED WITH CRIM.R. 11 MANDATES IN ACCEPTING THE GUILTY PLEA. In the case sub judice, a review of defendant-appellant's guilty plea to the offenses of felonious assault and burglary demonstrates the following: 1) defendant-appellant knowingly and voluntarily withdrew his original plea of not guilty; 2) defendant-appellant was advised of the maximum term of incarceration that could be imposed by the trial court with regard to the offenses of felonious assault and burglary; 3) defendant-appellant acknowledged that no threats or promises had been in exchange for his plea of guilty; 4) defendant-appellant acknowledged his right to a trial by jury or judge, the right to confront all witnesses against him, the right to subpoena witnesses on his behalf, the right to refuse to testify and the right to proof of guilt beyond a reasonable doubt; and 5) defendant-appellant acknowledged that he fully understood the nature of the plea he was entering, the effect of the -7- plea and that he was entering the plea of his own free will. A complete examination of the record fails to support defendant-appellant's assertion that he did not knowingly enter into the plea agreement in question. Not only did the trial court thoroughly explain all defendant-appellant's constitutional rights in accordance with Crim.R. 11 but the trial court also inquired as to whether defendant-appellant knew the specific offenses to which he was entering a guilty plea, the factual circumstances behind each offense as well as the identity of the victim. In addition, defense counsel stated on the record that all evidence the state would produce at trial and all possible defenses to the charges had been thoroughly discussed with defendant-appellant and he was totally aware of the plea that was to be entered. At no time during the proceedings did defendant- appellant express confusion or any lack of understanding regarding the nature of the plea or the underlying offenses. State v. Elliott (1993), 86 Ohio App.3d 772, 796. Accordingly, it is clear from the record that, under the totality of the circumstances, defendant-appellant understood the nature of the offenses as well as all of the implications of a guilty plea and its constitutional effect. The trial court complied with Crim.R. 11(C) in accepting defendant-appellant's plea of guilty to the amended charges. Defendant-appellants sole assignment of error is not well taken. Judgment of the trial court is 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 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. PORTER, J. and PATTON, J., CONCUR. DAVID T. MATIA 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 .