COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69972 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY JOHNSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-277280 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES H. BRAGG, ESQ. CUYAHOGA COUNTY PROSECUTOR The Courtyard Office Park BY: CRAIG T. WEINTRAUB, ESQ. 7055 Engle Road, Suite 1-103 ASSISTANT COUNTY PROSECUTOR Middleburg Hts., Ohio 44130 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Anthony Johnson appeals from his guilty plea to two counts of aggravated robbery with firearm specifications. For the reasons set forth below, we affirm. On March 4, 1992, defendant was indicted pursuant to a three count indictment. Count One charged defendant with the aggravated robbery of Demitrius Morris, with a firearm specification. Count two charged defendant with he aggravated robbery of Gwendolyn Pearson, and also alleged a firearm specification. Count three charged defendant with having a weapon while under disability, with a firearm specification. On May 28, 1992, defendant entered guilty pleas to counts one and two, and the state dismissed count three. The court then sentenced him to concurrent terms of five to twenty-five years imprisonment plus "three years consecutive for firearm specification." Defendant now brings this delayed appeal, advancing four errors for our review, and two additional errors argued pro se. I. Defendant's pro se assignments of error state: THE COURT OF COMMON PLEAS LACK [SIC] SUBJECT MATTER JURISDICTION OVER DEFENDANT RESULTING IN THE INDICTMENT CONTRARY TO CRIM. R. 3 AND CRIM. R. 7 (A)-(D) AND ARTICLE I, SECTION 10 OF THE CONSTITUTION, AND THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, PROCEDURAL DUE PROCESS AND DUE PROCESS PROTECTION GUARANTEED IN CRIMINAL CAUSES. - 3 - THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT THE CRITICAL STAGE OF A PRELIMINARY HEARING WITHOUT A COMPLAINT PROPERLY FILED AND NO ARREST MADE ON SIMILAR COMPLAINT DEFECTIVE ON ITS FACE IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION. These assignments of error share a common basis in law and fact, and we therefore will consider them together. Within these assignments of error, defendant asserts that his indictment was defective because the second count of the indictment which charged him with the aggravated robbery of Gwendolyn Pearson was not preceded by a complaint filed in the Cleveland Municipal Court. The Fifth Amendment of the Constitution of the United States provides in relevant part as follows: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury ****. Likewise, Article I, Section 10, of the Constitution of Ohio provides in relevant part: *** no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury; *** to demand the nature and cause of the accusation against him, and to have a copy thereof; ****. In light of this purpose, the law of Ohio has consistently held that an indictment or charging affidavit must set forth all essential elements of the crime charged or it is invalid. State v. Burgun (1976), 49 Ohio App.2d 112, 116. Further Crim. R. 7 provides in relevant part as follows: (A) Use of indictment or information. A felony which may be punished by death or life imprisonment shall be - 4 - prosecuted by indictment. All other felonies shall be prosecuted by indictment, except that after a defendant has been advised by the court of the nature of the charge against him and of his right to indictment, he may waive that right in writing and in open court. Where an indictment is waived the offense may be prosecuted by information, unless an indictment is filed within fourteen days after the date of waiver. If an information or indictment is not filed within fourteen days after the date of waiver, the defendant shall be discharged and the complaint dismissed. This subdivision shall not prevent subsequent prosecution by information or indictment for the same offense. A misdemeanor may be prosecuted by indictment or information in the court of common pleas, or by complaint in courts inferior to the court of common pleas. An information may be filed without leave of court. Finally, Crim. R. 33(E) provides: No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of: (1) An inaccuracy or imperfection in the indictment, information, or complaint, provided that the charge is sufficient to fairly and reasonably inform the defendant of all the essential elements of the charge against him. By application of all of the foregoing, it is clear that no error has occurred. All of the charges leveled against defendant were brought pursuant to an indictment, and an additional complaint with respect to the charge that defendant committed an aggravated robbery upon Pearson was not required. We further note that within his pro se brief, defendant raises an additional claim of discriminatory prosecution. This claim is completely unsupported by any showing that he has been singled out for prosecution, or that the prosecution was invidious or in bad faith and therefore must fail. See, e.g., State v. Freeman (1985), - 5 - 20 Ohio St.3d 55, 58. The pro se assignments of error are overruled. II. The remaining assignments of error, advanced by counsel, likewise share a common basis in law and fact and provide: THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY MADE SINCE THE COURT DID NOT SUFFICIENTLY EXPLAIN TO HIM THE MEANING OF THE TERM "NON-PROBATIONABLE OFFENSE." THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE THE COURT DID NOT EXPLAIN TO THE APPELLANT THE MINIMUM AMOUNT OF TIME HE WOULD ACTUALLY HAVE TO SPEND IN PRISON. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE SINCE THE COURT DID NOT EXPLAIN TO THE APPELLANT THAT HE WOULD HAVE TO SERVE THREE YEARS ACTUAL TIME FOR THE FIREARM SPECIFICATION. THE APPELLANT'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUN- TARILY MADE SINCE THE COURT FAILED TO MAKE A DETERMINATION THAT APPELLANT'S GUILTY PLEAS WERE MADE VOLUNTARILY. Guilty pleas are governed by Crim. R. 11 which provides in relevant part: (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 - 6 - 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. Thus, before accepting a guilty pleas the trial court must inform the defendant that by pleading guilty, we is waiving the rights enunciated in Crim. R. 11(C)(2). In determining whether the trial court has satisfied its duties, reviewing courts have dis- tinguished constitutional and non-constitutional rights. See State v. Sims (May 24, 1995), Summit App. Nos. 16841, 16936, unreported; State v. Gibson (1986), 34 Ohio App.3d 146, 147. Under the more stringent standard for constitutionally protected rights, a trial court's acceptance of a guilty plea will be affirmed only if it engages in meaningful dialogue with the defendant which, in substance, explained the pertinent constitutional rights "in a manner reasonably intelligible to that defendant." State v. Ballard (1981), 66 Ohio St.2d 473, paragraph two of the syllabus. Under the broader standard for rights not protected by the constitution, reviewing courts consider whether the trial court substantially complied with the requirements of Crim. R. 11(C)(2) and the defendant subjectively understood the implications of his plea and the nature of the rights he is waiving. State v. Nero (1990), 56 Ohio St.3d 106, 108. Finally, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently and voluntarily made must show a prejudicial effect. Id. - 7 - The supreme court has observed that there is no easy or exact way to determine what someone subjectively understands. State v. Carter (1979), 60 Ohio St.2d 34, 38; accord State v. Flint (1986), 36 Ohio App.3d 4, 7. The Carter court stated: If the defendant receives the proper information, then we can ordinarily assume that he understands that informa- tion. [In deciding whether defendant had the required information] we look at all the particular facts and circumstances surrounding the case. Moreover, under the totality of the circumstances, a trial court may be justified in concluding that a defendant has drawn an understanding from sources other than the trial court. State v. Rainey (1982), 3 Ohio App.3d 441, 442. As is relevant to the first assignment of error, the trial court must advise the defendant, if applicable, that he is not eligible for probation. Crim. R. 11(C)(2)(a); State v. Calvillo (1991), 76 Ohio App.3d 714, 718; State v. Nero, supra. The requirement to inform a defendant that he is not eligible for probation also applies where defendant is precluded by statute from receiving probation. State v. Alamo (April 21, 1994), Cuyahoga App. No 64096, unreported; citing State v. Walton (1977), 50 Ohio App.2d 386. Nonetheless, where the court does not personally advise the defendant that he is not eligible for probation, there is substantial compliance with the requirements of the rule where circumstances indicate that defendant knew he was not eligible for probation and no prejudice is shown. State v. Nero, supra. In this instance, the trial court undertook a colloquy with - 8 - defendant prior to the plea, and defendant stated that he had previously been convicted of a felony. The trial court then asked whether defendant received probation, and defendant indicated that he did not; he served over eight months on that conviction. (Tr. 7). Thereafter, the court informed defendant that the instant offenses were non-probationable and defendant indicated that he understood. (Tr. 12). From the foregoing, the court properly concluded that defendant subjectively understood that he was not eligible for probation with regard to the instant offenses. The first assignment of error is overruled. As is relevant to the second assignment of error, the court must satisfy itself that the defendant knows the maximum penalty applicable to the offense involved. Crim. R. 11(C)(2)(a). State v. Gibson, supra. In this regard, comments by the prosecutor concerning the maximum penalty are relevant to determining whether the court had reason to believe that the defendant knew the maximum potential penalty before entering the plea. Id. Knowledge of maximum and minimum sentences is not constitutionally required, State v. Flint, supra, and, indeed Crim. R. does not require a court to set forth the minimum sentence. In any event, indefinite sentences do state the minimum time for which the defendant can be imprisoned. State v. Carroll (1995), 104 Ohio App.3d 372, 374. In this instance, the prosecuting attorney and the trial court both discussed the indefinite sentence which could be imposed for the charges. The prosecutor, moreover, specifically stated that - 9 - the offenses carried "a penalty of three years on the gun specification as well as five, six, seven, eight *** as a minimum potential range." (Tr. 4). The court therefore met is duty of informing defendant of the maximum penalty and further informed him of the minimum penalty possible. The second assignment of error is overruled. As is relevant to the third assignment of error, this court has held that in order for the trial court to meet its duty of informing the defendant of the maximum penalty involved, it must, where there is a gun specification, inform the defendant that the sentence on the gun specification carries a mandatory period of actual incarceration which would be served consecutive to the sentence for the underlying felony. State v. Williams (1989), 65 Ohio App.3d 70, 74. Here, the court noted that the defendant "could be sentenced to five, six, seven, eight to twenty-five, and that for the gun specification there's an additional three year consecutive sentence." (Tr. 11). The third assignment is therefore without merit. Finally, as is relevant to the fourth assignment of error, the court must determine that the defendant is making the plea voluntarily. Crim. R. 11(C)(2)(a). In determining whether a guilty plea is voluntarily, intelligently, and knowingly made courts look to the totality of the circumstances. State v. Calvillo, supra, at 719; State v. Carter, supra. - 10 - Here, the record demonstrates that defendant acknowledged that he decided to enter the plea of his own free will (Tr. 10), that he discussed the matter with his attorney and the attorney advised him that it was in his best interest to enter into the plea, (Tr. 5) and that he acknowledged that he understood all of the charges and all of the penalties. (Tr. 14). Moreover, there is no evidence that the defendant did not voluntarily, intelligently and knowingly enter the plea. This claim is without merit. Affirmed. - 11 - 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, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE 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 .