COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69403, 69404, 69405 and 69406 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MAURICE T. WILLIAMS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Nos. CR-285509, CR-291591, CR-294249 and CR-305117. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor George J. Sadd, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Nicholas K. Thomas, Esq. 21801 Lakeshore Boulevard Euclid, OH 44123 -2- DAVID T. MATIA, P.J.: Maurice Williams, defendant-appellant, appeals from his plea of guilty to the offenses of drug abuse, drug trafficking, unlawful possession of a dangerous ordinance and a violation of the drug law. Defendant-appellant assigns four errors for this court's review. Maurice Williams', defendant-appellant's, appeal is not well taken. I. THE FACTS On September 23, 1992, Maurice Williams, defendant-appellant, was indicted in Case No. 285509 by the Cuyahoga County Grand Jury for one count of drug abuse in violation of R.C. 2925.11 and for one count of possession of criminal tools in violation of R.C. 2923.24. Each count contained a violence specification. On January 14, 1993, Maurice Williams, defendant-appellant, entered a plea of guilty to count one of the amended indictment, drug abuse in violation of R.C. 2925.11. The violence specifications were deleted from the amended indictment and count two, possession of criminal tools, was nolled. Sentencing in case no. 285509 was continued pending the outcome of case no. 291591. Defendant-appellant does not challenge the plea in case no. 285509. On February 2, 1993, Maurice Williams, defendant-appellant, was indicted in case no. 291591 by the Cuyahoga County Grand Jury for two counts of drug trafficking in violation of R.C. 2925.03 and one count of possession of criminal tools in violation of R.C. 2923.24. Each count contained two violence specifications and counts one and -3- two contained a furthermore clause. On February 25, 1993, defendant-appellant entered a plea of not guilty to the indictment in case no. 291591. On May 10, 1993, Maurice Williams, defendant-appellant, was indicted in case no. 294249 by the Cuyahoga County Grand Jury for one count of carrying a concealed weapon in violation of R.C. 2923.12, two counts of having a weapon while under a disability in violation of R.C. 2923.13 and one count of unlawful possession of a dangerous ordinance in violation of R.C. 2923.17. Counts one and four contained two violence specifications and counts two and three contained one firearm specification and one violence specification. On June 22, 1993, defendant-appellant entered a plea of not guilty to the indictment in case no. 294249. On December 22, 1993, Maurice Williams, defendant-appellant, was indicted in case no. 305177 by the Cuyahoga County Grand Jury in a six count indictment. Counts one and two alleged violations of Ohio's drug law, R.C. 2925.03 and R.C. 2925.37 respectively. Count one contained one furthermore clause, one firearm specification and two violence specifications. Count two contained two furthermore clauses, one firearm specification and two violence specifications. Count three alleged that defendant-appellant had violated R.C. 2923.24, possession of criminal tools. Count three also contained one firearm specification and two violence specifications. Count four alleged that defendant-appellant had carried a concealed weapon in violation of R.C. 2923.12. Count four contained two furthermore clauses and two violence specifications. The remaining -4- two counts were for having a weapon while under a disability in violation of R.C. 2923.13. Counts five and six contained two violence specifications and one firearm specification. On December 29, 1993, defendant-appellant entered a plea of not guilty to the charges set forth in case no. 305117. Case nos. 291591, 294247 and 305117 were scheduled for trial on March 28, 1994 at Maurice Williams', defendant-appellant's, request. On the day of trial, a plea agreement was reached in all three cases. In case no. 291591, Maurice Williams, defendant-appellant, entered a plea of guilty to drug trafficking in violation of R.C. 2925.03 with two violence specifications. The remaining counts were nolled. In case no. 294249, Maurice Williams, defendant-appellant, entered a plea of guilty to one count of unlawful possession of a dangerous ordinance in violation of R.C. 2923.17 with two violence specifications. The remaining counts were nolled. In case no. 305117, Maurice Williams, defendant-appellant, entered a plea of guilty to a violation of Ohio's drug law, R.C. 2925.03 with a firearm specification. The remaining counts were nolled. That same day, Maurice Williams, defendant-appellant, was sentenced in case no. 285509 to a two year definite term of incarceration. In case no. 291591, defendant-appellant was sentenced to a definite term of two to fifteen years incarceration. In case no. 294249, defendant-appellant was sentenced to an -5- indefinite term of incarceration of three to five years. Lastly, in case no. 305117, defendant-appellant was sentenced to a mandatory term of seven years actual incarceration to be served prior and consecutive to an indefinite term of four to twenty-five years plus three years for the gun specification. The sentences in case nos. 285509, 291591 and 294249 were ordered to be served concurrently with the sentence in case no. 305117. Maurice Williams, defendant-appellant, maintains that the plea hearing of March 28, 1994 was deficient in that the trial court failed to even substantially comply with the mandates of Crim.R. 11. It is defendant-appellant's position that the trial court's failure to comply with Crim.R. 11 precluded him from entering a voluntary and knowing plea of guilty. On August 8, 1995, Maurice Williams, defendant-appellant, filed a motion for leave to file a delayed appeal from his guilty plea in the trial court. On September 5, 1995, this court granted defendant-appellant's motion and the instant appeal followed. II. FIRST, SECOND AND THIRD ASSIGNMENTS OF ERROR Maurice Williams', defendant-appellant's, first assignment of error states: THE DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. Maurice Williams', defendant-appellant's, second assignment of error states: -6- THE DEFENDANT WAS DEPRIVED OF HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. Maurice Williams', defendant-appellant's, third assignment of error states: THE DEFENDANT WAS DENIED HIS FIFTH, SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. Having a common basis in both law and fact, this court shall consider Maurice Williams', defendant-appellant's, first, second and third assignments of error simultaneously. A. THE ISSUE RAISED: CRIM. R.11. Maurice Williams, defendant-appellant, argues through his first, second and third assignments of error, that the trial court failed to comply with the mandates of Crim.R. 11. Specifically, defendant-appellant maintains that the trial court failed to adequately address the firearm specification contained in count one of the amended indictment for case no. 305117, failed to fully explain the amended indictment to which defendant-appellant was entering a guilty plea and failed to even substantially comply with Crim.R. 11. Defendant-appellant's first, second and third assignments of error are not well taken. B. STANDARD OF REVIEW. Crim. R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: -7- (1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives this right. (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (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 sentence. (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 order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty. Adherence to the provisions of Crim.R. 11(C)(1) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the -8- consequences of his plea of guilty or no contest. (Emphasis added.) State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, at 92. Literal compliance with Crim.R. 11 is the preferred practice. However, the fact that the trial court did not strictly comply with Crim.R. 11 does not compel vacation of the defendant's guilty plea if the reviewing court determines that there was substantial compliance. State v. Nero (1990), 56 Ohio St.3d 106. In Nero, the Ohio Supreme Court stated: 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, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 5676, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. Id. at 108. C. THE TRIAL COURT SUBSTANTIALLY COMPLIED WITH CRIM.R. 11. In the case sub judice, a review of the March 28, 1993 plea transcript demonstrates that the trial court substantially -9- complied with the mandates of Crim.R. 11 enabling defendant- appellant to enter a knowing and voluntary plea to the amended indictment. Defendant-appellant contends that the trial court failed to adequately address the firearm specification to which he pleaded guilty. Specifically, defendant-appellant maintains that the trial court did not obtain a separate plea to the firearm specification. Under R.C. 2929.71, the trial court imposes a three-year term of actual incarceration in addition to an indefinite term of imprisonment of the following apply: (1) The offender is convicted of, or pleads guilty to, any felony other than a violation of section 2923.12 of the Revised Code. (2) The offender also is convicted of, or pleads guilty to, a specification charging him with having a firearm on or about his person or under his control while committing the felony. (3) Section 2929.72 of the Revised Code is inapplicable. In this case, the prosecutor stated: *** with respect to Maurice Williams, the firearm specification would have to be served prior to and consecutive with the indefinite sentence of eleven to twenty-five years for a total of fourteen to twenty-five years (14 to 25). With respect to