COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69683 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : KENNETH McCOWN : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 31, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-304054. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Valerie R. Arbie, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, J.: Kenneth McCown, defendant-appellant, appeals from his plea of guilty in Cuyahoga County Court of Common Pleas Case No. CR-304054 to the offenses of rape, in violation of R.C. 2907.02, gross sexual imposition, in violation of R.C. 2907.05 and domestic violence, in violation of R.C. 2919.25(C). Defendant-appellant assigns three errors for this court's review. Defendant-appellant's appeal is affirmed. I. THE FACTS On January 24, 1994, Kenneth McCown, defendant-appellant, was indicted by the Cuyahoga County Grand Jury in an eight count indictment. Counts one, two and three of the indictment charged defendant-appellant with the rape of Denise Firman, a minor under the age of thirteen, in violation of R.C. 2907.02. Denise Firman was defendant-appellant's step-daughter. As indicted, the three counts of rape constituted aggravated felonies of the first degree. Count four of the indictment charged defendant-appellant with the felonious sexual penetration of Darlene McCown, defendant- appellant's wife, in violation of R.C. 2907.12, an aggravated felony of the first degree. Count five of the indictment charged defendant-appellant with the attempted felonious sexual penetration of Darlene McCown in violation of R.C. 2907.12 and R.C. 2923.02, an aggravated felony of the second degree. Count six of the indictment charged defendant-appellant with the felonious assault of Darlene McCown in violation of R.C. 2903.11. This count contained a violence specification and was an aggravated felony of -3- the second degree. Count seven of the indictment charged defendant-appellant with kidnapping Darlene McCown in violation of R.C. 2905.01, an aggravated felony of the second degree. The eighth and final count of the indictment charged defendant- appellant with domestic violence in violation of R.C. 2919.25(C), a misdemeanor of the fourth degree. On February 4, 1994, defendant-appellant was arraigned whereupon a plea of not guilty was entered as to all eight counts contained in the indictment. On June 28, 1994, the trial court conducted a change of plea hearing during which the prosecution explained a proposed plea agreement whereby count one of the indictment would be amended to delete the language pertaining to "force" thereby removing the possibility of a life sentence, count four of the indictment would be amended from felonious sexual penetration to gross sexual imposition in violation of R.C. 2907.05 and count eight of the indictment would remain as indicted. In exchange for defendant- appellant's plea to the above agreement, a nolle prosequi would then be entered as to the remaining counts of the indictment. During this explanation, the prosecution set forth the maximum sentence allowed for each offense and stated whether the offense in question was probationable. Defense counsel concurred with the prosecution's stated version of the plea agreement and indicated that defendant-appellant was willing to enter a plea of guilty to the amended charges. -4- Following this discussion, the trial court engaged defendant- appellant in an oral dialogue regarding his rights prescribed by Crim.R. 11, defendant-appellant's desire to enter a guilty plea to the amended charges and the possible sentences on each of these charges. Defendant-appellant acknowledged that he understood his Crim.R. 11 rights as set forth and stated that he wished to enter a guilty plea to the amended indictments. At the conclusion of the dialogue, defendant-appellant entered a plea of guilty to the three counts contained in the amended indictment. Defendant-appellant acknowledged that he entered the guilty pleas voluntarily and of his own free will. At the conclusion of defendant-appellant's plea, a second hearing was conducted regarding the continuation of defendant- appellant's bond pending the preparation of a presentence investigation report. The only witness to testify during this hearing was Darlene McCown, defendant-appellant's wife, who testified regarding her life and home with defendant-appellant. As a result of Mrs. McCown's testimony, the trial court determined that defendant-appellant's bond would be revoked and defendant- appellant would be remanded to the county jail until the sentencing hearing. On August 19, 1994, defendant-appellant was sentenced by the trial court to serve a term of imprisonment of six to twenty-five years on count one, eighteen months on count four and thirty days on count eight. All sentences were ordered to run concurrently. During the sentencing hearing, defendant-appellant proclaimed his -5- innocence regarding the rape of his step-daughter for the first time. On October 16, 1995, defendant-appellant filed a motion for delayed appeal and for appointment of counsel. Both motions were granted by this court. On January 29, 1996, appointed counsel filed a motion for leave to withdraw due to the failure to find a legitimate issue to raise on appeal. On February 16, 1996, appointed counsel's motion was granted and the Cuyahoga County Public Defender was appointed to represent defendant-appellant on appeal. The instant appeal followed. II. FIRST ASSIGNMENT OF ERROR Kenneth McCown's, defendant-appellant's, first assignment of error states: APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT ACCEPTED A GUILTY PLEA TO THE OFFENSE OF GROSS SEXUAL IMPOSITION OF THE APPELLANT'S WIFE, AN OFFENSE WHICH HE COULD NOT, BY STATUTORY DEFINITION, COMMIT. A. THE ISSUE RAISED: CRIM.R. 11. Defendant-appellant argues, through his first assignment of error, that the trial court incorrectly accepted a plea of guilty to the offense of gross sexual imposition. Specifically, defendant-appellant maintains that his plea of guilty to the offense of gross sexual imposition could not have been a knowing and intelligent plea since the alleged victim of the offense was defendant-appellant's wife, Darlene McCown. Ohio's gross sexual imposition statute, R.C. 2907.05, provides in pertinent part: -6- (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: * * * It is defendant-appellant's position that, based upon the language of R.C. 2907.05(A), he was statutorily precluded from committing the offense of gross sexual imposition against his wife and therefore the plea of guilty should be vacated. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW FOR CRIM.R. 11. Crim.R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: (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 -7- 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 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 -8- 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 MANDATES IN ACCEPTING THE GUILTY PLEA. In the case sub judice, a review of defendant-appellant's guilty plea to the offenses of rape, gross sexual imposition and domestic violence demonstrates the following: 1) defendant-appellant knowingly and voluntarily withdrew his original plea of not guilty; 2) defendant-appellant was advised of the maximum term of incarceration that could be imposed by the trial court with regard to the offenses of rape, gross sexual imposition and domestic violence; 3) defendant-appellant acknowledged his right to a trial by jury or judge, the right to confront all witnesses against him, the right to subpoena witnesses on his -9- behalf, the right to refuse to testify and the right to proof of guilt beyond a reasonable doubt; 4) defendant-appellant acknowledged that he fully understood the nature of the plea he was entering, the effect of the plea and that he was entering the plea of his own free will; and 5) defendant-appellant acknowledge that no threats or promises had been made in exchange for his plea of guilty. A complete examination of the record fails to support defendant-appellant's assertion that he did not knowingly enter into the plea agreement in question. Not only did the trial court thoroughly explain all defendant-appellant's constitutional rights in accordance with Crim.R. 11 but the trial court also inquired as to whether defendant-appellant knew the specific offenses to which he was entering a guilty plea, the factual circumstances behind each offense as well as the identity of the victim. At no time during the proceedings did defendant- appellant express confusion or a lack of understanding regarding the nature of the plea or the underlying offenses. State v. Elliott (1993), 86 Ohio App.3d 772, 796. Defendant-appellant maintains that his plea of guilty to the offense of gross sexual imposition could not have been a knowing and intelligent plea since the victim of the offense was defendant-appellant's wife, Darlene McCown. Defendant-appellant relies upon the case of State v. Fletchinger (1977), 51 Ohio -10- App.2d 73, 77 in which this court determined that where an indictment charged the defendant with the rape of a ten-year-old boy in violation of R.C. 2907.02, the trial court erred in accepting defendant's plea of guilty to corruption of a minor, R.C. 2907.04, because corruption of a minor ten years old is not a lesser included offense of rape, and because, under the facts set forth in the indictment, the defendant was permitted to plead guilt to an offense for which she could neither be charged or convicted. However, this case is