COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 70038, 70039, 70040, and 70041 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FRANCIS BARRETT, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR.246304; 246874A; 246878B; and 244843B; JUDGMENT : Reversed and remanded. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Cuyahoga County Prosecutor Ralph M. Klopp, Esq. By: Diane Smilanick, Esq. 530 Leader Building Assistant Prosecuting Atty. 526 Superior Avenue The Justice Center Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, P.J.: Francis Barrett, Jr., defendant-appellant ("appellant"), seeks to have his guilty plea set aside on the ground that the trial court failed to substantially comply with Crim.R. 11. Upon this court's review of the trial court's record, we conclude that the trial court committed reversible error for the reasons set forth herein. A Cuyahoga County Grand Jury returned a multi-count indictment against appellant in Case Nos. 244843, 246304, 246874 and 246878. In Case No. 244843, appellant was charged on count one with aggravated burglary in violation of R.C. 2911.11, with two aggravated felony specifications. Appellant was charged in Case No. 246304, with one count of robbery in violation of R.C. 2911.02, with two aggravated felony specifications. Appellant was charged in Case No. 246874, for aggravated arson in violation of R.C. 2909.02, with two aggravated felony specifications. Finally, in Case No. 246878, appellant was charged with forgery in count one, a violation of R.C. 2913.31, with two violence specifications; uttering in count two, a violation of R.C. 2913.31, with two violence specifications; theft in count three a violation of R.C. 2913.02, with specifications for seven prior theft convictions and two violence specifications; and receiving stolen property in count four, a -3- violation of R.C. 2913.81, with specifications for seven prior theft convictions. On May 16, 1990, appellant entered the following guilty pleas. In Case No. 246874, appellant pled guilty to one amended count of aggravated arson, without the specifications, and the other counts were nolled. In Case No. 246878, appellant pled guilty to theft in count one, with specifications for seven prior theft convictions, and to receiving stolen property in count four, with specifications for seven prior theft convictions; counts one and two were nolled. Appellant was sentenced on June 12, 1990 in Case No. 244843, to a term of ten to fifteen years, with three years actual incarceration. In Case No. 246304, appellant was sentenced to a term of ten to fifteen years, with eight years actual incarceration; in Case No. 246874, to a term of ten to twenty- five years with ten years actual incarceration; and in Case No. 246878, to a term of three to ten years. All sentences were ordered to run concurrently. In this delayed appeal, appellant raises the following assignment of error: I. WHETHER OR NOT THE TRIAL COURT SUBSTANTIALLY COMPLIED WITH OHIO CRIMINAL RULE 11, IN PARTICULAR RULE 11(C)(2)(a). In this sole assignment of error, appellant contends that the trial court failed to substantially comply with Crim.R. 11(C)(2)(a). Appellant maintains that the trial court failed to advise him that in Cases Nos. 244843 and 246304, sentencing -4- mandated actual non-probational incarceration. R.C. 2929.11(B)(1)(b) and (B)(2)(b). However, the state of Ohio ("the state") argues that appellant's contention is devoid of merit, as the trial court substantially complied with Crim.R. 11 when it accepted appellant's guilty pleas. The trial court apprised appellant of his constitu-tional rights and the possible length of his sentences. Crim.R. 11, which pertains to pleas and a defendant's rights upon pleas, provides, in pertinent part: (C) Pleas of Guilty and No Contest in felony cases. (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 advised 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 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 -5- he cannot be compelled to testify against himself. Crim.R. 11 is concerned with a defendant's rights upon enter-ing a plea and also sets forth the procedure to be followed when such plea is taken. Crim.R. 11 includes all of a defendant's constitutional rights as stated in the Fifth and Sixth Amendments of the United States Constitution. In order for a plea of guilty to be valid in a felony case, all of the procedural requirements of Crim.R. 11 must be scrupulously adhered to; otherwise the guilty plea is void. State v. Buchanan (1974), 43 Ohio App.2d 93. When a trial court accepts a guilty plea from a defendant, "substantial compliance" with the procedural requirements of Crim.R. 11(C) is mandated. The standard for determining whether a trial court has properly accepted a guilty plea under Crim.R. 11 is substantial compliance. State v. Stewart (1977), 51 Ohio St.dd 86. Substantial compliance is determined upon a review of the totality of the circumstances to determine that no prejudice has resulted to defendant. State v. Flint (1986), 36 Ohio App.3d 4. The test is whether the plea would have been otherwise been made. Id at 6. Crim.R. 11(C)(2)(a) requires that the trial court inform a defendant before it accepts the defendant's plea, "that he is not eligible for probation." However, the Ohio Supreme Court has held that a defendant is not prejudiced by the trial court's -6- failure to comply with Crim.R. 11(C)(2)(a) when the defendant knew he was ineligible for probation. State v. Nero (1990), 56 Ohio St.3d 106. In addition, appellant must show that he was prejudiced by the trial court's failure to comply with Crim.R. 11. Id. There is not substantial compliance with Crim.R. 11(C)(2)(a) when: (1) the trial court fails to inform the defendant that he is not eligible for probation, or the circumstances do not show that defendant knew he was not eligible and (2) the trial court fails to accurately inform the defendant of the maximum penalty involved. State v. Calvillo (1991), 76 Ohio App.3d 714. See, also, State v. Hawk (1994), 81 Ohio App.3d 296. Appellant submits the transcript serves to substantiate his contention