COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69336 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION SEAN BINION : : Defendant-appellant : : DATE OF ANNOUNCEMENT : APRIL 18, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-314306 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue JOHN V. HOFFER, ESQ. Cleveland, OH 44103 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. Appellant-defendant Sean Binion ("defendant") appeals his four pleas of guilty entered respectively for two counts of felonious assault, in violation of R.C. 2903.11; one count of receiving stolen property, in violation of 2913.51; and one count of drug abuse, in violation of 2925.11. Defendant originally pled not guilty to the charges. However, after conferring with his attorney and agreeing to a plea arrangement with the prosecutor, defendant pled guilty to all four counts. He was then sentenced to the Lorain Correctional Institute for a term of seventeen to thirty years. Defendant's sole assignment of error states: THE TRIAL COURT DENIED THE APPELLANT DUE PROCESS, COMMITTED PLAIN ERROR AND VIOLATED CRIMINAL RULE 11(C)(2)(c) WHEN IT FAILED TO EXPLAIN TO THE APPELLANT THAT THE STATE WAS REQUIRED TO PROVE HIS GUILT BY PROOF BEYOND A REASONABLE DOUBT. Defendant argues, pursuant to Crim.R. 11, the court had the duty to explain to him that the state had the burden of proving his guilt beyond a reasonable doubt. He also contends the court committed plain error by failing to explain the state's burden of proof. Crim. R. 11(C) governs a trial court's acceptance of guilty pleas and provides in part: * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no con- - 3 - test, and shall not accept such plea without first addressing the defendant personally and: * * * (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. In State v. Stewart (1977), 51 Ohio St.2d 86, the Ohio Supreme Court promulgated clear rules on when there has been compliance with Crim.R. 11(C)(2), as well as when a criminal defendant has been properly informed regarding the charges against him. In Stewart, the Court held that the provisions of Crim.R. 11(C) were met as long as there was substantial compliance with the provisions, and the omission did not constitute prejudicial error. Id., at syllabus. Therefore, even though strict compliance with the mandates of Crim.R. 11(C) is preferred, the fact that the trial court does not do so does not require the vacation of a defendant's guilty plea if the reviewing court determines that there was substantial compliance. The Ohio Supreme Court sets forth the test for substantial compliance in State v. Nero (1990), 56 Ohio St. 3d 106, 108: "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. - 4 - Here, the parties agree the defendant was properly informed of all but one of the rights he was waiving, the one omission being the state's burden of proof at a criminal trial. In State v. Hines (May 23, 1995), Franklin App. No. 94APA10- 1428 and in State v. McDowell (September 30, 1993), Erie App. No. E-92-78, the omission of advising the defendant that the state must prove the offense beyond a reasonable doubt was held to be error. However, neither court reversed the lower court's decision because they both held the lower courts substantially complied with Crim.R. 11 and the claimed error was not prejudicial. In the instant case, the record revealed the following: the trial court explained every offense and every coinciding penalty; the trial court explained every right the defendant was waiving by pleading guilty; the trial court maintained a continuous dialogue with the defendant making sure the defendant comprehended all that was taking place; the defendant had two experienced attorneys; and the defendant admitted his guilt to each specific offense at the conclusion of the trial court proceedings. Therefore, we find the trial court substantially complied with Crim.R. 11 and that under the totality of the circumstances the defendant subjectively understood the implications of his plea and his waiver of rights. Moreover, there is nothing in the record which indicates the plea would not have been otherwise entered; - 5 - thus, the failure to inform of the state's burden of proof was not prejudicial to the defendant. Accordingly, defendant's sole assignment of error is overruled. - 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 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. BLACKMON, P.J. O'DONNELL, J. CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .