COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69574 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN VILD, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 29, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-318317 JUDGMENT : AFFIRMED IN PART AND : VACATED IN PART. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: George J. Sadd Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Michael Troy Watson WATSON & WATSON 1367 East Sixth Street Suite 400 Cleveland, Ohio 44114 -2- NAHRA, J.: Defendant-appellant John Vild appeals from several orders of the Cuyahoga County Court of Common Pleas which were entered in case number CR-318317. The trial court denied appellant's motions to withdraw his no contest pleas, found appellant guilty of the charges against him, sentenced appellant, and ordered certain real property to be restored to its previous owners. Subsequently, appellant filed a motion for a release from incarceration pending this court's disposition of his appeal; however, his motion was not ruled upon. CR-318317 was originally filed as a fourteen count indictment on January 9, 1995. Appellant, appellant's wife, and appellant's parents-in-law were all named as defendants. The first ten counts of the indictment pertained to appellant and his wife, charging them with the following offenses: 1) grand theft of property of Rose DeRenzo, R.C. 2913.02; 2) grand theft of property of Josephine LaRiche, R.C. 2913.02; 3) forgery of a power of attorney in order to facilitate a fraud upon Rose DeRenzo, R.C. 2913.31; 4) forgery of a power of attorney and a quit-claim deed in order to facilitate a fraud upon Josephine LaRiche, R.C. 2913.31; 5) uttering, in order to facilitate a fraud upon Guardian Title, R.C. 2913.31; 6) uttering, in order to facilitate a fraud upon Society Bank, R.C. 2913.31; 7) possession of criminal tools, to wit: a forged power of attorney in the name of Rose DeRenzo, R.C. 2923.24; 8) possession of criminal tools, to wit: a forged power of attorney and quit-claim deed in the name of Josephine LaRiche, -3- R.C. 2923.24; 9) securing writings by deception, to wit: a check from Society Bank, R.C. 2913.43; and 10) securing writings by deception, to wit: real estate documents from Guardian Title, R.C. 2913.43. The last four counts of the indictment charged appellant's parents-in-law, William and Sylvia Crummie, with two counts of grand theft in violation of R.C. 2913.02 and two counts of receiving stolen property in violation of R.C. 2913.51. It can be gleaned from the record the indictment stemmed from an investigation by the Cleveland Police Department into the destitute circumstances of appellant's two elderly aunts. Over the course of a short period of time, while the victims were allegedly being cared for by appellant and his wife, the victims' home was sold to appellant's parents-in-law and the victims' "life savings" disappeared. The police investigated the transactions leading to the victims' destitution and then presented their findings to the grand jury, which eventually issued the indictment. Appellant, his wife and his parents-in-law were arraigned on January 24, 1995. They pleaded not guilty to the charges and 1 retained counsel Richard Lillie to represent them. The record reflects that Mr. Lillie thereafter filed many motions on behalf of 1 Although the journal entry indicates only attorney Richard G. Lillie was retained, the pleadings reflect he was assisted in his representation of the defendant by another attorney. Any reference to the defendants or "original counsel" in this opinion, however, generally indicates an action taken only by Mr. Lillie. -4- the defendants and also participated in at least three pretrials. Trial was eventually set for July 10, 1995. The record also reflects that during this time period appellant contacted some potential witnesses and, thus, was also 2 subsequently indicted in CR-319982 for obstruction of justice. On July 6, 1995, Mr. Lillie filed a motion for separate trials on behalf of the defendants. Mr. Lillie also filed a "supplemental witness list" of people whom he intended to call for trial. Included on this list was the name "Howard Reidel" of "Canton, Ohio." On July 10, 1995, the date set for trial, the trial court was notified a plea arrangement had been negotiated. A hearing was therefore held on the matter. At the hearing, the trial court initially noted that the "understanding" was that in exchange for appellant's plea to the indictment in CR-319982 and to most of the charges against him in CR-318317, all of the charges against appellant's wife and parents- in-law would be dismissed by the State. Mr. Lillie immediately stated for the record that at the outset of his representation of all the defendants, he had obtained "signed waivers" from them regarding any conflict of interest issues. The trial court thereupon permitted Mr. Lillie to "attach" appellant's written waiver to the record. 2 That case is not the subject of this appeal. -5- The trial court proceeded to address appellant pursuant to Crim.R. 11. First, it informed appellant of the charge and possible penalty associated with CR-319982; then it listed the charges in CR-318317 to which appellant had agreed to enter a plea, along with their possible penalties. Throughout this portion of the hearing, appellant indicated both his acquiescence in the plea arrangement and his understanding of the punishments which the trial court could impose for each charge. Next, the trial court explained the rights appellant was giving up by entering a plea. In pertinent part, during this portion of the hearing the following exchanges occurred: THE COURT: All right. By pleading ... you're giving up a series of rights. And I know your attorney has -- well, I'm sure they've explained all of your rights to you but I'll explain them again. If you have any questions of me you can ask me anything you want. If you want an opportunity to talk with counsel you may take that opportunity. Now is the time to do that. First of all, you bear no burden of proof. The burden is on the State to prove it's case beyond a reasonable doubt. By pleading no contest you are not in a position to dispute the facts. The State will do this one of two ways. Either the State will recite facts, or the parties can waive recitation of facts and accept the Court's finding of guilty. If I find that the no contest plea was tendered voluntarily and knowledgeably and that I'm satisfied that you understand all of your rights and what you are waiving the Court will return a finding of guilty. Do you understand that -- MR. VILD: Yes. THE COURT: -- okay, and avoid some civil problems perhaps. * * * -6- THE COURT: Has anybody threatened you in any way, any shape, any form in order to make you enter a plea? MR. VILD: No. THE COURT: Okay. Are you entering this plea voluntarily and knowledgeably and of your own free will? MR. VILD: Yes. THE COURT: You have a right to be represented by a lawyer. Are you satisfied with the representation that you have received? MR. VILD: Yes. THE COURT: Do you have any questions of me at this time? MR. VILD: No. * * * THE COURT: All right. Do you have any questions at all for me at this point? MR. VILD: No. THE COURT: Any further inquiry required or requested under Rule 11 after I ask the defendant this question? MR. LILLIE: No, your Honor. MR. BURNS [THE PROSECUTOR]: No, your Honor. THE COURT: Are you satisfied that, both attorneys, that the Court has complied with Rule 11 on taking the plea? MR. LILLIE: Yes, your Honor. MR. BURNS: Yes, your Honor. THE COURT: It's my understanding and I talked about this briefly. I'll tell you John there is two ways you could do this. If you enter a plea of no contest, which I anticipate you're going to, then the State of Ohio is allowed to spread on the record all of -7- the evidence that they anticipate they would produce during the course of a full-blown trial. You cannot dispute whatever it is they say. And if they touch upon each of the elements then of course the Court would accept your no contest plea, accept the recitation of facts and then return a finding consistent with each, which would be guilt or you can waive the recitation of facts and stipulate to the Court returning a finding accepting the anticipated recitation and incorporating by reference the pleadings. Do you understand what I'm saying? MR. VILD: Yes. THE COURT: Which do you want to do? You can either have it spread on the record or you can waive and stipulate to the Court's finding. MR. LILLIE: Your Honor, I've spoken with Mr. Vild. I've explained further these two alternatives to him and he advises me that he wishes to stipulate as to the governments (sic) facts. THE COURT: Alright, fine. John, in your response of course it will be no contest but now how do you plead to counts 1, 2, grand theft, 3, 4, forgery, counts (sic) 6, uttering, count 7, a possession of criminal tools, count 9 securing writings by deception? MR. VILD: No contest. THE COURT: On 319982 how do you plead to obstruction of justice? MR. VILD: No contest. THE COURT: Okay, the Court will accept the police (sic) of no contest. On docket number 319982 on the obstruction charge a fourth degree felony, counts 1 and 2, grand theft, counts 3, 4, 7, 8, 6 and 9, fourth degree determinate felonies I will incorporate by reference at the request of the State of Ohio the pleas have been filed in conjunction with this case to include but not limited to the indictments that are contained within the file. I will accept the stipulation between the parties relative to the Court accepting the no contest plea and the stipulation of the Court finding of guilty as it relates to all of the counts, the obstruction on 319982, the two grand theft charges on 318317, the forgeries on 3 and 4, the uttering counts, (sic) 6, the PCT, on counts 7 and 8, and the securing -8- writings on count number 9. In addition to that, the Court will accept the stipulation by counsel waiving any defects to the manner in which the no contest plea was taken. Anything further on behalf of the defense or the State at this time? MR. BURNS: No, your Honor. (Emphasis added.) Appellant was thereupon referred to the probation department for a presentence investigation and report. His wife and parents- in-law were permitted to leave. The trial court's journal entry of the plea hearing reflects the following: appellant was "fully" informed of his constitutional rights, "enters a plea of no contest to the indictment ... waives defects and stipulates to court findings." Furthermore, the trial court, "upon full consideration of all the evidence" found appellant guilty as charged in counts two, three, four, six, seven, eight and nine, with counts five and ten nolled. Appellant's sentencing hearing was set for August 21, 1995. On August 18, 1995, Mr. Lillie filed a motion on appellant's behalf to withdraw his plea. On August 21, 1995, the date set for appellant's sentencing hearing, at 9:00 a.m., a new attorney filed on appellant's behalf a more detailed motion to withdraw his plea, to which several affidavits and numerous other documents were attached. New counsel argued appellant had discovered additional evidence which, if he had known of its existence, would have exonerated him and caused him not to enter the plea. New counsel also filed a notice of substitution of counsel. -9- The trial court proceeded to hold a hearing that same day at 10:30 a.m. At the outset, the trial court noted that new materials had been filed in the case and granted Mr. Lillie's "oral motion" to withdraw as appellant's counsel. It then directed appellant's new counsel to present appellant's motion to withdraw his plea. During the hearing, the trial court heard arguments on the motion, stated appellant's brief in support of the motion along with its attached evidence was incorporated into the record, questioned Mr. Lillie on some points regarding appellant's plea hearing and Mr. Lillie's investigation of the case against appellant, and also permitted appellant to testify. Thereafter, the trial court stated: THE COURT: * * * The defense's request to vacate the no contest plea is denied. The Court is not moved at all by the request that there was less than a voluntary, knowledgeable plea on the part of the defendant. I talked to him at length. I have nothing but respect for the attorneys that represent Mr. Vild and the attorneys now and the attorneys that represented him prior to that. Everything was explained. There were extensive pre- trials, extensive conversations by and between the parties, and there is no doubt in my mind's eye -- and I have been physically in this building since '76 -- that Mr. Vild understood everything and everything that I was talking about in my efforts to make sure that anybody who asserts a plea of no contest or guilty understands exactly what is going on. (Emphasis added.) The trial court thereupon proceeded to hold a lengthy sentencing hearing. Appellant was invited to speak on his own -10- behalf. The trial court also heard from some of appellant's relatives and friends. Subsequently, the trial court stated: THE COURT: The Court also has to take into consideration, and I'm going to do that statutorily, the age of the [victims] that are involved, and there is no dispute both of the ladies involved in this are in their 80s, one 81, one 88, if I recall correctly. MR. WATSON [NEW DEFENSE COUNSEL]: Yes, Judge. THE COURT: This is also the first time in my experience that I received a request from the State probation department, and you have to get authority from Columbus to make this recommendation, that they recommend incarceration. That's very unusual, but it's a great measure because of the disparity of your comments, your recitation of what occurred and that which comes to this Court as a result of independent evaluation from unbiased people. In any event, first of all, the Court is going to deem the transfer of the home as being a fraudulent transfer and I'm going to order the appropriate authorities to set aside that transfer. I will prepare or cause to be prepared the appropriate paperwork so it goes back to the original owners. (Emphasis added.) The trial court then sentenced appellant to an aggregate term of ten years of incarceration and ordered him to pay restitution to the victims in the amount of $24,165.72. On August 30, 1995, appellant filed a motion for reconsideration of the order denying his motion to withdraw his plea. Numerous documents, copies of documents and photographs were attached to the motion. On September 11, 1995, the trial court denied it. -11- On September 19, 1995, appellant filed the following: 1) a motion for an appeal bond in the trial court; 2) an "addendum" to his motion for reconsideration in the trial court, to which more evidentiary material was attached; and 3) his notice of appeal in this court. Appellant presents seven assignments