COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70086 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN BOWERS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 19, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-246601 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. NICHOLAS K. THOMAS, ESQ. Cuyahoga County Prosecutor 21801 Lakeshore Blvd. ARTHUR A. ELKINS, ESQ. Euclid, Ohio 44123 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -3- PATRICIA ANN BLACKMON, J.: Defendant-appellant, John G. Bowers, appeals his convictions for one count of aggravated burglary and two counts of sexual battery and assigns the following errors for our review: I. THE DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. II. THE APPELLANT'S PLEA WAS NOT VOLUNTARILY AND KNOWINGLY MADE IN DENIAL OF HIS DUE PROCESS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. Bowers was indicted for one count of aggravated burglary with aggravated burglary specifications, one count of kidnapping with aggravated burglary specifications, and three counts of rape with aggravated felony specifications. In the trial court, Bowers was represented by Thomas M. Shaughnessy. He assisted Bowers in entering into a plea agreement in which Bowers would plead guilty to one count of aggravated burglary and two counts of sexual battery with no specifications. Before accepting the plea, the trial court conducted a meaningful dialogue with Bowers. During that discussion the following exchanges took place: THE COURT: You're also, sir, giving up the right to bring in witnesses who could testify for you. -4- Do you understand that? THE DEFENDANT: Yes, Your Honor. * * * THE COURT: And do you understand, Mr. Bowers, that by withdrawing your previously-entered pleas of not guilty and entering the articulated pleas of guilty here today, you are admitting your guilt as to each and every element of those offenses, Mr. Bowers? THE DEFENDANT: That's not true. MR. SHAUGHNESSY: Well, you can say "guilty" and - - THE DEFENDANT: He's my - - THE COURT: Would you like a minute with your lawyer? MR. SHAUGHNESSY: Well, I don't know whether we'll need a minute. THE DEFENDANT: He talks the best for me. MR. SHAUGHNESSY: Here. THE COURT: Off the record. (Thereupon, a discussion was had off the record.) MR. SHAUGHNESSY: Let me say this on the record. Your Honor, there is a factual dispute here. THE COURT: We don't accept those. MR. SHAUGHNESSY: No. There is a factual dispute. He is going to tell you that he is guilty, and he's entering that plea to avoid the possibility not the probability, the possibility of an actual mandatory minimum sentence of ten -5- years on all of those counts, and that's the underlying reason. He's this is a compromise. As the Court knows, or as the prosecutor knows, these people had a relationship. It's an ongoing relationship. I told him it's over, because the Court is going to tell him it's over, but there's two sides to it. We want to enter the plea and we want to say "guilty" to the three counts, and then we want to ask you if he can go to the Probation Department and tell his side. THE COURT: Do you fully understand, Mr. Bowers, the nature of the charges against you? THE DEFENDANT: Yes. The trial court subsequently accepted Bowers' guilty plea and the case was continued for sentencing. At the sentencing hearing, Bowers was sentenced to 5 to 25 years for aggravated robbery and one year for each count of sexual battery with all sentences to run concurrent. The sentence was suspended, Bowers was placed on two years probation and ordered to seek counseling through the Witness- Victim Program. Bowers subsequently violated his probation, and he was ordered to serve an additional term of probation. Bowers violated his probation a second time, and his original sentence was ordered into execution. This appeal followed. In his first and second assignments of error, Bowers challenges whether the trial court complied with Crim.R. 11 before accepting his guilty pleas. Crim.R. 11(C)(2) provides: -6- (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 he cannot be compelled to testify against himself. The standard for reviewing whether the trial court accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review. It requires an appellate court to review the totality of the circumstances and determine whether the plea hearing was in substantial compliance with Crim.R. 11(C). E.g. State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. Substantial compliance with Crim.R. 11(C) requires the trial court to engage the defendant on the record in a "reasonably intelligible" dialogue. See, e.g., State v. Ballard (1981), 66 Ohio St.2d 473. In his first assignment of error, Bowers argues the trial court erred by failing to properly inform the defendant of his right to compel witnesses to testify in his own defense as required by Crim.R. 11(C)(2)(c). Bowers concedes that "***rote recitation of Crim.R. 11(C) is not required, and failure to use the exact -7- language of the rule is not fatal to the plea. Ballard at 480. He, however, asserts the use of the word "could" was permissive language that did not accurately describe the compulsory nature of the process of compelling a witness to testify. Before accepting his plea, the trial court informed Bowers that among other rights, he was "***giving up the right to bring in witnesses who could testify for [him]." In determining whether Bowers was substantially informed of the right to compulsory process, this court must identify the operative language in the trial court's statement. "Who could testify" is not the operative language in the trial court's statement. When reading the trial courts statement as a whole, it's clear that the operative phrase is "the right to bring in witnesses" because it defines the defendant's right. The "compulsory process" is the "Process to compel the attendance in court of a person wanted there as a witness or otherwise***" by means of a subpoena or warrant. Black's Law Dictionary (5 Ed.Rev.1983) 151. The "right to bring in witnesses" implies the prospective witnesses does not have a choice and can be compelled to appear. Had the trial court simply said, you could or you are giving up the opportunity to bring in witnesses, then the compulsory nature of the process would not have been conveyed. In this case, the trial court did convey the true nature of the compulsory process. Accordingly, the trial court was in substantial compliance with Crim.R. 11(C)(2)(c). -8- In his second assignment of error, Bowers argues his plea was not made voluntarily and knowingly within the meaning of Crim.R. 11(C)(2) because he maintained his innocence and the trial court failed to determine whether there was a strong factual basis for accepting the pleas. Where the defendant interjects protestations of innocence into the plea proceedings, and fails to recant those protestations of innocence, the trial court must determine that the defendant has made a rational calculation to plead guilty notwithstanding his belief that he is innocent. This requires, at a minimum, inquiry of the defendant concerning his reasons for deciding to plead guilty notwithstanding his protestations of innocence, it may require, in addition, inquiry concerning the state's evidence in order to determine that the likelihood of the defendant's being convicted of offenses of equal or greater magnitude than the offenses to which he is pleading guilty is great enough to warrant an intelligent decision to plead guilty. State v. Padgett (1990), 67 Ohio App.3d 332, 338-339. See, also, North Carolina v. Alford (1970), 400 U.S. 25 (requires court to determine whether defendant is making a rational choice, notwithstanding defendant's protestations of innocence). During the plea hearing in this case, the trial court explained to Bowers that by entering a plea he was admitting to guilt. Bowers shouted out, "that's not true." Defense counsel then explained that there was a factual dispute between Bowers and the victim. Defense counsel further explained that, notwithstand- ing that factual dispute, Bowers was going to plead guilty as a compromise to avoid the possibility of an actual mandatory minimum sentence of ten years. After reviewing the dialogue between the -9- trial court, Bowers, and defense counsel, it is clear Bowers made a rational calculation to enter into the plea agreement. Bowers, however, argues the trial court's failure to inquire whether there was a strong factual basis for the plea was reversible error. We disagree. An inquiry into the state's evidence in this case would have been helpful, but it was not necessary to determine that the defendant was making an intelligent decision. Accordingly, we find Bowers' guilty plea was made voluntarily and knowingly, and the trial court was in substantial compliance with Crim.R. 11(C)(2). Judgment affirmed. -10- 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. JAMES D. SWEENEY, P.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON 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 .