COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68971 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION PAUL McGOWAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION OCTOBER 3, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-318193 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES TIMOTHY R. STERKEL, ESQ. Cuyahoga County Prosecutor 4425 Mayfield Road RALPH KOLASINSKI, Assistant Cleveland, Ohio 44121 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 3 - JAMES M. PORTER, P.J., Defendant-appellant Paul McGowan appeals from the defendant's conviction following a guilty plea to crimes of attempted rape (R.C. 2923.02, 2907.02) and attempted felonious sexual penetration (R.C. 2923.02, 2907.12). Defendant contends that the trial court failed to comply with Crim.R. 11(C) before accepting his plea, abused its discretion in denying defendant's pro se motion to withdraw his guilty plea and he was deprived of his constitutional right to effective assistance of counsel. We find no error and affirm for the reasons stated below. On December 28, 1994, defendant was indicted on two counts of rape and felonious sexual penetration of his six-year-old daughter. The second count had attached a violence specification for a prior conviction for carrying a concealed weapon. Defendant was arraigned on January 3, 1995, pled not guilty and, because of indigency, was assigned attorney Granville Bradley as his counsel. Defense counsel filed motions for discovery and a bill of particulars on January 17, 1995, to which the State responded on January 30, February 13, 15, 23, 1995. The State presented defendant with the Evid.R. 807 statement of his six-year-old daughter recounting the alleged sexual attacks. Evid.R. 807 provides for the admission of a child victim's out of court statements when such statements describe a sexual act performed by, with, or on the child. - 4 - On March 6, 1995, pursuant to a plea agreement with the State reducing the offenses, the defendant pled guilty to one count of attempted rape and one count of attempted felonious sexual penetration, probationable offenses as amended, rather than facing potential terms of life imprisonment under the original charges. On March 6, 1995, the prosecutor placed upon the record his understanding of the plea, to-wit: a withdrawal of a "not guilty" plea to rape and felonious sexual penetration in lieu of a "guilty plea" to attempted rape and attempted felonious sexual penetration, aggravated felonies of the second degree. Although the amended offenses were probationable, each carried with it a potential term of incarceration of 3, 4, 5, 6, 7, 8 to 15 years in jail, and a fine of up to $7,500. (Tr. 4). No other promises or threats were made by the State in order to induce the plea. (Tr. 5). The defendant personally answered in the affirmative that he understood the prosecutor and his attorney (Tr. 5), and after the judge's recitation of his constitutional rights, which he was waiving by pleading, indicated that the discussion of his rights was "clear" to him. (Tr. 7). He then entered guilty pleas "with an explanation" to the two amended counts of the indictment, after which time the trial court made no promises to the defendant with respect to the defendant's potential sentence. The defendant agreed that his pleas were "completely free, voluntary, and of his own free will"; agreed that his attorney did not force him to plead guilty; and expressed his satisfaction with defense counsel; and, - 5 - although the court was willing to listen to the defendant's "explanation" at that point in the proceedings, the defendant, on the advice of his counsel, decided to wait and "come back and make it" at a later date. (Tr. 8-11). When asked by the court, "Is this your decision?" defendant answered "No Sir." (Tr. 11). Further inquiry was not made as to whose decision it was for him to plead guilty to the two amended counts of this indictment. Sentencing was scheduled for April 6, 1995 at 9:30 a.m., and the defendant was directed to the probation department for a presentence investigation report. (Tr. 12). On March 14, 1995, prior to his sentencing, defendant filed a pro se motion to withdraw his guilty plea. Defendant alleged in this motion that he was not guilty of the offense charged and that his plea was entered "without good advice of counsel and without a complete understanding of the nature of the charge, the effect of the plea, or his rights in the proceedings." On March 20, 1995, the State filed a brief in opposition to defendant's pro se motion. Defendant's assigned counsel (Mr. Bradley) apparently was not privy to defendant's desire to withdraw his plea. The issue was raised at the scheduled April 6, 1995 sentencing. Defense counsel Bradley informed the court that he could no longer represent the defendant as he believed the original plea was "given knowingly, intelligently and voluntarily." Mr. Bradley was allowed to withdraw and the court assigned Mr. Edward - 6 - Corrigan to represent defendant. A recess was had and the court heard argument on defendant's motion to withdraw his plea. The defendant was sworn in to be examined and maintained that "I'm not guilty on them [the charges]"; that his first defense attorney told him the plea "was a good deal"; and acknowledged that he pled "guilty" to the amended indictment to avoid the risk of two life sentences. Defendant was also optimistic of his chances of receiving probation in lieu of jail time. Under cross-examination by the prosecutor, the defendant affirmed being in the courtroom on March 6, 1995 and entering his guilty pleas to the two count amended indictment; that he knew the original charges carried life sentences while the amended charges were probationable; he further indicated his own understanding of "supershock"; that he pled to charges