of error for this court's review. They are set forth verbatim, and considered together where appropriate. I. Appellant's first assignment of error states: THAT THE TRIAL COURT ERRED IN FAILING TO ALLOW THE DEFENDANT-APPELLANT'S WITHDRAWAL OF HIS TIMELY FILED MOTION FOR WITHDRAWAL OF NO CONTEST PLEAS (8-21-195). Appellant claims the record suggests that his no contest plea was less than voluntary since he agreed to plead only when "threatened" his children would be placed in a foster home should he and his codefendants go to trial and ultimately be found guilty. Appellant also contends there was "no factual basis" for the charges against him. On these two grounds, he argues the trial court improperly denied his motion to withdraw his plea. Appellant's argument, however, is baseless. Appellant filed his motion to withdraw his no contest plea pursuant to Crim.R. 32.1, which states as follows: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. -12- With regard to a Crim.R. 32.1 motion made prior to sentencing, the standard of appellate review of the trial court's decision is limited to a determination of whether the trial court abused its discretion. State v. Xie (1992), 62 Ohio St.3d 521, syllabus 2; see, also, State v. Peterseim (1980), 68 Ohio St.2d 211; State v. Posta (1987), 37 Ohio App.3d 144. Unless it is shown that the trial court's decision was unreasonable, arbitrary or unconscionable, there is no abuse of discretion. State v. Xie, supra, at 527. In this case, a review of the record of the hearing held on appellant's motion to withdraw his plea reveals the trial court simply did not find appellant's testimony to be credible. Thus, the trial court could not find "a reasonable and legitimate basis for the withdrawal of the plea." Id. at syllabus 1. As the record of the plea withdrawal hearing demonstrates, appellant could not substantiate his claim he was "coerced" into entering a plea. When questioned by the trial court, appellant could not state he was "threatened" that his children would be taken from their home if he went to trial. Moreover, although appellant's original trial counsel testified the welfare of appellant's children was raised as a concern during plea negotiations, counsel adamantly denied that any part of the discussion could have been construed as a threat in order to induce a plea. Furthermore, a fair reading of the proceedings of the plea hearing demonstrates appellant's awareness that his close family members obviously were receiving a benefit under the plea -13- arrangement since they were free to leave when the remaining charges were dismissed. With regard to appellant's contention his plea lacked a "factual basis," the record reflects appellant waived the recital of the prosecution's evidence. The record also reflects the trial court was thoroughly familiar with the evidence, much of which is contained in the file. In view of the self-serving nature of appellant's testimony at the hearing on his motion to withdraw his plea, and his poor "memory" of what actually transpired during the plea hearing, this court cannot find the trial court abused its discretion in this matter. State v. Robinson (Mar. 21, 1991), Cuyahoga App. No. 58181, unreported. * * * The trial court was in a better position to evaluate * * * than is an appellate court which is only reviewing a record of the hearing. * * * We defer to the judgment of the trial court, because "the good faith, credibility and weight of the movant's assertions in support of the motion are matters to be resolved by that court." Smith, 49 Ohio St.2d at 264, 3 O.O.3d at 404, 361 N.E.2d at 1326. State v. Xie, supra, at 525. (Emphasis added.) For the foregoing reasons, appellant's first assignment of error is without merit and is therefore overruled. II. Appellant's second and fourth assignments of error states: II. THAT THE DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL UNDER THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT BY THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND THAT COUNSEL'S PERFORMANCE WAS SO DEFICIENT AS -14- TO PREJUDICE THE DEFENDANT-APPELLANT'S RIGHTS AND DEFENSE HEREBY RENDERING HIS PLEA NOT A KNOWING AND VOLUNTARY PLEA. IV. THAT THE TRIAL COURT ERRED IN FAILING TO RULE ON THE DEFENDANT-APPELLANT'S PRETRIAL MOTIONS OF: MOTION TO CHANGE VENUE (2-14-95), MOTION TO CONSOLIDATE (4-14-95), AND DEFENDANT'S MOTION FOR SEVERANCE AND SEPARATE TRIAL (7-6- 95) ALL IN VIOLATION OF THE COURT'S OBLIGATION UNDER CRIMINAL RULE 12(E). In these assignments of error, appellant first argues his original trial counsel was ineffective based upon certain actions taken during the course of his representation of appellant, viz., 1) failing to either obtain or produce available witnesses such as Harry Reidl or exculpatory evidence such as handwriting experts prior to the plea hearing; 2) failing to obtain rulings on three pretrial motions; 3) urging appellant to accept the plea; 4) undertaking representation of all the defendants in CR-318317; and 5) waiving Crim.R. 11 requirements during the plea hearing. Appellant further argues that the trial court's failure to explicitly rule on three pretrial motions was error which mandates reversal of his convictions. Since the record fails to support them, however, none of appellant's arguments is persuasive. To prevail on a claim of ineffective assistance of counsel, appellant must first show counsel's performance was deficient and must then show there is a reasonable probability that, but for counsel's errors, the outcome of the hearing would have been different. State v. Bradley (1989), 42 Ohio St.3d 136; see, also, State v. Xie, supra; Strickland v. Washington (1984), 466 U.S. 668. Appellant cannot meet his burden, however, by making bare -15- allegations which find no support in the record. State v. Smith (1985), 17 Ohio St.3d 98; State v. Melton (Mar. 18, 1993), Cuyahoga App. No. 62074, unreported; State v. Adams (Mar. 3, 1994), Cuyahoga App. Nos. 64759 and 64760, unreported. Moreover, this court will not second-guess what could be considered a matter of trial strategy. State v. Smith, supra. There is nothing in the record to support appellant's assertion counsel did not attempt to obtain exculpatory evidence prior to the plea hearing. Rather, the case file and the transcripts of both hearings suggest counsel had thoroughly investigated and prepared the case in the event trial would be necessary. Cf., State v. Hamed (1989), 63 Ohio App.3d 5. In view of this, counsel's decisions to outline for appellant the advantages of the plea arrangement and to advise appellant to waive the recitation of the facts during the plea hearing were both matters of trial strategy. Similarly, not only does the record prove counsel intended to call Harry Reidl as a witness if it became necessary, but counsel's decision whether to actually issue a subpoena to him for the hearing was a matter of trial strategy. State v. Hunt (1984), 20 Ohio App.3d 310. It follows that the decision to obtain and present other evidence also fits within this ambit. State v. Seokaran and Pooran (Apr. 8, 1993), Cuyahoga App. Nos. 62298, 62299, 63353 and 63354, unreported. Thus, original counsel was not deficient in the foregoing particulars. -16- A review of counsel's failure to obtain rulings on several pretrial motions in light of the record also does not demonstrate his ineffectiveness. Furthermore, since it did not affect any of appellant's substantial rights and appellant failed to bring the matter to its attention, the trial court's failure to explicitly issue a ruling on those motions does not constitute error which would justify reversal of appellant's convictions. State v. Tolbert (1990), 70 Ohio App.3d 372; State v. Holden (1985), 23 Ohio App.3d 5; State v. Mathis (Oct. 31, 1985), Cuyahoga App. Nos. 49649, 49641, unreported. First, pursuant to Crim.R. 12(E), a motion for a change of venue need not be determined prior to trial. Trial in this case was set for July 10, 1995. However, since the plea agreement was finally arranged on that day and the plea hearing held instead, any necessity for a ruling on either this motion or on the motion for separate trials for all the defendants vanished. See, e.g., State v. Nickleberry (Oct. 28, 1982), Cuyahoga App. No. 44387, unreported. Second, as the transcript of the plea hearing makes clear, the motion to consolidate case numbers CR-318317 and CR-319982 was granted in effect since CR-319982 was dismissed as a part of the plea arrangement. Finally, the record conclusively proves that appellant was "fully advised" regarding counsel's "potential and/or perceived conflict(s) of interest" in undertaking representation of all the defendants in CR-318317 and had agreed in writing to that -17- representation. Clearly, original counsel took care to comply with the Code of Professional Responsibility. See, e.g., EC5-16, EC5- 19, DR5-105(C). On the record before this court, therefore, appellant cannot demonstrate original counsel's performance fell below an objective standard of reasonable presentation. That being so, he also cannot demonstrate he was prejudiced by counsel's actions. Since appellant has failed to support either his claim he received ineffective assistance of counsel prior to his plea withdrawal hearing, or his assertion the trial court's failure to rule on his pretrial motions affected any of his substantial rights, appellant's second and fourth assignments of error must also be overruled. State v. Adams, supra; State v. Tolbert, supra. III. Appellant's third assignment of error states: THAT THE TRIAL COURT ERRED IN THE SENTENCING OF THE DEFENDANT-APPELLANT BY SENTENCING HIM TO ONE AND ONE- HALF YEARS AT LORAIN CORRECTIONAL INSTITUTE (CONCURRENT) ON COUNT 5 WHICH HAD BEEN DISMISSED. Appellant argues his sentence is improper since he was ordered 3 to be incarcerated on a charge which had been nolled by the state. Appellant's argument is well-taken. A