COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70096 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOHN COSTELLA : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 7, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-207363 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JOHN J. RICOTTA, ESQ. Cuyahoga County Prosecutor 1265 West Sixth Street CHRISTOPHER L. FREY, ESQ. Cleveland, Ohio 44113 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -3- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, John Costella, appeals a decision by the trial court convicting him of four counts of aggravated robbery with gun specifications after a guilty plea. Costella assigns the following errors for our review: I. THE TRIAL COURT ERRED IN ITS FINDING THAT SOME FACTS CONTAINED IN THE PROSECUTOR'S FILE MAY HAVE BEEN SUFFICIENT TO PROVE THE FIREARM OPERABLE IN CASE NUMBER 207363. II. THE TRIAL COURT ERRED IN NOT FINDING THE APPELLANT WAS DEPRIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, BY COUNSEL'S FAILURE TO INVESTIGATE THE ISSUE OF OPERABILITY AND THE STATE'S LACK OF EVIDENCE TO ESTABLISH IT BEYOND A REASONABLE DOUBT, ALL IN VIOLATION OF APPELLANT'S FUNDAMENTAL RIGHT TO COMPETENT COUNSEL AND A FAIR TRIAL AS PROTECTED BY THE SIXTH AMENDMENT, THE FOURTEENTH AMENDMENT AND THE OHIO AND UNITED STATES CONSTITUTION. III. THE TRIAL COURT ERRED IN NOT RULING THAT THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY COUNSEL'S FAILURE TO ADVISE THE DEFENDANT THAT PLEADING TO FOUR SEPARATE CASES WITH FOUR SEPARATE GUN SPECIFICATIONS, MANDATED THE GUN SPECIFICATIONS, BY OPERATION OF LAW, MUST BE RUN CONSECUTIVELY TO ONE ANOTHER, ALL IN VIOLATION OF APPELLANT'S FUNDAMENTAL RIGHT TO COMPETENT COUNSEL, AND A FAIR TRIAL AS PROTECTED BY THE SIXTH AMENDMENT, THE FOURTEENTH AMENDMENT, THE OHIO AND THE UNITED STATES CONSTITUTIONS. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. In early 1986, John Costella was arrested and charged, along with three accomplices, with twenty-one counts of aggravated robbery, four counts of felonious assault and one count of -4- possession of criminal tools (Case nos. CR-206841, CR-207097, CR- 207363, and CR-207788). All of the aggravated robbery counts had firearm specifications. The trial court granted a motion for separate trials for the co-defendants. On September 2, 1986, Costella pleaded guilty to four counts of aggravated robbery, each with a gun specification. All of the remaining counts of the indictment were nolled. On September 18, 1986, one of Costella's accomplices in Case No. 207788, Steve Munici, was convicted of aggravated robbery with a gun specification and possession of criminal tools. However, the trial court found that the firearm was not operable and dismissed the firearm specification. On September 30, 1986, Costella was sentenced to four consecutive three-year mandatory sentences for the firearm specifications, to be served prior to concurrent eight to twenty-five year sentences on the aggravated robbery counts. Costella's motion for leave to file a delayed appeal was granted in July 1991. Costella's conviction was affirmed by this court on July 26, 1993. On April 5, 1995, Costella filed a petition for post-conviction relief. In the motion, Costella argued he was denied the effective assistance of counsel. He argued his attorneys failed to properly investigate the charge that a firearm was used in the commission of the aggravated robberies and improperly advised him to plead guilty to the firearm specification. -5- The trial court concluded: In Case No. 207788, on September 18, 1986, the court determined that the firearm at issue was not operable. Petitioner's counsel therefore knew, at the time of Petitioner's sentencing, that the court had found that the firearm used in Case No. 207788 was not operable, and the gun specification had been dismissed. Thus, this court finds that Petitioner has demonstrated that he was prejudiced by the actions of his counsel, with regard to the plea arrangement as it pertains to Case No. 207788. *** The gun was held to be inoperable only in Case No. 207788. Therefore, it is only in this case that this court can find that the gun specification should have been dismissed. Costella was resentenced to three years actual incarceration on case numbers 206841, 207097 and 207363 to run consecutively and prior to and consecutive with three concurrent terms of eight to twenty five years on the aggravated robbery counts. This appeal followed. In his first assignment of error, Costella argues the trial court erred in finding that some facts contained in the prosecutor's file may have been sufficient to prove the firearm was operable in Case No. 207363. Costella also argues that trial counsel was ineffective because they failed to investigate the issue of firearm operability. We reject Costella's attempt to challenge the sufficiency of the state's evidence with respect to the firearm specifications. Costella's guilty plea was an admission of factual guilt, which obviated the state's duty to prove the facts alleged in the indictment beyond a reasonable doubt. See State v. Wilson (1979), -6- 58 Ohio St.2d 52. Costella's first assignment of error is without merit. Despite his guilty plea, Costella may still raise the claim that he was prejudiced by ineffective assistance of counsel, which rendered his plea less than knowing and voluntary. State v. Barnett (1991), 73 Ohio App.3d 244. In his second assignment of error, Costella argues trial counsel's failure to properly investigate the charges deprived him of his right to effective assistance of counsel. "A petitioner's mere allegation that his guilty plea was the product of ineffective assistance of counsel, unsupported by affidavits or other supporting materials, is insufficient to overcome the presumption of regularity attending guilty plea proceeding that on their face comply with Crim.R. 11." State v. Strutton (1988), 62 Ohio App.3d 248, 252. Our review of the 9(C) and 9(E) statements filed in the trial court does not reveal anything to support Costella's claim. An error by counsel is not sufficient to establish ineffective assistance of counsel. Costella must also show that his defense was prejudiced by the error. See Strickland v. Washington (1984), 466 U.S. 668, 687. The record reveals that Costella was facing a total of twenty-six counts which would have resulted in significantly more prison time if he had been convicted of all the offenses charged. According to the 9(C) statement filed by the prosecutor, Costella was implicated in the robberies by one of his co-defendants, Nicholas Miller. Trial counsel was aware of -7- Miller's statement at the time the plea agreement was made. The plea arrangement negotiated by defense counsel resulted in the dismissal of twenty-two of the twenty-six counts on which Costella was indicted. Under the circumstances, Costella has not made the showing of prejudice that is essential to his claim of ineffective assistance of counsel. Because Costella has failed to show that he was prejudiced by the claimed errors of his trial counsel, his ineffective assistance of counsel claim must fail. See Strickland at 697. However, even if Costella had made the requisite showing of prejudice, his claim would still fail due to his failure to demonstrate an "unprofessional error" by his trial counsel. Attorney Jay Milano averred that his normal course of business was to "explain to clients in a criminal case the potential penalties involved, their rights and the rights that they would be waiving by entering a plea of guilty." He also averred the file contained nothing to indicate that Costella did not understand the proceedings or the court's instructions. The prosecutor's 9(C) statement, as appended and adopted by the trial court, contained a statement that the trial court explained the possible minimum sentence and the maximum sentence. At the motion hearing, Jay Milano testified that he submitted a memorandum to the trial judge arguing that the judge could run the gun specifications concurrently. The record indicates a valiant, though unsuccessful, effort to convince the sentencing judge to issue concurrent sentences. Even if we accept Costella's -8- argument that trial counsel's position was untenable, the record reveals that Milano fully advised Costella of the possible sentences he faced under the statute. Under the circumstances, Costella has not show that trial counsel's action fell outside the wide range of professionally competent assistance. See Strickland at 690. Costella's second assignment of error is overruled. Judgment affirmed. -9- 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. HARPER, J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .