COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69858 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION RONALD R. PAYNE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 15, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-298739. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Sherry F. McCreary 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 Ronald R. Payne, pro se #300-146 Ross Correctional Institution P.O. Box 7010 Chillicothe, Ohio 45601 SWEENEY, JAMES D., P.J.: Defendant-appellant Ronald R. Payne ("Payne") appeals from his negotiated plea of guilty to the offense of Attempted Aggravated Robbery in violation of R.C. 2911.01 and 2923.02. For the reasons adduced below, we affirm. A review of the record on appeal indicates that Payne was originally indicted for the offense of Aggravated Robbery (R.C. 2911.01). On March 14, 1994, the indictment was amended to Attempted Aggravated Robbery, to which Payne pled guilty. Subsequent to the preparation of a presentence investigation report, Payne was sentenced on April 6, 1994, to a term of 5 to 15 years imprisonment, which term was suspended and Payne was placed 1 on conditional probation for a period of one year. During the probation period, Payne was determined to have violated the conditions of his probation and the original sentence was ordered into execution on October 20, 1994. This delayed appeal, submitted on the briefs of the parties, followed presenting two assignments of error. These assignments will be addressed seriatim. I THE TRIAL COURT ERRED IN FAILING TO INQUIRE WHETHER THE DEFENDANT WAS SATISFIED WITH THE SERVICES OF HIS ATTORNEY THUS DENYING HIM OF HIS SIXTH AMENDMENT RIGHT UNDER THE UNITED 1 The conditions of the probation were: (1) seek gainful employment; (2) complete an alcohol abuse counseling program with follow-up care recommendations; (3) submit to random urinalysis; and, (4) perform community service in lieu of paying for court costs. - 3 - STATES CONSTITUTION AND UNDER ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. During the plea hearing of March 14, 1994, which the trial court conducted pursuant to Crim.R. 11, the following colloquy occurred between the court and the defendant: * * * THE COURT: Are you satisfied with the representation your attorney has given you? MR. PAYNE: Not thoroughly, but its sufficient, your Honor. (Emphasis added.) * * * See plea hearing transcript, at 5. It is appellant's argument that error occurred in the failure of the trial court to further question him as to the source of his dissatisfaction with his counsel's representation. This argument is without merit. First, as appellant recognizes in his brief, there is no requirement in Crim.R. 11 which mandates that a court, prior to accepting a plea of guilty in a felony case, must inquire into a defendant's satisfaction with his representation. Further, by his own admission, appellant stated that counsel's representation "was sufficient." A trial court is not required to address a defendant's unsubstantiated complaint concerning dissatisfaction with representation where that representation is admittedly "sufficient." Cf State v. Deal (1969), 17 Ohio St.2d 17. The first assignment is overruled. - 4 - II THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION. In this second assignment, appellant argues that he was denied effective assistance of counsel where counsel permitted the defendant to plead guilty to the amended indictment despite the defendant's counsel, at the sentencing hearing, maintaining that he had no weapon (in this case a walking cane which concealed a sword inside) while inside the store where the offense occurred. It is appellant's contention that if he had no weapon at the time of the offense, the most he could have been convicted of was the offense of Theft (R.C. 2913.02[A]). The transcript from the sentencing hearing, at 5-6, demonstrates that defendant's counsel, attorney Joseph P. O'Malley, stated the following while addressing the court: * * * MR. O'MALLEY: Thank you, your Honor. I did have an opportunity to review the presentence report. I have verified that Mr. Payne was in the Salvation Army drug program, and he had taken himself there. He completed 30 days of that program, when he was arrested on a capias that was issued by this Court. In addition, your Honor, the item that was stolen was a pair of sunglasses from Dillard's, and this was recovered, and at that time, Mr. Payne was living on the streets and had on him a walking cane which had a sword in it which he - 5 - used to protect himself as he slept on the streets. He did not use that -- he maintains he did not even have that in the store with him. (Emphasis added.) * * * The following standard of review was stated in State v. Elliott (1993), 86 Ohio App.3d 792, 794-795: The Ohio Supreme Court identified the standard governing claims of ineffective assistance of counsel in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. The court instructed that "[c]ounsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." Id. at 142, 538 N.E.2d at 380. It is unnecessary for a reviewing court to "'address both components of the inquiry if the defendant makes an insufficient showing on one.'" Id. at 143, 538 N.E.2d at 380. In addition, to establish prejudice in the context of a guilty plea challenge, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210. We note that this allegation, that defendant was not armed with a weapon during the offense, was not raised at the plea hearing. At the time of making the plea of guilty, there is nothing in the plea hearing transcript to suggest that Payne's plea was anything but voluntary, knowing and intelligent. Further, the record on appeal contains no demonstration by defendant-appellant that "but for counsel's errors, he would not have pleaded guilty - 6 - and would have insisted on going to trial." Hill v. Lockhart, supra. Assuming the allegation to be true, the failure of counsel to not present this allegation at the plea hearing does not demonstrate that counsel's performance at the plea hearing was deficient. Instead, it is more in the vein of a tactical decision which was used to obtain a very favorable sentence of probation on the amended indictment. Had counsel presented this alleged fact at the plea hearing, it is open to question whether the State would have offered the plea bargain and whether the trial court would have accepted a plea to the amended indictment. Its use at the sentencing hearing is again a tactical decision which was in furtherance of the mitigation of the sentencing options. Accordingly, there has been no showing of prejudice sufficient to sustain an allegation of ineffective assistance of trial counsel. The second assignment is overruled. Judgment affirmed. - 7 - 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. DAVID T. MATIA, J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY 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 journalization, at which time .