COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69280 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION EVERETT B. MASON : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 9, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-317461 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. NICHOLAS K. THOMAS, ESQ. Cuyahoga County Prosecutor 21801 Lakeshore Boulevard Euclid, Ohio 44123 JOHN F. MANLEY, ESQ. Assistant County Prosecutor Everett B. Mason, pro se The Justice Center No. 303-105 1200 Ontario Street Marion Corr. Inst. Cleveland, Ohio 44113 P.O. Box 57 Marion Ohio 43301-0057 - 2 - KARPINSKI, J.: Defendant-appellant Everett Mason appeals from his guilty plea convictions on two counts of felonious assault with an accompanying firearm specification. Defendant was indicted December 19, 1994, on two counts of felonious assault with a firearm and accompanying firearm and violence specifications. One of the two counts of felonious assault contained a peace officer specification because defendant allegedly shot at a police officer. Defendant was appointed counsel and pleaded not guilty to the charges. On the date scheduled for trial, defendant entered guilty pleas pursuant to a plea bargain. The transcript of the February 23, 1995, guilty plea hearing reveals that, in return for the guilty pleas, the prosecution agreed to delete the peace officer and violence specification from the first charge and the firearm specification from the second charge. After the prosecution described the terms of the proposed plea, defense counsel stated that defendant fully understood his constitutional rights. In compliance with Crim.R. 11(C), the trial court thereafter fully informed defendant of his constitutional rights prior to accepting his guilty pleas. At the conclusion of the hearing, the trial court referred the matter to the probation department for a presentence report and specifically instructed defendant "to be completely honest, accurate and cooperative in all respects." - 3 - The matter proceeded to a sentencing hearing on March 14, 1995. Following statements by defendant and his counsel, the trial court questioned defendant concerning statements in the presentence report. Defendant told the probation officer who prepared the report that he did not attempt to shoot the peace officer and that the peace officer shot at him. Defendant maintained his innocence of this charge and stated that he "just pled guilty to the crime that was inflicted on" him. The trial court concluded that defendant did not tell the truth to the probation officer or the court and used this conclusion as a factor in its sentencing. The trial court sentenced defendant to three years actual incarceration on the firearm specification, followed by consecutive indefinite terms of four to fifteen years and three to fifteen years on the felonious assault convictions. Defendant, represented by newly appointed appellate counsel, timely appeals raising two assignments of error. In an "amended brief" defendant pro se has additionally raised one related argument. I. Defendant's first assignment of error follows: THE TRIAL COURT ERRED BY NOT FULLY EXPLAINING THE DEFENDANT'S FIFTH AMENDMENT RIGHT AND THE RAMIFICATIONS OF A WAIVER OF THAT RIGHT. This assignment of error lacks merit. Defendant contends the trial court did not adequately inform him that by entering his guilty plea he waived his right against self-incrimination. Defendant complains that he was not advised - 4 - that statements made by him after his guilty plea could be used against him. The record shows, however, as noted above, the trial court fully explained defendant's constitutional rights in compliance with Crim.R. 11(C). State v. Ballard (1981), 66 Ohio St.2d 473. The trial court engaged defendant in a lengthy colloquy concerning whether he understood his rights, including the following: THE COURT: You have the right to require the State of Ohio to prove you guilty by evidence beyond a reasonable doubt at a trial at which you could not be forced to testify against yourself? THE DEFENDANT: Yes. THE COURT: Do you understand, sir, that a plea of guilty is a complete admission of your guilt and by entering such a plea you are waiving all these rights? THE DEFENDANT: Yes. (Tr. 8.) The trial court thereafter accepted defendant's guilty pleas and found defendant made them knowingly, voluntarily, and intelligently. The trial court subsequently informed defendant that it was referring the matter, at the request of his counsel, for a presentence report. The following conversation occurred at the close of the hearing: THE COURT: You will be interviewed by the probation department. It is up to you to be completely honest, accurate and cooper- ative in all respects. Any failure on your part will result in this Court imposing the maximum terms of incarcera- - 5 - tion allowed by law. Do you understand that? THE DEFENDANT: Yes, I do, your Honor. (Tr. 13-14.) The excerpts from the transcript unambiguously demonstrate that the trial court instructed defendant prior to his guilty plea that he had a right not to testify against himself and that this right would be waived by pleading guilty. The trial court also specifically instructed defendant that it would consider during sentencing whether defendant told the truth to the probation officer who interviewed him for the presentence report. Defendant had already been found guilty and, therefore, could not subsequently "incriminate" himself when he made statements during his sentencing hearing. Defendant's claims are belied by the record. Accordingly, defendant's first assignment of error is overruled. II. Defendant's second assignment of error follows: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR SENTENCING HEARING AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND OF SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. This assignment of error lacks merit. Defendant contends he received ineffective assistance of trial counsel during the sentencing hearing because counsel did not object when the trial court questioned defendant and did not present testimony from the peace officer to establish that - 6 - defendant's version of the incident was correct. Defendant pro se further claims that he received ineffective assistance of counsel because defenses existed that were not presented, the evidence to support his convictions was insufficient, and his counsel improperly advised him to plead guilty. To establish ineffective assistance of counsel in the context of a guilty plea, defendant must show: (1) counsel's performance was deficient, and (2) there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty. State v. Xie (1992), 62 Ohio St.2d 521, 524. In the case at bar, defendant has failed to establish either element of deficient performance or prejudice. As noted by the trial court, defense counsel negotiated a favorable plea bargain which resulted in the dismissal of firearm, peace officer, and violence specifications in this case. Defendant has cited no authority that standards of effective performance during a sentencing hearing require trial counsel either to object to the trial court's questioning of defendant or to present testimony. If defense counsel adopts the strategy of raising objections during the court's colloquoy with defendant, the trial court may probe more deeply, rather than abandon its questioning. Even in capital cases when sentencing hearings are substantially more extensive, counsel is not required to present witnesses. Moreover, presentation of testimony from the peace officer who was one of the victims would not have mitigated defendant's sentence. The reason the trial court enhanced - 7 - defendant's punishment was that defendant himself told two different versions of the incident. No testimony by the peace officer would have changed this fact. Finally, the trial court did not impose the maximum sentences on defendant as it warned it would if defendant lied to the probation officer. The maximum sentence could have been consecutive sentences of eight to fifteen years on each conviction. The trial court, however, imposed only consecutive terms of four to fifteen years and three to fifteen years, respectively. The arguments presented by defendant pro se suffer from a similar defect. Guilty pleas constitute a complete admission of factual and substantive guilt. State v. Barnett (1991), 73 Ohio App.3d 244, 248. Therefore, whether any defenses exist or whether the evidence is sufficient to support the charge are not issues any longer. Finally, absolutely nothing in the record supports defendant's contention that trial counsel improperly advised him to plead guilty, nor does defendant offer any support for this claim. Accordingly, defendant's second assignment of error and pro se argument are overruled. Judgment 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. O'DONNELL, P.J., and PATTON, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .