COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69380 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION JEFFREY J. DAVIDSON : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 15, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Common Pleas Court No. CR-311470 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES JOHN P. PARKER Cuyahoga County Prosecutor 4403 St. Clair Ave. MARK J. MAHONEY, Assistant Cleveland, Ohio 44103 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: On August 4, 1995, we granted Jeffrey J. Davidson leave to file a delayed appeal from a sentence of six actual to fifteen years incarceration following his plea to the charge of Felonious Assault. Appellant argues the conviction should be reversed and the sentence vacated because the trial court failed to inform appellant that it could impose a period of actual incarceration and thereby violated Crim. R. 11. The record in the case before us reveals the Cuyahoga County Grand Jury indicted Davidson for the crimes of Aggravated Robbery and Felonious Assault of William Cottrill which occurred on August 21, 1993. These indictments each contained prior aggravated felony specifications referencing appellant's two prior convictions for Robbery in 1984 and in 1986. As indicted, the statutory penalties mandated a minimum term of actual incarceration of 10, 11, 12, 13, 14, or 15 to 25 years for the Aggravated Robbery, and a minimum term of actual incarceration of 8, 9, 10, 11, or 12 to 15 years for the Felonious Assault. As a result of the plea negotiations conducted in this case, appellant plead guilty to the crime of Felonious Assault, without the prior aggravated felony specifications, and the State nolled the charge of Aggravated Robbery. At the time of the plea, the court addressed the appellant personally and informed him of his constitutional rights and the maximum penalty involved: - 3 - THE COURT: * * * Mr. Davidson, you are charged with aggravated robbery with specifications, felonious assault with specifications. At the time of your arraignment, you pled not guilty. It is my understanding at least that you are going to withdraw your formerly entered plea of not guilty and plead guilty to felonious assault without the specifications reflected in Count 2, calling for a possible sentence of 3, 4, 5, 6, 7, 8, up to 15 years, a fine of $7,500 or a combination of both. In return for that, Count 1 will be dismissed. In addition to that, you would be referred for a presentence investigative report and you will come back in for sentencing on September 16 at 9 o'clock in the morning. Has all of that been explained to you? THE DEFENDANT: Yes. (Tr.3) * * * And at pp. 7-8 in the transcript, the following appears: THE COURT: * * * I don't know what the sentence is going to be. I might sentence you to jail for 3, 4, 5, 6, 7 or 8 years. I might sentence you, if I do sentence you to prison, up to 15 years. I could put you on probation I suppose. I don't know that this nonprobationable as pled to. MR. MILANO: It is probationable as pled to, Your Honor. * * * THE COURT: * * * I've not made any comment to anyone as to what the sentence will be. Has anyone specifically promised what the sentence will be, in fact, in return for your plea? THE DEFENDANT: No one has promised nothing, Your Honor. - 4 - THE COURT: Do you have any questions of me? THE DEFENDANT: No, sir. (Tr. 7-8.) Following the appellant's plea, the court referred the matter to the probation department for the preparation of a presentence investigation report. At the sentencing hearing, the court imposed a sentence of six actual to fifteen years incarceration. Appellant now files this delayed appeal alleging the trial court failed to comply with Crim. R. 11 in accepting the guilty plea and has assigned the following error for our review: THE APPELLANT'S PLEA OF GUILTY WAS NOT A KNOWLEDGEABLE PLEA WHEN THE TRIAL COURT FAILED TO INFORM THE APPELLANT THAT THE POSSIBLE PENALTY INCLUDED A TERM OF ACTUAL INCARCERATION AND A PERIOD OF ACTUAL INCARCERATION WAS IMPOSED BY THE COURT. THUS THE APPELLANT DID NOT UNDERSTAND THE EFFECT OF HIS PLEA AND THE COURT VIOLATED CRIM.R. 11 AND DENIED THE APPELLANT DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS. Davidson contends that prior to accepting the plea, the court failed to inform him about the possibility of a term of actual incarceration and, therefore, he did not understand the effect of his guilty plea. This contention is not well taken. Crim R.11 states in relevant part: "(C) Pleas of guilty and no contest in felony cases. * * * "(2) In felony cases the court may refuse to accept a guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: - 5 - "(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 sentencing. * * *." In State v. Stewart (1977), 51 Ohio St.2d 86, the court there considered a Crim. R. 11 challenge where the appellant alleged the trial court failed to advise him that in pleading guilty to murder, he would not be eligible for probation. The court stated at 93: The trial court substantially complied with the requirements in Crim. R. 11, and the failure to personally advise appellant that in entering a plea of guilty to murder he would not be eligible for probation does not rise to the status of prejudicial error. This substantial compliance standard has been followed by our court in State v. Flint (1986), 36 Ohio App.3d 4, where the headnotes read: 2. Substantial compliance with Crim. R.11(C) is required when accepting a plea of guilty from a defendant. 3. Substantial compliance with Crim. R.11(C) is determined upon a review of the totality of the circumstances to determine that no prejudice has resulted to the defendant. Finally, paragraph four of the headnote states: 4. Crim. R.11(C) does not state that a defendant must be informed of consecutive sentences. Pursuant to Crim. R.11(C)(a) the court must determine whether the defendant is making a voluntary plea "with understanding of the nature - 6 - of the charge and of the maximum penalty involved." The maximum penalty refers to the charge to which the defendant is pleading guilty. There is no mention in the rule about consecutive sentencing. Similarly, in this case, the trial court addressed Davidson personally and correctly informed him of the maximum penalty involved for Felonious Assault, and Davidson acknowledged his understanding on the record at that time. Since the prior aggravated felony specifications had been deleted, the trial court had discretion to place the appellant on probation, order payment of a fine, or impose incarceration ranging from three to eight years up to a maximum term of fifteen years. The provisions of Crim. R. 11 do not require the court to advise a defendant about the discretionary imposition of actual incarceration. The requirement of the rule is that the defendant's plea be made knowingly, intelligently, and voluntarily and with an understanding of the nature of the charge and the maximum penalty. In accordance with State v. Stewart, supra, we must determine whether the trial court substantially complied with this rule. In Stewart, the court referenced Kelleher v. Henderson 531 F.2d 78 (C.A. 2 1976). for the proposition that the test is not knowledge of maximum or minimum sentences, but whether or not the plea would have been made. Here, facing trial and potential incarceration on two aggravated felonies carrying mandatory periods of non-probationable, actual - 7 - incarceration of 10, 11, 12, 13, 14, or 15 to 25 and 8, 9, 10, 11, or 12 to 15 years, the appellant chose to plead to a probationable offense which carried a penalty of 3, 4, 5, 6, 7, or 8, to 15 years. This is what the trial court explained to Davidson pursuant to Crim. R. 11 and what the appellant wisely would have chosen even if the court had advised of the possible imposition of actual incarceration. In accordance with the foregoing, we have concluded the trial court correctly determined that appellant entered a voluntary plea of guilty to the crime of Felonious Assault with an understanding of the nature of the charge and the maximum penalty involved. Accordingly, this assignment of error is without merit. In accordance with the foregoing analysis, the judgment of the trial court is affirmed. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant 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. SARA J. HARPER, PRESIDING JUDGE DAVID T. MATIA, JUDGE TERRENCE O'DONNELL, JUDGE 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, .