COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69295 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN WESTERFIELD, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-247869 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Carmen Marino Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Jonathan N. Garver 4403 St. Clair Avenue Cleveland, Ohio 44103 John Westerfield, Pro Se No. 220-877 Southern Ohio Correctional Facility P.O. Box 45699 Lucasville, Ohio 45699-0001 -3- NAHRA, J.: Appellant, John H. Westerfield is appealing his conviction for murder with a firearm specification, R.C. 2903.02, aggravated robbery, R.C. 2911.01, and felonious assault, R.C. 2903.11. He contends his guilty plea to these offenses was not knowing and voluntary. For the following reasons, we affirm. Appellant was charged with aggravated murder with a firearm specification; two counts of kidnapping with firearm specifications; two counts of felonious assault, one with a firearm specification; aggravated robbery; two counts of receiving stolen property and one count of escape. At the plea hearing, the judge stated the sentence for murder (count 1, as amended pursuant to the plea agreement) was fifteen years minimum to a maximum of life, plus an added three years actual time for the gun specification. The judge told appellant the sentence was mandatory and he had no discretion to give appellant probation. The court could impose a sentence for aggravated robbery (count 5) of five to ten years minimum to twenty-five years maximum, and a sentence for felonious assault (count 6) of three to eight years minimum to fifteen years maximum. The remaining counts would be nolled, pursuant to the plea agreement. The judge informed the defendant that these sentences could be imposed concurrently or consecutively, and explained the meaning of those terms. Appellant stated he understood the possible sentences. -4- The judge informed appellant of his constitutional rights, and appellant stated he understood he was waiving these rights. Appellant stated he understood the charges, and he pled guilty to count 1, as amended and counts 5 and 6. Appellant was sentenced on April 2, 1990 to fifteen to life, for the murder count, plus three years actual for the gun specification; seven years actual to twenty-five years for aggravated robbery; and five years actual to fifteen years for felonious assault. The sentences were to run concurrently. Appellant filed a motion for delayed appeal on July 17, 1995, which our court in its discretion granted. Appellant's sole assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, FAILED TO COMPLY WITH CRIM. R. 11, AND DENIED APPELLANT OF DUE PROCESS OF LAW UNDER THE OHIO CONSTITUTION AND THE UNITED STATES CONSTITUTION BY FAILING TO INFORM APPELLANT OF THE POSSIBILITY THAT THE MINIMUM TERMS OF INCARCERATION ON THE AGGRAVATED FELONY CHARGES COULD BE IMPOSED AS TERMS OF "ACTUAL INCARCERATION." There must be some showing of prejudicial effect before a guilty plea may be vacated. State v. Stewart (1977), 51 Ohio St. 2d 86, 93, State v. Johnson (1988), 40 Ohio St.3d 130, Crim.R. 52(A). In this case, the failure to inform appellant that the minimum terms of incarceration for the aggravated felonies could be imposed as actual incarceration did not prejudice appellant. The sentences for murder, aggravated robbery and felonious assault were imposed concurrently. Appellant was informed he would be sentenced to a non-probationable fifteen years minimum on the murder count plus three years actual incarceration for the gun specification. -5- Appellant would not be eligible for parole on the murder charge for ten and one-half years, R.C. 2967.13(A), (L), plus appellant had to serve three years actual incarceration consecutively for the gun specification. Appellant would not have been eligible for parole on the murder charge before the appellant had already served the five and seven year terms of actual incarceration for the aggravated felonies. The court's failure to inform appellant that the minimum terms for the aggravated felonies could be imposed as actual incarceration did not affect appellant's substantial rights and is not reversible error. Crim.R. 52(A). Accordingly, appellant's assignment of error is overruled. The decision of the trial court is affirmed. -6- 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. BLACKMON, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .