COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69568 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION IMAD JAFFEL : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 10, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-291859-A. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Denise R. Cameron Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Nicholas K. Thomas, Esq. 21801 Lakeshore Boulevard Euclid, Ohio 44123 SWEENEY, JAMES D., P.J.: Defendant-appellant Imad Jaffel appeals from his conviction for drug trafficking, in violation of R.C. 2925.03. Subsequent to entering a plea of guilty, the appellant was sentenced to a term of four to fifteen years incarceration, the first three years of which were mandatory actual time. The appellant's original indictment included four counts. The first count, to which the appellant entered a plea of guilty, was drug trafficking, in violation of R.C. 2925.03, and included two furthermore clauses containing prior drug convictions. The second count indicted the appellant for permitting a motor vehicle to be used for the commission of a felony drug abuse offense, in violation of R.C. 2925.13, and the third count of the indictment charged the appellant with possession of cocaine, in violation of R.C. 2925.11. The second and third counts also included both furthermore clauses pertaining to the prior convictions. Finally, count four charged the appellant with possession of criminal tools, in violation of R.C. 2923.24. As a result of the appellant's plea, the furthermore clauses were deleted from the first count and the court dismissed counts two, three and four. The appellant sets forth three assignments of error. The first assignment of error: - 3 - I THE APPELLANT'S PLEA WAS NOT VOLUNTARILY AND KNOWINGLY MADE IN VIOLATION OF THE APPELLANT'S SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant argues that the trial court erred when it failed to inform him that he was entering a plea to a second degree felony, not a third degree felony. The appellant also asserts that the court made confusing statements regarding the sentencing. The standard for determining whether a trial court properly accepted a plea of guilty is substantial compliance. State v. Stewart (1977), 51 Ohio St.2d 86; State v. Johnson (1988), 40 Ohio St.3d 130. Substantial compliance has been defined as meaning that, under the totality of the circumstances, the defendant subjectively understood the implications of the plea and the rights which were waived. State v. Nero (1990), 56 Ohio St.3d 106. Crim.R. 11(C)(2) sets forth the requirements the court must follow in accepting a felony plea from a defendant: (C) Pleas of guilty and no contest in felony cases. * * * * (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. - 4 - (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. The trial court in the case sub judice faithfully met these requirements. The court informed the appellant that the charge was sale of cocaine, one to three times the bulk amount (T. 6); that the prison sentence was mandatory (T. 6); that the maximum sentence was fifteen years incarceration (T. 7); that he would not be eligible for shock probation, shock parole, or furlough (T. 7); that by entering the plea the appellant would be admitting the charges as true (T. 7); and that there was a minimum mandatory fine of $5,000 which would be imposed unless the appellant proved indigency (T. 7). The court informed the appellant that he had a right to trial, either by a jury or to the bench; that he had a right to be present in the courtroom throughout the trial; that he had a right to an attorney, and that if he could not afford an attorney, one would be appointed; that the State bore the burden of proving guilt beyond a reasonable doubt; that he had a right to cross-examine the State's witnesses and to subpoena his own witnesses; and that he had a - 5 - right not to testify on his own behalf, but that if he chose not to testify, no comment could be made regarding that decision (T. 8- 10). The court asked the appellant whether he understood his rights, the appellant indicated that he did (T. 10). The court also asked the appellant if he had any questions, and the appellant responded that he did not (T. 10). The appellant has cited no cases which state that the court had an additional responsibility to ensure that an appellant knows the degree of felony to which he is entering a plea. The trial court painstakingly informed the appellant of all of his rights as required by law. This court cannot find any basis upon which to hold that the trial court failed to comply with Crim.R. 11. The appellant additionally complains that he was confused by the following statement of the court: "I guess that is the discussion we had about two years, because if you don't get in trouble down there, you would get out in two-thirds of your sentence if I gave you three years." (T. 7.) This statement by the court was made subsequent to informing the appellant that he would have to serve three years actual incarceration and would not be eligible for probation or parole, and prior to the court informing the appellant that a mandatory fine would be imposed unless there was an indication of the appellant's indigency. Although the court's statement was not a model of clarity, the record demonstrates that the court informed the appellant that the - 6 - possible sentence was a term of incarceration of two, three, four, or five years minimum, and a maximum of fifteen years. The court also informed the appellant that he would receive a term of actual incarceration of three years. The statement made by the court was not so confusing as to lead the appellant to enter an unknowing and involuntary plea. The appellant's first assignment of error is overruled. The second assignment of error: II THE APPELLANT WAS DEPRIVED OF DUE PROCESS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant alleges that the court erred when it failed to inform the appellant that his sentence would be served consecutively with a sentence on a prior case. The record demonstrates that at the plea hearing, the trial court informed the appellant that by virtue of his plea, he became a probation violator on his prior case, and that the sentence imposed subsequent to the plea would be served consecutively with the prior case (T. 8). While the court explained to the appellant the parameters of any potential sentence, case law is clear that the court was going above and beyond its duty. This court has held that Ohio does not require a trial court to explain the consequences and effects of - 7 - prior convictions before accepting a guilty plea. State v. Harris (Sept. 28, 1995), Cuyahoga App. No. 67904, unreported. The appellant's second assignment of error is overruled. The third assignment of error: III THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS REQUIRED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant argues that he was rendered ineffective assistance of counsel by counsel's failure to provide promised documentation from the INS to the court and failed to bring up the appellant's potential deportation at the sentencing. The appellant posits that had information been given to the court regarding the appellant's deportation status, the court may have granted a more favorable sentence. The appellant also asserts that counsel incorrectly informed him that he was entering a plea to a third degree felony and that his counsel failed to enter a motion to withdraw the plea as he directed. In State v. Xie (1992) 62 Ohio St.3d 521, the court held that in order to satisfy the standards of Hill v. Lockhart (1985), 474 U.S. 52 and Strickland v. Washington (1984), 466 U.S. 668, the appellant must show not only that counsel's performance was deficient, but that there is a reasonable probability, but for counsel's errors, the appellant would not have pled guilty. The appellant herein has failed to meet this burden. The appellant speculates that had counsel presented certain paperwork to the court, he would have received a lighter sentence, and - 8 - perhaps would have been given shock probation. Such speculation regarding the ultimate sentence is not sufficient to show that absent counsel's actions he would not have entered the plea. This is especially true in light of the fact that by entering the plea three counts of the indictment were dismissed and the furthermore clauses removed from the count on which the appellant pled. Such considerations would be a powerful inducement to enter a plea regardless of the availability of probation. In addition, the court clearly informed the appellant that he was not eligible for probation, and counsel's provision of documents would not have changed this fact. Although the appellant attached an affidavit to his appellate brief, this court is precluded from considering evidence presented on appeal which was not before the trial court. See State v. Ishmail (1978), 54 Ohio St.2d 402. Thus there is no evidence before this court that the appellant wished to withdraw his plea, and counsel cannot be held insufficient for failure to make such a motion. Finally, any failure of counsel to inform the appellant the degree of felony to which he was entering a plea was not prejudicial. The court informed the appellant of his rights and of the effects and consequences of entering a plea. The third assignment of error is overruled. Judgment affirmed. - 9 - 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. PATRICIA A. BLACKMON, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES D. SWEENEY PRESIDING 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 .