distinguishable from Fletchinger in two significant respects. First, the offense of gross sexual imposition is in fact a lesser included offense of the indicted offense of felonious sexual penetration. State v. Aiken (June 10, 1993), Cuyahoga App. No. 64627, unreported; State v. Polk (May 17, 1979), Cuyahoga App. No. 38832, unreported. Second, defendant-appellant, by entering the plea of guilty to the amended count of rape, gross sexual imposition and domestic violence, received the dual benefit of removing the possibility of a life sentence for rape and reducing the possible sentence from 3, 4, 5, 6, 7, 8, 9, 10 to 25 years imprisonment for felonious sexual penetration to a possible sentence of 6, 12 or 18 months for gross sexual imposition. A review of the record demonstrates that defendant-appellant understood the nature of the offenses to which he was entering a plea of guilty as well as all of the implications of the guilty plea and its practical and constitutional effect. Under the somewhat unusual facts of the -11- instant case, it is apparent that defendant-appellant's plea was knowingly, intelligently and voluntarily entered. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Kenneth McCown's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT'S GUILTY PLEA WITHOUT CONDUCTING AN EXAMINATION AS TO THE FACTUAL BASIS OF THE CHARGE AS REQUIRED WHEN A DEFENDANT ENTERS AN ALFORD PLEA, RESULTING IN AN INVOLUNTARILY ENTERED GUILTY PLEA. A. THE ISSUE RAISED: THE TRIAL COURT'S ACCEPTANCE OF DEFENDANT- APPELLANT'S GUILTY PLEA. Defendant-appellant argues, through his second assignment of error, that the trial court erred in accepting the plea of guilty to the amended indictment. Specifically, defendant-appellant maintains that when he stated that he was entering a plea of guilty to the amended count of rape in order to remove the possibility of a life sentence, the trial court was required to 1 treat the plea as an Alford plea and conduct an inquiry to ensure that defendant-appellant was intelligently concluding that, due to the strength of the incriminating evidence, it was in defendant-appellant's best interests to enter a plea of guilty in spite of his proclaimed innocence. It is defendant- appellant's position that, since the trial court failed to 1 See North Carolina v. Alford (1971), 400 U.S. 25. -12- conduct the necessary inquiry pursuant to Alford, the acceptance of defendant-appellant's plea was in error. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR ALFORD PLEA. In North Carolina v. Alford (1971), 400 U.S. 25, 38, the United States Supreme Court found that a plea of guilty linked with a claim of innocence regarding the underlying offense may be accepted by the trial court provided the defendant intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. Applying Alford, this court has determined that it is reversible error to accept a guilty plea coupled with a claim of innocence when the record is "devoid of a basic factual framework against which the trial court could weigh the appellant's claims of innocence against her willingness to waive trial." State v. Habart (Oct. 19, 1995), Cuyahoga App. No. 68545, unreported citing to State v. Casale (1986), 34 Ohio App.3d 339, 340. C. THE TRIAL COURT DID NOT ERR IN ACCEPTING DEFENDANT-APPELLANT'S GUILTY PLEA. In the instant case, a review of the relevant portion of the plea hearing reveals the following exchange: Are you satisfied with the representations you have received by your attorney? THE DEFENDANT: Yes, sir, I sure am. THE COURT: Is there anything about the case or these proceedings you do not -13- understand and would like someone to more fully explain it to you? THE DEFENDANT: No. THE COURT: So are you guilty of rape as defined in count one? THE DEFENDANT: You know, I plead guilty to get the life sentence out. THE COURT: Okay. But you have to tell me whether or not you want to plead to rape, deleting the force, which negates the life potential in front of the jury. But you have to tell me whether or not you are guilty of the rape in count one. THE DEFENDANT: Guilty. THE COURT: Let's go back. So I have to ask you, are you guilty of count one rape, of the indictment, as amended that on November 9th, 1993, you, Kenneth McCown engaged in sexual contact, with Denise Firman? MR. BELL: Your Honor, that will be conduct. Excuse me. THE COURT: What did I say? MR. MOLNAR: Contact. THE COURT: Conduct, with Denise Firman, Denise Firman being under the age of thirteen years, to wit, date of birth November 12th of 1991 (sic), how do you plead, do you plead guilty or not guilty? THE DEFENDANT: Guilty. THE COURT: Okay. (Tr. 12, 13). Contrary to defendant-appellant's assertion, at no time during the entire plea hearing did defendant-appellant profess to be innocent of any of the charges contained in the indictment. The -14- statement, "You know, I plead guilty to get the life sentence out.", can be construed as one of the motivating factors present which defendant-appellant considered in deciding not to take the case to trial but does not qualify as a proclamation of innocence. In addition, the trial court, in an effort to clarify defendant-appellant's statement, allowed defendant-appellant the opportunity to plea a second time to the amended first count. When asked a second time, defendant-appellant repeated his initial admission of guilt. For the foregoing reasons, this court finds that the plea in question does not constitute an Alford plea and the trial court did not err by accepting the plea without conducting an Alford-type inquiry. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Kenneth McCown's, defendant-appellant's, third and final assignment of error states: THE TRIAL COURT VIOLATED CRIMINAL RULE 11 WHEN IT FAILED TO INFORM THE APPELLANT THAT THE OFFENSE TO WHICH HE WAS ENTERING A PLEA OF GUILTY WAS NON-PROBATIONABLE, AS REQUIRED BY CRIM.R. 11(C)(2)(a). A. THE ISSUE RAISED: CRIM.R. 11. Defendant-appellant argues, through his third and final assignment of error, that the trial court failed to comply with the mandates of Crim.R. 11(C)(2)(a). Specifically, defendant- appellant maintains that the trial court failed to inform him that the offense to which he was entering a plea of guilty, i.e., -15- rape, was a non-probationable offense and therefore his guilty plea should be vacated. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW FOR CRIM.R. 11(C)(2)(a). (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. The primary purpose of the Crim.R. 11(C) inquiry is the determination by the court that a defendant entering a plea of guilty does so voluntarily and with the understanding that he is waiving his constitutional rights. State v. Nero (1990), 56 Ohio St.3d 106; State v. Stewart (1977), 51 Ohio St.2d 86. The inquiries are designed to rule out threat, coercion, and plea bargaining as improper motivations for the plea, or to establish a defendant's awareness of the rights he will forfeit and the maximum sentence to which he may be subjected, and are means to assure the court that the plea is voluntary. State v. Smith (September 22, 1994), Cuyahoga App. No. 65192, unreported. In determining whether a defendant's guilty plea was entered knowingly and voluntarily, this court's inquiry is not limited to the information provided to the defendant by the trial court at the plea hearing, rather, this court examines the totality of the -16- circumstances surrounding the plea. "A defendant may learn of information not relayed to him by the trial court but from other sources, such as his attorney." See Riggins v. McMackin (6th Cir. 1991), 945 F.2d 790 (citations omitted); see, also, North Carolina v. Alford, supra. C. DEFENDANT-APPELLANT'S PLEA WAS KNOWING AND VOLUNTARY. In the case sub judice, a review of the record demonstrates that the trial court substantially complied with the mandates of Crim.R. 11 enabling defendant-appellant to enter a knowing and voluntary plea to the amended indictment. While it is true that the trial court failed to state on the record that the amended count of rape was a non-probationable offense, the prosecution stated on two separate occasions during the plea hearing that the offense in question was, in fact, non-probationable. In addition, the trial court informed defendant-appellant of the possible sentences that could be imposed for the rape in count one as well as for the counts pertaining to gross sexual imposition and domestic violence. Under the totality of the circumstances, it is apparent from the record that defendant- appellant understood that, by entering a plea of guilty to the amended rape charge, the trial court was required to impose a mandatory sentence of incarceration eliminating the possibility of probation. State v. Nero, supra. Accordingly, defendant-appellant's third and final assignment of error is not well taken. Judgment of the trial court is affirmed. -17- -18- 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. LEO M. SPELLACY, C.J., CONCURS; TIMOTHY E. McMONAGLE, J., DISSENTS IN PART AND CONCURS IN PART WITH DISSENTING OPINION. DAVID T. MATIA 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 clerk per App.R. 22(E). See, also S.Ct. -19- Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69683 STATE OF OHIO : : Plaintiff-appellee : : vs. : DISSENTING OPINION : KENNETH McCOWN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 31, 1996 TIMOTHY E. McMONAGLE, J., DISSENTING IN PART AND CONCURRING IN PART: I respectfully dissent from the opinion of the majority only as to the appellant's first assignment of error and would vacate the appellant's guilty plea accepted by the trial court to the offense of gross sexual imposition. Herein, the defendant-appellant was prosecuted pursuant to R.C. 2907.05(A)(1): (A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: - 2 - (1) The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force. (Emphasis added.) This statute specifically uses the words "not the spouse of the offender." Even the prosecutor at the time of the plea purposely avoided using the "not the spouse of the offender" wording and, in fact, inserted the words "Darlene McCown." At the very least, this substitution is a tacit admission that the crime of gross sexual imposition of a spouse does not fit this specific factual situation. Darlene McCown is, in fact, the spouse of the offender. The affirmance by the majority turns on their determination that gross sexual imposition is a lesser included offense of felonious sexual penetration and, therefore, a plea to a lesser included is permissible. An offense may be a lesser included offense of another if: (1) the offense carries a lesser penalty than the other; (2) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (3) some element of the greater offense is not required to prove the commission of the lesser offense. State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311, modified; State v. Deem (1988), 40 Ohio St.3d 205, paragraph three of the syllabus; State v. Waszily (1995), 105 Ohio App.3d 510. - 3 - The cases relied on by the majority for the proposition that gross sexual imposition is a lesser included offense of felonious sexual penetration are distinguishable from the case sub judice. In each of those cases, the victim was not the spouse of the offender. Where, as here, the victim is the spouse of the offender, it cannot be said that gross sexual imposition is a lesser included offense of the indicted crime of felonious sexual penetration. It is clear that, in this instance, the greater offense, felonious sexual penetration, can be committed without the lesser offense of gross sexual imposition automatically being committed because gross sexual imposition contains the additional element of the victim not being the spouse of the offender. As a result, I do not see that the case relied on by appellant is distinguishable here. The colloquy which took place at the time of the plea is as follows: THE COURT: Okay. Second count is count four, as amended, are you guilty of gross sexual imposition, in violation of Ohio Revised Code 2907.05, that on November 10, 1993, you Kenneth McCown -- Mr. Bell. MR. BELL: Yes, your Honor, that would be the defendant had sexual contact with Darlene McCown, purposely compelling her to submit by force or threat of force. - 4 - THE COURT: Okay. Thank you. Mr. McCown, are you guilty of gross sexual imposition that on November 10, 1993, you had sexual contact with Darlene McCown, purposely compelling her to submit by force or threat of force? DEFENDANT: Yes. THE COURT: Okay. How do you plead to that, guilty or not guilty? DEFENDANT: Guilty. Under these circumstances, where both the prosecutor and the court misstated the elements of the offense to which the defendant-appellant was to plead and deleted the language of the statute which would have placed the defendant-appellant on notice that he could not be convicted of such an offense, it cannot be said that the defendant-appellant's plea was knowingly, intelligently and voluntarily made. State v. Fletchinger holds that the acceptance of a guilty plea violates a defendant's right to due process when each of the following three conditions are met: (1) the defendant pleads guilty to an offense which is not a lesser included offense of the indicted offense; (2) the defendant is not informed of the additional elements of the offense to which he pleads guilty; and (3) under the facts of the indictment, the defendant cannot have committed the offense or be convicted or it. See, also, State v. Adams (Oct. 31, 1985), Cuyahoga App. No. 49682, unreported; State v. Fisher (Dec. 18, 1986), Cuyahoga App. No. 52210, unreported. - 5 - Here, the offense of gross sexual imposition is not a lesser included offense of the indicted offense. The appellant was clearly not informed of the additional, required elements of the offense to which he pled guilty. The appellant could not have committed the offense of gross sexual imposition of his wife or be convicted of it. Therefore, as the court in Fletchinger unequivocally states, and I agree, "the court erred by accepting defendant's guilty plea to a crime for which [h]e could neither be charged nor convicted under the facts alleged in the indictment." Id. at 77. Accordingly, I would vacate the plea of the appellant as to the charge of R.C. 2907.05(A)(1) only and remand the matter to .