that the trial court failed to comply with Crim.R. 11(C). Our review of the record shows that appellant was not advised that his sentence was non-probational. In Case No. 244843, the trial court advised appellant of the constitutional rights he was waiving by pleading guilty. However, the transcript does not demonstrate that appellant was made aware or advised that the sentence for this offense mandated actual non-probational incarceration. An entry of a waiver and plea form is not contained in the record which would demonstrate that appellant was aware that he was ineligible for probation. Similarly, in Case No. 246304, the transcript does not indicate that appellant was advised at the time he entered his plea that he would be ineligible for probation. Moreover, the -7- record does not contain an entry of waiver or plea form to indicate appellant was aware that he was ineligible for probation. We are not persuaded by the state's argument that the trial court scrupulously complied with Crim.R. 11 requirements because the trial court informed appellant of the maximum sentence. In this instance, the state misses the gravamen of appellant's appeal, i.e., that appellant was neither informed nor advised that Case Nos. 244843 and 246303 carried mandatory, non- probational incarceration. The states cites Nero to support its contention that the court complied with the requirements of Crim.R. 11. In Nero, the Ohio Supreme Court found that the trial court had substantially complied with Crim.R. 11 when it accepted a guilty plea from appellant. In Nero, appellant had been indicted for aggravated burglary, robbery, four counts of rape, attempted burglary, possession of criminal tool, and grand theft. At the plea hearing, appellant pled guilty to aggravated burglary, rape and attempted aggravated burglary. The trial court advised him of the constitutional rights he was waiving by entering a guilty plea, along with the possible maximum and minimum penalties. On appeal to this court appellant argued that the trial court had not substantially complied with Crim.R. 11 because he had not been informed that he was not eligible for probation. This court reversed the decision of the trial court. Id. at 106. However, the Ohio Supreme Court held that the trial court had -8- substantially complied with Crim.R. 11. The transcript indicated appellant was aware that he was not going to receive probation. Id. at 108. The case at bar is easily distinguished from Nero. First, the trial court did not inform appellant that he would receive actual non-probational incarceration. Second, the transcript does not indicate that appellant was aware that he was not going to receive probation. Stewart is also cited by the state to support its contention that appellant's assignment of error is devoid of merit because the trial court substantially complied with Crim. R. 11. In Stewart, appellant was indicted for two counts of aggravated murder with specifications, and on counts of kidnapping and aggravated robbery. Appellant entered a plea of guilty to a lesser included offense of murder, and the remaining counts of the indictment were dismissed. Appellant in proffering his guilty plea, executed a petition to enter plea of guilty in open court. The trial court did not inform appellant that he was not eligible for probation. Rather, the trial court informed appellant of the maximum penalty applicable to the offense he was pleading. On appeal, appellant argued the trial court did not comply with Crim. R. 11. The court affirmed the trial court's acceptance of the guilty plea on the basis that at the time the guilty plea was entered, appellant was advised of the -9- consequences of his plea, and that he faced imminent incarceration. Id. at 92. We find that the facts of this case to be dissimilar to the facts in Stewart. First, there is no language in the plea transcript that indicated that appellant knew that the pleas that he was making carried mandatory incarceration. Second, appellant did not execute a petition. We are not persuaded by the state's contention that appellant was not prejudiced when the trial court failed to advise him that the offenses carried mandatory, actual non-probational incarceration. The test is whether or not the plea would have otherwise been made. Stewart at 93. Appellant's plea agreement did not involve a substantial benefit to appellant. Appellant pled guilty to two aggravated first degree felonies with two aggravated felony specifications in each, as indicted. The two entered pleas mandated ten to twenty-five years each, with ten years actual incarceration each. We would also note that the record before this court indicates that appellant was of invaluable assistance to the Cuyahoga County Prosecutor. The Cuyahoga County Prosecutor's Office informed the Ohio Parole Board that appellant's assistance was instrumental to the arrest and conviction of a career criminal. The factual circumstances indicate that appellant may have pled guilty with the understanding that his assistance to the Cuyahoga County Prosecutor's Office would result in a plea arrangement that did not mandate actual non-probational -10- incarceration. In the alternative, appellant may have chosen not to enter a guilty plea had he been made aware of the fact that he would receive non-probational incarceration despite his assistance to the Cuyahoga County Prosecutor's Office. Based on the record before this court, we can not conclude that the trial court substantially complied with Crim.R. 11 when the record does not demonstrate that appellant was advised that he was ineligible for probation when he entered guilty pleas in two of his cases. Accordingly, appellant's assignment of error is sustained. Judgment is reversed and the pleas are vacated. -11- It is ordered that appellant recover of appellee his 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 Cuyahoga County Common Pleas Court to carry this judgment into execution. 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 TIMOTHY E. MCMONAGLE, J. CONCUR PRESIDING JUDGE SARA J. HARPER 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 .