that, although probationable, carried with them 3 to 8 to 15 years in jail, rather than "life"; that he pled to a "good deal" and that he "understood his constitutional rights" that he waived on March 6, 1995. (Tr. 11- 12). The matter was continued to April 13 to allow original defense counsel Bradley to attend and give testimony as the court's witness. Mr. Bradley testified that he had numerous conferences with the prosecutor, his client, and the "prosecutor's superior;" that the negotiated plea reduced the charges down from two life sentences to the two amended offenses, which were eligible for shock probation; that "the court had complied with Rule 11"; that - 7 - "the plea was entered knowingly, intelligently and voluntarily"; that the court "went through all the provisions and requirements of Rule 11"; that when his client "entered the plea, I think you understood, because I explained to you in detail, I have talked to you probably more than any defendant I have had"; that "*** you entered this plea cause you didn't want to expose yourself to two life sentences"; "you called me up on the phone and told me you wanted to withdraw your plea (of not guilty). That's exactly what you told me, sir." (Tr. 4-12). Later, the defendant stated, "What he said, it was probationable, it was better, the possibility that way, than going to trial." (Tr. 14). At the conclusion of the hearing on April 13, 1995, the trial court denied the motion to withdraw the guilty pleas, sentenced the defendant to eight to fifteen years under each count, the sentences to run consecutively. We will address the defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRORED [SIC] IN ACCEPTING APPELLANT'S GUILTY PLEA WHEN THE COURT FAILED TO HOLD THE REQUIRED DIALOGUE WITH APPELLANT AND ACCEPTED HIS INVOLUNTARY GUILTY PLEA CONTRARY TO OHIO RULE OF CRIMINAL PROCEDURE 11(C). Defendant argues that the trial court did not comply with Crim.R. 11(C) in accepting defendant's guilty plea in that the court did not conduct the required dialogue with the defendant and - 8 - that his plea was involuntarily based solely upon one response by defendant. We find no merit to this contention. Crim.R. 11(C)(2)(a), (b) and (c) states: (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 trial court recited these rights in narrative fashion and expressly elicited defendant's response that he understood he was giving up these rights by entering a guilty plea. (Tr. 4-7). Defendant relies upon State v. Ballard (1981), 66 Ohio St.2d 473 for the proposition that the trial court should use the language of Crim.R. 11(C), in a question and answer dialogue, stopping after each right and asking whether defendant understood the right he was waiving by pleading guilty. The Supreme Court in Ballard stated: - 9 - We hold that a guilty plea is constitutionally infirm when the defendant is not informed in a reasonable manner at the time of entering his guilty plea of his rights to a trial by jury and to confront his accusers, and his privilege against self-incrimination, and his right to compulsory process for obtaining witnesses in his behalf. *** * * * *** it is important to emphasize that the interest of finality is to be protected when accepting a guilty plea. With that interest in mind, the best method of informing a defendant of his constitutional rights is to use the language contained in Crim.R. 11(C), stopping after each right and asking the defendant whether he understands the right and knows that he is waiving it by pleading guilty. We strongly recommend such procedure to our trial courts. However, failure to so proceed will not necessarily invalidate a plea. The underlying purpose from the defendant's perspective, of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty. Accordingly, the basis of Crim. R 11 is to assure that the defendant is informed, and thus enable the judge to determine that the defendant understands that his plea waives his constitutional right to a trial. *** * * * Therefore, we hold that a rote recitation of Crim.R. 11(C) is not required, and failure to use the exact language of the rule is not fatal to the plea. Rather, the focus, upon review, is whether the record shows that the trial court explained or referred to the right in a manner reasonably intelligible to that defendant. To hold otherwise would be to elevate formalistic litany of constitutional rights over the substance of the dialogue - 10 - between the trial court and the accused. This is something we are unwilling to do. *** * * * Additionally, here the record shows that the trial court in every other respect carried out the mandates of Crim.R. 11(C), both as to the constitutional rights contained in such rule and the non-constitutional rights. Although the trial court may not relieve itself of the requirements of Crim.R. 11(C) by exacting comments or answers by defense counsel as to the defendant's knowledge of his rights, such a colloquy may be looked to in the totality of the matter. Ballard, supra at 478-481. Although the trial court did not conduct the "recommended" dialogue as suggested by the Court in Ballard, the trial court did in fact determine that the defendant was "informed," "understood," and made his plea "knowingly, voluntarily and intelligently." 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, 42. The underlying purpose of Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty. State v. Ballard (1981), 66 Ohio St.2d 473, 479. If the defendant receives the proper information, it then can be assumed he understands that information. State v. Carter, supra at 38. - 11 - Under the totality of the circumstances, the trial court "explained or referred to the right(s) in a manner reasonably intelligible to that defendant." Ballard, supra at 480. That the court did not do so in a question and answer format with respect to each right is no reason to hold otherwise. State v. Sabatino (1995), 102 Ohio App.3d 483, 486; State v. Santiago (May 4, 1995), Cuyahoga App. No. 67053, unreported; State v. White (Oct. 6, 1994), Cuyahoga App. No. 66611, unreported. Assignment of Error I is overruled. II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S PRE-SENTENCE, WRITTEN MOTION TO WITHDRAW HIS GUILTY PLEA. Crim.R. 32.1 states: Withdrawal of guilty plea. A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction to permit the defendant to withdraw his plea. Pursuant to the application of Crim.R. 32.1, a motion to withdraw a plea of guilty, which is filed prior to sentencing, should be freely granted. State v. Peterseim (1980), 68 Ohio App.2d 211. The mere filing of a motion to withdraw a plea of guilty, however, does not automatically require that the court grant the motion. State v. Posta (1988), 37 Ohio App.3d 144, 145; State v. Stephens (June 10, 1993), Cuyahoga App. No. 62554, unreported. - 12 - The standard of appellate review of the trial court's decision is limited to a determination of whether the trial court abused its discretion. State v. Xie (1992), 62 Ohio St.3d 521, paragraph two of syllabus 2; see, also, State v. Peterseim (1980), 68 Ohio St.2d 211; State v. Posta (1987), 37 Ohio App.3d 144. Unless it is shown that the trial court's decision was unreasonable, arbitrary or unconscionable, there is no abuse of discretion. State v. Xie, supra, at 527; State v. Montgomery (1991), 61 Ohio St.3d 410, 413. A review of the facts in this case indicate that the defendant filed his motion pro se; that he pled to two probationable offenses (attempted rape and attempted sexual imposition) rather than go to trial on two indictments on the primary charges each of which carried life sentences; that he had the burden to establish that his pro se motion should be granted; that the trial court conducted a lengthy review of Crim.R. 11 at the time of the original plea; and that the court gave defendant the opportunity to cross-examine his original attorney as to the "voluntariness" of his plea. The testimony of his counsel made clear the defendant voluntarily entered his plea to avoid the risk of lifetime imprisonment. Defendant's protestations of innocence are not sufficient, however frequently repeated, to warrant grounds for vacating a plea knowingly entered. State v. Kandiko (Feb. 9, 1995), Cuyahoga App. No. 66888, unreported; State v. Frank (April 29, 1993), Cuyahoga App. No. 62201, unreported. By inference, all defendants who request a withdrawal of their guilty plea do so based upon some - 13 - claim of innocence. A mere change of heart regarding a guilty plea and the possible sentence is insufficient justification for the withdrawal of a guilty plea. State v. Drake (1991), 73 Ohio App.3d 640, 645; State v. Lambros (1988), 44 Ohio App.3d 102, 103. The record below contains no protestation of innocence by the defendant at the time he gave his guilty plea. Defendant did not claim innocence, but stated that he "pled guilty with an explanation." Defendant did not develop his claims of innocence until he was incarcerated prior to sentencing. From the facts of this case, it appears that defendant's claim of innocence reflects a change of heart strategy. The defendant testified "I just didn't do it your honor. I can't prove myself innocent but I don't think they can prove me guilty." We find no abuse of discretion in the trial court's denial of the motion to withdraw the plea. Assignment of Error II is overruled. III. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND IN ESSENCE HAD NO ASSISTANCE OF COUNSEL. Defendant contends that he was deprived of his constitutional right to effective assistance of counsel at the hearing on his motion to withdraw the plea because his newly appointed counsel failed to cross-examine a witness (even though defendant did) and that he failed to elicit testimony from defendant although defendant testified on April 6, 1995 and by way of statements, professing his innocence to the court, on April 13, 1995. There - 14 - was nothing to be added by new counsel to elicit, either from Mr. Bradley or defendant. A review of the transcript of the April 13, 1995 hearing reveals that Mr. Bradley was also questioned by the prosecutor and the court. To prevail on a claim of ineffective assistance of counsel, defendant must first show counsel's performance was deficient and must then show there is a reasonable probability that, but for counsel's errors, the outcome of the hearing would have been different. State v. Bradley (1989), 42 Ohio St.3d 136; see, also, State v. Xie, supra; Strickland v. Washington (1984), 466 U.S. 668. Defendant cannot meet his burden, however, by making bare allegations which find no support in the record. State v. Smith (1985), 17 Ohio St.3d 98; State v. Melton (Mar. 18, 1993), Cuyahoga App. No. 62074, unreported; State v. Adams (Mar. 3, 1994), Cuyahoga App. Nos. 64759 and 64760, unreported. Defendant has failed to meet his burden of showing ineffective assistance of counsel. He had a full discussion with the trial court on April 6, 1995 and April 13, 1995 (Tr. 6-9); filed a pro se motion wherein he was given the opportunity to cross-examine his original attorney to no avail and to make additional statements to the court. Simply professing: "I want to withdraw my plea because I'm innocent," did not place any additional burden upon his new counsel. Counsel's failure to attempt to elicit any additional - 15 - testimony from defendant or the original counsel did not prejudice defendant and would not have changed the outcome of the hearing. Assignment of Error III is overruled. Judgment affirmed. - 16 - 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. O'DONNELL, J., and PATTON, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .