COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69032 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MAURICE E. STOKES : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MARCH 7, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 286499 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES REGIS E. McGANN, ESQ. Cuyahoga County Prosecutor 1370 Ontario Street FEDELE DeSANTIS, Assistant Suite 450 Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Maurice E. Stokes appeals from his convictions for drug offenses to which he pled guilty after a plea bargain. Defendant claims the court erred in accepting the pleas since they were not knowingly made. We find no error and affirm the judgment below. On October 14, 1992, defendant was indicted on four counts arising out of his drug activities. In Count one, defendant was charged with a drug law violation under R.C. 2925.03(A)(2) with a furthermore clause alleging a prior conviction for drug trafficking. This charge was a felony of the second degree punishable by an indefinite term of incarceration of two, three, four or five years to a maximum of 15 years plus a mandatory fine of $10,000. Count two charged defendant with another drug law violation under R.C. 2925.11 with two furthermore clauses alleging prior convictions for drug trafficking and drug abuse. This charge was a felony of the third degree with a definite sentence of 12, 18 or 24 months and a mandatory fine of $2,500. Count three charged defendant with possessing criminal tools in violation of R.C. 2923.24, a felony of the fourth degree with a definite sentence. Count four charged defendant with escape in violation of R.C. 2921.34. Escape is a felony of the third degree with a definite sentence, which must be served consecutively to any other sentence - 3 - of confinement. On November 20, 1992, defendant was arraigned and entered not guilty pleas to all four counts. On February 2, 1993, pursuant to a plea bargain, defendant withdrew his not guilty pleas and pled guilty to amended Counts one and two. As part of the bargain, the State amended Count one to delete the furthermore clause on the prior drug trafficking conviction. The deletion reduced the offense to a felony of the third degree punishable by a definite term of incarceration of 12, 18, or 24 months and a mandatory fine of $5,000. The State also amended Count two to delete the furthermore clauses for prior drug convictions. Such deletions reduced the offense to a felony of the fourth degree punishable by a definite term of incarceration of six, 12 or 18 months and a mandatory $1,500 fine. The State agreed to dismiss Counts three and four. In exchange for the amendments and dismissals, defendant agreed to plead guilty to amended Counts one and two subject to an agreed three and one-half year sentence, two years on amended Count one to run consecutively to 18 months on amended Count two. Defendant understood that his sentence would run without possibility of shock probation. He also agreed to forfeit to the East Cleveland Police Law Enforcement Trust Fund $108 and a pager. On February 2, 1993, defendant was sentenced pursuant to the terms of the plea bargain. - 4 - On May 19, 1995, defendant filed a motion for leave to file a delayed appeal which this Court granted on June 14, 1995. This delayed appeal ensued. Defendant's sole assignment of error is set forth as follows: I. THE COURT ERRED IN ACCEPTING APPELLANT'S GUILTY PLEAS WHEN APPELLANT'S COMMENTS AT THE SENTENCING PORTION OF THE HEARING SHOWED THAT THE PLEA WAS NOT ENTERED KNOWINGLY. Upon a careful review of the hearing transcript, we find no basis for defendant's contention that his plea of guilty to the amended offenses was not knowingly, willingly and voluntarily made. Initially, we note that defendant makes his argument for the first time on appeal. The record and transcript of the proceedings below indicate that 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. A failure to assert an alleged error in the trial court waives that error on appeal. State v. Awan (1986), 22 Ohio St.3d 120, 122; State v. Williams (1977), 51 Ohio St.2d 112, 117. 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. - 5 - 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 entering into the plea bargain he reduced his potential sentence substantially. The prosecutor set forth the terms of the plea agreement in substantial detail. (Tr. 3-4). When asked by the court if he understood the statements made by the prosecutor the defendant affirmed that he did. (Tr. 5). The court proceeded to set forth the defendant's constitutional rights and obtained responses from defendant which demonstrated that defendant waived his rights pursuant to Crim. R. 11. When asked if he understood that by entering a plea of guilty he was giving up all the constitutional rights the court outlined for him and would be sentenced immediately, defendant responded "Yes." (Tr. 7). The court then set forth the terms of the plea bargain. (Tr. 8-9). When asked if he understood that part of the plea bargain was an agreed sentence of two years definite time on amended Count one to run consecutively to 18 months definite time on amended Count two, the defendant answered "Yes." (Tr. 9-11). Defendant also confirmed - 6 - that his pleas were made voluntarily, of his own free will. (Tr. 12). The record shows that defendant was well aware that he was going to serve jail time and that he was not eligible to receive probation: MR. DISANTIS: But I just wanted him to know there is no possibility of shock, super shock or shock, not even shock parole because he has been down to the penitentiary on a drug offense before. THE COURT: Sir, do you understand that as part of the plea bargain there is an agreed sentence here, which I will accept, and that agreement is you will be serving two years definite time on this count, to be run consecutive with the time that I will outline for you on the second count, which will be one and a half years? Do you understand that? MR. STOKES: Yes. The defendant had prior experience with criminal proceedings. He had previously been convicted on October 16, 1990 of trafficking in drugs (Case No. CR-252855) and drug abuse (Case No. CR-252325). He was sentenced to prison as a result of the prior pleas. Given his previous experience, it is unreasonable to expect that in the instant case he misunderstood the plain meaning of the words used by the court or the prosecutor and mistated his own responses to the court. The only episode on which defendant relies for his alleged misunderstanding does not support the argument. The colloquy contained at Tr. 13 contradicts the contention: - 7 - MR. STOKES: I just hope you don't hold that against me when I come to pretrial, 'cuz -- THE COURT: You didn't mean pretrial, did you? You will not be appearing again before me unless you pick up another case after you get out of prison. MR. STOKES: Okay. So, I just thank you. THE COURT: I want you to understand that. Do you understand that you are going to be doing three and a half years definite time. MR. STOKES: Yes. THE COURT: And you will not be back here for shock probation or for any other reason unless you pick up a new case? MR. STOKES: Yes. THE COURT: And my name happens to be drawn, do you understand that? MR. STOKES: Yes. THE COURT: Pardon? MR. STOKES: Yes. THE COURT: Any questions at all? MR. STOKES: No, ma'am. Defendant knew he was agreeing to a prison sentence of precise duration. This was also confirmed by further dialogue with the court. (Tr. 11-12): THE COURT: Okay. Again, I'm going to ask you, sir, do you understand what you have been charged with in count two as amended? MR. STOKES: Yes. THE COURT: Sir, this is a felony of the fourth degree, carrying with it a possible imprisonment term of six months definite - 8 - time or one year definite time or one and a half years definite time and a mandatory $1,500 fine. However, I can fine you up to and including $2,500. I can also impose court cost [sic] as a part of the plea agreement, you will be serving a definite sentence of one and a half years on this count consecutive to the two years on count one. Do you understand what the word consecutive means? MR. STOKES: Ran together. THE COURT: No, they'll not be run together, they're separate. You will serve your time, the two years and then after that, the year and a half. MR. STOKES: Okay. Yes. THE COURT: So you will serve a total of three and a half definite. Do you understand that? MR. STOKES: Yes. THE COURT: Any other questions of me? MR. STOKES: No, ma'am. Defendant's contentions on this delayed appeal are further rebutted by the fact mentioned earlier that he was in prison from February 3, 1993 to May 19, 1995, without filing a motion to withdraw his guilty plea with the trial court. Defendant's belated appeal to this Court is an attempt to avoid filing a formal motion to withdraw with the trial court. As we noted earlier, a motion to withdraw a guilty plea must be filed with the trial court that accepted the plea. After - 9 - sentencing, a motion to withdraw a guilty plea is within the sound discretion of the trial court. State v. Smith (1977), 49 Ohio St.2d 261; State v. Carabello (1985), 17 Ohio St.3d 66; State v. Blatnik (1984), 17 Ohio App.3d 201. Any undue delay between the alleged grounds for the withdrawal of a guilty plea and the motion to withdraw a guilty plea may be considered in denying such motion. State v. Smith, supra. In a post-sentence motion to withdraw a guilty plea, the defendant bears the burden of showing manifest injustice. State v. Smith, supra; State v. Carabello, supra. Appellate review of the trial court's decision is limited to a determination of whether the trial court abused its discretion. An abuse of discretion implies an unreasonable, arbitrary or unconscionable attitude on the part of the trial court. State v. Adams (1980), 62 Ohio St.2d 151, 157. We also note that defendant asserted different reasons in his delayed appeal papers than those set forth in his current brief and assignment of error. In the memorandum in support of his motion for delayed appeal, defendant asserted that the two amended counts to which he pled should have been merged for purposes of sentencing and that his Fifth Amendments rights were violated. The defendant, in correspondence to his counsel prior to the filing of his brief, instructed him that he did not wish to withdraw his guilty plea for fear that a greater sentence could be imposed at a new trial. Defendant stated that he preferred that his delayed appeal be based on alleged error in the trial court's sentencing. That contention - 10 - has now been abandoned. Instead, defendant contends now that he did not understand the plea dialogue, or that this plea was not knowingly, intelligently and voluntarily made. Defendant also argues now that the trial court should have inquired of defense counsel if he was satisfied that Crim. R. 11 had been complied with. There is no requirement under the law, statutory or otherwise, that the trial court ask counsel if Crim. R. 11 has been complied with. A properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301. Pursuant to this presumption is the understanding that attorneys who take criminal assignments are aware of Crim. R. 11 and the protection afforded to the defendants they are paid to represent. A review of the transcript does show that the court asked defense counsel if he had any questions regarding the plea. Defense counsel replied: "No, your Honor, other than the fact that the stipulated sentence we agree with all the facts. At this time, we're ready to proceed with sentence." It is clear from the transcript that the trial court took great pains in making sure that Crim. R. 11 had been complied with. "Substantial compliance" rather than "scrupulous adherence" is the test for reviewing guilty pleas under Crim. R. 11(C). State v. Flint (1986), 36 Ohio App.3d 4, 7. The defendant has failed to demonstrate manifest injustice. Indeed, we find that the requirements of Crim. R. 11 were strictly adhered to by the trial court. - 11 - Defendant's sole assignment of error is overruled. Defendant's appeal is denied. Judgment affirmed. - 12 - 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, P.J., and DYKE, J., CONCUR. JAMES M. PORTER 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 .