defendant Maurice Williams it is non-probationable and the defendant is agreeing to that term of incarceration subject to the court's approval. (Tr. p. 26, lines 8 to 15.) The trial court then proceeded to engage defendant-appellant in an oral dialogue: -10- Thank you very much. Mr. Williams you have heard the prosecutor reiterate what the amended indictment is, and the recommended sentence. Knowing all these things, how do you plead to the amended count one in case number 305117? I plead guilty your Honor. (Tr. p. 26, lines 17 to 24.) In addition, defendant-appellant's attorney stated that defendant-appellant fully understood the nature of the charges against him as well as his constitutional rights. Based upon the totality of the circumstances, the trial court substantially complied with Crim.R. 11 regarding the plea to the firearm specification. Defendant-appellant maintains further the trial court failed to comply with Crim.R. 11 regarding the amendment indictment. In State v. Childress (1993), 91 Ohio App.3d 258, the court found that the amendment of an indictment is proper when the defendant knowingly and voluntarily asserted to the amendment pursuant to a plea agreement with the prosecution. The record is clear that, in this case, defendant-appellant knowingly and voluntarily agreed to the amended indictment to which he entered a guilty plea pursuant to a plea agreement. Lastly, defendant-appellant maintains that the trial court failed to fully explain his constitutional rights relating to case nos. 294249 and 291591. A review of the record fails to support defendant-appellant's assertion. Prior to accepting defendant-appellant's guilty pleas in all three cases, the trial -11- court proceeded to inform defendant-appellant that he had the right to counsel, the right to trial by jury, the right to confront and cross-examine witnesses against him, the right to subpoena witnesses on his behalf, the right to testify, the right against self-incrimination and the state's burden of proof. Once again, under the totality of the circumstances, it is clear that the trial court substantially complied with Crim.R. 11 regarding all three case numbers to which defendant-appellant entered a plea of guilty on March 28, 1993. D. CONCLUSION. For the foregoing reasons, defendant-appellant's first, second and third assignments of error are not well taken. III. FOURTH ASSIGNMENT OF ERROR Maurice Williams', defendant-appellant's fourth and final assignment of error states: THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. A. THE ISSUE RAISED: EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues, through his fourth and final assignment of error, that he failed to receive effective assistance of counsel. Specifically, defendant-appellant maintains that his counsel allowed him to enter a guilty plea to drug trafficking in violation of R.C. 2925.03 when the drugs involved were a counterfeit controlled substance. -12- Defendant-appellant's fourth and final assignment of error is not well taken. B. STANDARD OF REVIEW FOR EFFECTIVE ASSISTANCE OF COUNSEL. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: "When considering an allegation of ineffective assistance of counsel, a two- step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness." State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially -13- the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981)." Strickland, supra, at 691. To warrant reversal, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. C. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. In this case, a review of the record fails to disclose that the performance of defendant-appellant's counsel was seriously flawed and deficient resulting in prejudice to defendant- appellant. The fact that defendant-appellant entered a plea of guilty to drug trafficking involving a counterfeit controlled substance does not support the conclusion that defendant- appellant's counsel was ineffective given the fact that the mere -14- offer of sale of controlled substance constitutes a violation of R.C. 2925.03. State v. Bazzy (1993), 86 Ohio App.3d 546. In fact, the record demonstrates that, by accepting the plea agreement negotiated by his attorney, defendant-appellant's potential sentence was reduced by approximately thirty years. Under the circumstances, defendant-appellant has failed to overcome the presumption of competence of licensed defense counsel and demonstrate counsel was deficient in negotiating and allowing defendant-appellant to enter a knowing and voluntary guilty plea in accordance with the plea agreement. D. CONCLUSION. For the foregoing reasons, defendant-appellant's fourth and final assignment of error is not well taken. Judgment of the trial court is affirmed. -15- 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. NAHRA, J. and TIMOTHY McMONAGLE, J., CONCUR. DAVID T. MATIA PRESIDING 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 .