review of the transcript of appellant's sentencing hearing demonstrates that during the trial court's pronouncement of 3 Appellant also argues the sentence imposed in CR-319982 was improper, however, since no notice of appeal was filed in that case, this court has no jurisdiction to consider his argument. R.C. 2505.04. -18- sentence, it stated count five was dismissed; thus, no sentence was being imposed therefor. However, as the hearing continued, a short time later the trial court misstated the counts for which sentence was being imposed. Subsequently, the journal entry of sentence indicated appellant received a term of incarceration of one and a half years on counts "3, 4, 5, 6, 7, 8 & 9." The journal entry goes on to state, however, that the terms imposed on counts five and six were to run "concurrently." It is clear from both the transcript of the sentencing hearing and the journal entry that the trial court's intent was to impose an aggregate term of ten years of incarceration. Since the journal entry states the time on count "5" was to run concurrently with that imposed on count six, appellant's aggregate term remains the same and was not actually increased by the error. Nevertheless, appellant's third assignment of error is sustained. The journal entry of sentence is modified to reflect count five was dismissed and the one and a half year term of incarceration imposed on that count is vacated. IV. Appellant's fifth assignment of error states: THAT THE DECISION OF THE COURT IN FINDING THE DEFENDANT- APPELLANT GUILTY ON HIS NO CONTEST PLEA WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND FURTHER FAILED TO COMPLY WITH THE COURT'S OBLIGATION UNDER CRIMINAL RULE 11 WHICH COULD NOT BE WAIVED BY COUNSEL EXCEPT INEFFECTIVE COUNSEL WHO FAILED TO PROTECT THE RIGHTS OF HIS CLIENT IN THIS CASE, DEFENDANT-APPELLANT. -19- Appellant apparently contends that without a complete recitation of the evidence by the prosecution at his plea hearing, and in view of the evidence attached to his subsequent motions, the trial court could not properly have convicted him. Assuming arguendo this court can consider such a contention, see State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, the record reveals appellant, since he waived a recitation of the facts, stipulated to them. Moreover, it must be noted that in noncapital felony cases, there is no specific procedural or substantive requirement that the trial court must obtain "a recitation of facts from anyone before entering a guilty finding." State v. Thorpe (1983), 9 Ohio App.3d 1. See, also, State v. Post (1987), 32 Ohio St.3d 380 at 386-387; Crim.R. 11(C)(4). Cf., R.C. 2937.07; Cuyahoga Falls v. Browers (1984), 9 Ohio St.3d 148; State v. Waddell (1995), 71 Ohio St.3d 630. Finally, pursuant to Crim.R. 11(B)(2), appellant's plea of no contest, given after being fully advised of his rights and the consequences of such a plea, constituted an admission of the facts alleged in the indictment. For the foregoing reasons, the trial court did not err in accepting appellant's plea of no contest to the charges against him. Accordingly, appellant's fifth assignment of error is also overruled. -20- V. Appellant's sixth assignment of error states: THAT THE TRIAL COURT ERRED IN ISSUING ITS ORDER TO "SET ASIDE THE TRANSFER AND RESTORE OWNERSHIP TO THE VICTIMS" RELATING TO THE TRANSFER OF PROPERTY LOCATED AT 2018 MURRAY HILL ROAD, CLEVELAND, OHIO. Despite appellant's admission of the facts alleged in the indictment against him, including those relating to the fraudulent transfer of the victims' real property into the names of his parents-in-law, appellant argues the trial court abused its discretion when it ordered the property to be restored to the victims. Inasmuch as appellant never had an ownership interest in the property, he lacks standing to challenge the trial court's action in this regard. Consequently, appellant's sixth assignment of error is also overruled. VI. Appellant's seventh assignment of error states: THAT THE TRIAL COURT ERRED AND/OR ABUSED HIS DISCRETION IN THE DENIAL OF THE DEFENDANT'S APPEAL BOND. The record reflects appellant filed his motion for an "appeal bond" on September 19, 1995. Appellant filed his notice of appeal in this court the same day. Since the trial court never issued an order either granting or denying appellant's motion, this court cannot consider appellant's seventh assignment of error. App.R. 12(A); see, also, App.R. 8. -21- Based upon the foregoing, the journal entry of conviction and sentence is modified to reflect count five of the indictment against appellant was dismissed; the imposition of a term of incarceration on that count is vacated. In all other respects, appellant's convictions and sentences are affirmed. -22- 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. SWEENEY, JAMES D., P.J., and KARPINSKI, J., CONCUR. JOSEPH J. NAHRA 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 journalization, at which time .